2nd Parliament · 1st Session
The President took the chair at 2.30 p.m., and read prayers.
The PRESIDENT.- I wish to lay upon the table of the Senate the report of the Joint Library Committee. As it is not a very long one, perhaps honorable senators would like to hear it read.
Honorable Senators. - Hear, hear.
Report read by the Clerk.
Senator TURLEY. - I desire to ask the Attorney-General, without notice, whether the information I asked for the other day in connexion with China oil is available?
Senator Sir JOSIAH SYMON.- I have not yet received the information. I shall inform my honorable friend immediately it is received, and take care that it is made available.
OLD AGE PENSIONS.
Senator Lt.-Col. NEILD. (New South
Wales). - I move -
(a) That, in the opinion of this Senate, it is desirable that a system of old-age pensions be established by and throughout the Commonwealth.
(b) That the Government of the Common- wealth be requested toenter into ne- gotiations with the Governments of the S tates constituting the Commonwealth, with a view to giving effect to the foregoing proposal.
That a Select Committee, with power to call for persons and papers, be appointed to inquire and report upon a system of old-age pensions, best suited to the conditions existing in the Commonwealth.
That such Committee consist of Senators . Gray, Trenwith, Stewart, McGregor, Pearce, Mulcahy, and Neild.
In moving this motion I shall not speak at. any length. I take it that there can be no possible doubt that the Senate will be prepared to reaffirm its previous decision. I am aware that a Select Committee has been appointed in another place, but on making close inquiry I find that the two Committees propose to occupy different spheres of action. The Select Committee of the other House has been appointed to investigate the question of finance. The aspect of this subject which I wish to have investigated is the most suitable system to adopt, in no way trespassing upon the work which is being carried out elsewhere. I give the names of those honorable senators I desire to see appointed, if they are willing to act, but of course it is open to the Senate to make another selection by ballot. I should be very glad to know whether there is any opposition on the part of the Government to the motion, because if there is no objection, I shall not take up further time.
Senator Sir Josiah Symon. - We cannot consent to the motion.
Senator Lt.-Col. NEILD. - In the other House the Government assented to the. appointment of a Select Committee without debate, to investigate the financial aspect of this subject. It strikes me as being very extraordinary that the Government may in one place be quite willing to investigate by Select Committee a system of finance, and in another place resist an inquiry as to the best method of making legal provision - for instance, as to the number of years which a person ought to be in the Commonwealth before being entitled to become a pensioner, the amount of the pension to be paid in any case, and the amount of private income which would disentitle a person to become a pensioner. In New South Wales a very extravagant system has been inaugurated, and a person who has a private income of £1 per week is permitted to become a State pensioner. It is deserving of very considerable inquiry, whether such a person should come upon the State for a pension of 10s. per week, because a provision of this kind must -unquestionably lead to extravagances in certain direction’s which operate as hardships in other directions. There are many features of the New South Wales system which are’ vastly extravagant. The large outlay has induced penuriousness in certain directions, and many persons who have some income are drawing pensions, while these are refused to those who are in much more necessitous circumstances, and refused chiefly on the ground of the unreasonably large sums which are being expended.
Senator Higgs. - Does not the honorable senator think that the appointment of a Select Committee by the Senate would be a reflection upon the other House and its Select Committee?
Senator Lt.-Col. NEILD. - I do not think that the Senate regarded the appointment of that Select Committee as a slight.
Senator Guthrie. - They have to ascertain how much is necessary.
Senator Lt.-Col. NEILD. - No doubt that would be part of the inquiry. If there is any possibility of clashing, it mightbe a happy thing for the two Committees to work jointly. I think it is desirable that such a Committee should be appointed. I ask, sir, that the three paragraphs of the motion may be put seriatim when the time comes for a vote to be taken.
Senator PEARCE (Western Australia). - Before the adjournment of the debate is moved, I would suggest to Senator Neild that he should include in his motion a proposition that the Committee shall have power to sit and confer with a similar Committee of the other House, with a view to a joint report being presented.
Senator Lt.-Col. Neild. - Hear, hear.
Senator PEARCE.- If the honorable senator would ask leave to amend his motion in that direction, it would disarm a great deal of the criticism which might otherwise be directed at it. It would be extremely unwise to have two reports and two sets of evidence. It is undoubted that the Senate has the right to appoint a Select Committee for this purpose, if it pleases. I feel sure that the other House, if we sent down a message, would instruct its Select Committee to sit and confer with ours. This is one of the most important questions which the Commonwealth has to deal with.
Senator Lt.-Col. Gould. - Would it not be very much better if some little time, say a fortnight, were allowed to elapse before Senator Neild asked leave to amend his motion ?
Senator PEARCE.- I think that Senator Neild has the right to ask for that leave before the debate is adjourned.
Senator Sir Josiah Symon. - On a point of order, sir, I desire to know whether the suggestion of Senator Pearce can be adopted, because the mover of this motion has concluded his speech. I think that it cannot be done now.
The PRESIDENT.- I do not think that an honorable senator who has moved a motion and resumed his seat, can afterwards ask leave to amend it, unless when he is replying. It might, perhaps, be done at the conclusion of the debate, but I do not think it can be done at the present time.
Senator Playford. - Any honorable senator can move to amend the motion.
Debate (on motion by Senator Lt.-Col. Gould) adjourned.
– I move -
That the Parliament of the Commonwealth of Australia desires to express -
I think it is quite in harmony with the work which the Senate is doing at the present time in connexion with the Conciliation and Arbitration Bill, that we should discuss and carry a motion of this kind. A few days ago, war appeared to be imminent between Great Britain and Russia - a war which, if it had taken place, would, I venture to say, have proved most disastrous to the interests of everybody concerned. War does not suit the party to which I have the honour to belong. War does not suit the workers with brain or hand in any country ; and anything that can be done to avoid war should be done by people holding responsible positions, as we do. I was extremely glad the other day to read a verbatim report of a portion of a speech delivered by the Prime Minister of Great Britain, Mr. Balfour, in which he said -
We and Russia have agreed to an International Commission under the Hague Arbitration Tribunal. There will be three inquiries - that of the Coroner, the Board of Trade, and the International Court. Count Benckendorff has been authorized to make the announcement that Russia expresses profound regret, for the incident, and promises that on the discovery of the facts any person found guilty by this Tribunal will be thereafter tried and punished adequately. Guarantees are now given against a recurrence of such incidents.
The statement of the Prime Minister of Great Britain at the meeting in Southampton, that there was a likelihood of a peaceful settlement of the dispute, met with an ovation ; and that oration was repeated throughout the United Kingdom, and indeed throughout the world. I do not think that we in Australia ought to be behind hand in expressing our appreciation at the decision arrived ai.
– How does the honorable senator know that a decision has been arrived at? It is only conjecture.
– I have already said that the Prime Minister of Great Britain has stated that England and Russia agreed to refer the dispute to the Hague Tribunal. This statement was made on the 31st October.
– That is a press report.
– Last week the honorable senator said that we could not believe the cablegrams in the newspapers.
Senator- HIGGS. - What I said was, that honorable senators ought not to pay too’ much attention to cables published by interested persons, who are desirous, apparently, of keeping up bitterness between these two nations.
– Who is the person who does that?
– No one does that.
– Those interjections lead me to quote a paragraph written by Mr. Holls, who was the representative of the United States at the Peace Conference at the Hague in 1899. Mr. Holls, in writing his report of the Convention, refers to the growing recklessness of the sensational press in civilized countries, and the recklessness of sensational writers.
– Does the honorable senator get that out of a newspaper?
– I will hand to the honorable senator a book to which he may refer, and he can check my quotation if it is wrong.
– Is not the honorable senator quoting from a newspaper which he holds iri his hand?
– We cannot place any reliance on these capitalistic newspapers !
– It is a distortion of my observations regarding sensational cablegrams published in the press, to say that I have condemned the newspapers as a whole. As one who was associated for years with newspapers, I say that in my opinion the press is the salt of the earth. But there are connected with the press certain individuals who, for reasons of their own, insert sensational reports, and write sensational articles, both on the capitalistic side, and also, I admit, on the labour side. I am happy to believe that this is not done to nearly the same extent by the writers in the labour press, as it is by those irresponsible and reckless persons who in war time are always ready to circulate sensational reports. Honorable senators are doing me a great wrong when they suggest that I condemn the press as a whole. This growing recklessness has, I suppose, reached its greatest height in the press of the United States of America, and is likely at any time to bring two nations into conflict. As Mr. Holls remarks, the Governments of the various countries in which the sensation mongers work up popular feeling, have a great difficulty in arriving at an amicable understanding with a nation with whom they may have a difference of opinion. The Convention under which the inquiry is to take place was arrived at at the Hague in 1899. The delegates showed the greatest anxiety and care to adopt every means to bring two nations which might have an international dispute into harmony with each other. The signatories to the Convention comprised representatives of Great Britain, Prussia, Belgium, Denmark, the United States, France, Russia, and thirteen other nations, who agreed to use their best efforts to insure the peaceful settlement of international disputes. The clause under which this inquiry is to take place provided that any inquiry that is held is to decide the facts. The decision does not, of course, legally bind the parties to agree to a certain decision, but, as Professor Harrison Moore, who is an authority, states in yesterday’s Herald, there can be no doubt that whatever decision is arrived at by this international inquiry-
– Russia will wriggle out of it.
– The parties will abide by it. I do not desire to introduce any acrimony into this debate, and I will not allow Senator Millen’s interjection to induce me to depart from the ways of peace. There is every reason why we should pass a motion ofthis kind. As regards the terms of the motion and my suggestion that we shall cable to Russia, let me say that I was at first disposed to leave out those words. But if the motion is to have any effect, we should send a communication - through the proper authorities of course - to Russia, to show that we, at this end of the world, take an interest in international affairs, and support the idea of settling international disputes by international arbitration.
– Does the honorable senator really believe that the motion will have any effect whatever?
– Every determination on the part of nations to settle their disputes by arbitration marks an advance in civilization. I cannot think that there will be any disinclination on the part of Russia to abide by the decision of this inquiry. The Czar himself was the originator of the Peace Convention.
– And he has complimented the Russian Admiral in command of the Baltic Fleet.
– And encouraged him.
– What should we do as a nation if the Commander of our Fleet - supposing we had one - were in trouble ? Should we believe everything that was said against him by the other side? I do not think we should. I ask honorable senators to exercise a little judicious discretion and to sift the news which they get. Every authority states that the Russian Government are extremely careful about what they make public. The great success of their diplomats lies in the secrecy which they generally observe. I do not know that it is positively correct that the Russian Czar did compliment the Admiral. It is possible that he did, but his message may have had reference to something else. It may have been an expression of good wishes on his part. It may be that some honorable senators may say that the departure of the Russian Fleet from Vigo was a breach of the agreement. But the departure of the Fleet is quite in accordance with the British Prime Minister’s speech at Southampton.
– Is the spiriting away of probable witnesses in accordance with the agreement?
- Mr. Balfour in his speech said -
Russia had promised liberal compensation, and the detention at Vigo of that partof the Fleet concerned in the incident, in order that the Naval authorities might ascertain what officers were responsible therefor.
We have received further information that four officers are to remain to give evidence.
The four officers who remain to give evidence are CaptainPlado, of the flagship Souvaroff ; Captain Otto, Lieutenant Ellis, and a senior officer, whose name is for the present withheld from publication.
Let me draw the attention of the Senate to the clause in the Convention under which this inquiry will take place. . The clause states that the reference of a matter to arbitration is not, unless there is an agreement to the contrary, to interfere with mobilization. Would it not be unfair to demand that the Baltic Fleet, which is on its way to try to succour the Russians who are shut up, and have been shut up for about eight months, at Port Arthur, should stay behind at the port of Vigo? Would not that be asking too much of any nation which had a spark of manliness?
– They may murder many more people before they get to the Far East.
– The honorable senator knows from Mr. Balfour’s speech that guarantees have been given with regard to the protection of neutral ships. Let me remind Senator Fraser of something which apparently he has forgotten. He is one of the most loyal men in the Senate. He had a great reverence for Queen Victoria, and he still reveres her memory. Let me remind him that the present Czarina is the youngest living daughter of the late Princess Alice, who was the favourite daughter of Queen Victoria, and that the little Czarevitch is the grand-nephew of the King of England and Queen Alexandra, and will be the first Russian Czar to have British blood in his veins. Surely, if anything will move the honorable, senator, it is the announcement of these facts. I dare say that those honorable senators who are in favour of international arbitration will be as ready as any others - if ever the time should unfortunately come when we cannot settle a dispute by arbitration - to take up arms in defence of their country. But, while that is so, we should never let an opportunity pass to bring the nations together so far as we in our little way can succeed in doing so.
– That will not be until the millennium.
– The honorable senator frequently refers to the millennium. But who is it that keeps the millennium back? Who is it that prevents the establishment of courts of international arbitration except those who, well-meaning enough, use disparaging terms about other nations, and suggest that there is no possibility of our ever succeeding in our aims ? I do not propose to take up any further time, as I understand that the Attorney-General wishes to proceed with the Concilation and Arbitration Bill. Therefore, I content myself with submitting the motion in the sincere hope that there will be no opposition, but that it will be carried on the voices.
– I need not say that I cordially appreciate the spirit which has influenced Senator Higgs in tabling this motion. If I may express it in a word, it is the spirit of peace. If this had been simply an abstract motion, approving of that great doctrine which we are all proud to .think is receiving much more international acceptance than it did at one time - namely, the desire to determine international disputes by arbitration - we should have felt, whether or not it was desirable to deal* with the matter at this stage, that we could not refrain from assenting, in order that this Parliament might breathe, so to speak, the spirit of peace, in connexion with this incident. But our object has already been accomplished. I venture to think in a more effective way, by a portion of the resolution which this Chamber unanimously adopted the other day. The third portion of that resolution expresses the earnest hope that the peace existing between the British Empire and the Empire of Russia will be preserved by a frank and honorable observance on. the part of Russia of her obligations. I think myself that no legislative assembly in the world could, with more dignity or impressiveness, have signified its desire that there should be peace in our time in relation to .this matter. Therefore, so far as the motion is intended to exhibit a spirit of peace on the part of this Senate, that has already been done in the most effective fashion. From that point of view I hope Senator Higgs will see that his motion is unnecessary. In the next place the motion, in so far as it is not a mere abstract expression in the direction I have indicated, rests on an assumption which we do not know to be true.
We are, of course, dependent on the enterprise of the newspapers for the information we receive to-day.
– “ Enterprise “ is the right word.
– Well, it is the word 1 prefer to use now in this connexion. From day to day we have the varying phases of a most serious international negotiation arising out of the incident with which we dealt the other day, and it seems to me that the information this morning shows that the incident is unhappily very far yet from a peaceful determination by any tribunal. When Senator Higgs gave notice of motion yesterday, the view which oppressed me, and, which, as courtesy demanded, I communicated to him, was that we were assuming that it had been decided that the incident should be adjusted practically by a reference to the Hague Tribunal. In the first place, that is not the fact. The reference to the Hague Tribunal - even construing the telegrams most favorably - is merely for the purpose of inquiry and report; it will settle or determine nothing. Even then, as a matter of inquiry and report - as the honorable senator will see - this reference is only one element in the adjustment which we hope will end amicably. We know, as Senator Higgs has just informed the Senate, that the finding of the tribunal will bind nobody, and no nation. I find in one of the cablegrams this morning the statement that A distinguished unionist supporter of the British Government, speaking at Aylesbury, has said that if the result of the International Commission’s inquiry be equivocal or unsatisfactory to the Powers concerned war may ensue. If there had been a binding arrangement between the two nations, of which we were authoritatively informed, to refer the matter for final arbitrament of the Hague Tribunal and to conclude the whole incident through that tribunal, it would have been a very different matter.
– We have the words oE the Prime Minister of England.
– I attach much more importance to the public sentiment of the nation, as expressed through individuals more or less irresponsible,, than I do to the careful and diplomatic phrases of even a Minister of the Crown.
– The Rothschilds know a thing or two about what is going to happen.
– That may be so; there is no point so sensitive in diplomacy as the pocket. Senator Higgs knows how highly I appreciate his sentiments in favour of peace ; but if we assent to the motion, we shall be assenting to an assertion of what we do not know to be the fact, and we shall be founding on that an appreciation or approval of a decision of those two countries which is not substantiated, and on which we should certainly abstain from expressing an opinion until we are satisfied it does exist. The situation, as Senator Higgs admitted, is greatly altered. The British Prime Minister intimated in the passage just read that a portion of the Russian Fleet would be detained at Vigo until at least witnesses were made available for the purposes of the inquiry. The British Prime Minister stated the point even more strongly than that, as I was reminded by an honorable member in another place - Mr. Balfour said that we were to keep in touch with the Baltic Fleet until the matter was satisfactorily adjusted. What is the result ? I am not saying whether it is right or reasonable that the fleet should not be detained, though I think-myself that it should. I think that that portion of the fleet which is the subject of complaint should be detained, and that the British Government or the British people will not be satisfied with four or five witnesses picked out by the Russian authorities. All the witnesses should be available at the investigation. Here we have what I think of itself is sufficient to satisfy Senator Higgs that it would be unwise - I say no more - for us to assume that there is to be a final arbitrament of this matter by the Hague Tribunal. We find that Count von Schonberg, an eminent Austrian jurist, who is a member of the Commission of Inquiry, is reported to have said that the Commission is entitled to hear the evidence of sailors who were eye-witnesses of the affair, independents of the witnesses tendered by the Russian Admiral. We have all had some experience of judicial inquiries. Should we expect anybody to be satisfied - should we expect Australia to be satisfied if she were directly concerned in the massacre, bv accident or otherwise, of our peaceful fellow-citizens pursuing their avocations - with’ a few witnesses selected by the persons accused ?
– Lt is ridiculous !
– In another newspaper the same eminent Austrian jurist is reported as saying that the International Commission is entitled to hear the evidence of sailors, independently of particular witnesses tendered by the Russians, and that that point has been emphasized. But there is another and more important factor even than that. The Russian Admiral, who in the final resort is, I hold, responsible to give an account and explanation, and to suffer punishment, if punishment is deserved, is permitted to escape the investigation and continue in command of the fleet.
– And is encouraged by the Czar.
– Of that I say nothing. I merely mention the incident for the purpose of urging on Senator Higgs chiefly that we cannot pass this motion, because it merely assumes what we should all be glad to believe, namely, that the final settlement is in the hands of this tribunal.
– The motion says nothing about a final settlement.
– The motion declares that it has been decided to refer the incident to the Hague Tribunal, and that would be susceptible of only one inference if cabled to England, namely, that we believe that the Dogger Bank incident as a whole has been referred for final settlement by the two nations to the Hague Tribunal. I do not think it would be wise on my part to further dwell on the matter; even the terms of the reference to the Hague Tribunal have not yet been agreed to. It is a reference for inquiry and report, and, as I have said, is only one element in the negotiations with a view to bringing about a peaceful result. The two parties are now seeking to settle and adjust the terms of reference, and from that point of view alone the motion is, at least, premature. But apart from the substance of the motion in that connexion, it is further objectionable. We are asked to pass this merely as an abstract resolution, and make it depend on the concurrence of the other House. That is not a position of dignity for us to take up. It will be only in the event of the concurrence of the other House that the motion can be of any effect ; if that concurrence be refused,’ it will be so much waste-paper. Senator Higgs has, I think, conveyed in the motion his desire, and if it were, as I say, merely an abstract resolution, we could all agree with it. But the purpose aimed at has been gained by the motion already adopted, and therefore I earnestly appeal to Senator Higgs to withdraw the proposal. If we passed the motion we should be placing ourselves in an equivocal and invidious position. We should be affirming a motion which conveys more than we desire to say - more than I think we are entitled to say - with regard to the reference to the Hague Tribunal. And we should be expressing that opinion in a form which is not quite consonant with the dignity of this Chamber, because its effectiveness is dependent on what another place may do. On the other hand the motion might be equivocal if it were put to the vote and rejected, because it would be liable amongst those who do not pay attention to the history and facts of the matter to misconstruction. From both those points of view, I appeal to Senator Higgs, as the patriot and lover of peace we know him to be, to withdraw the motion. Of the two evils, the most dangerous and the most likely to be the subject of regret afterwards would be that which would ensue from the adoption of the motion. I therefore hope that Senator Higgs will withdraw, but if he does not, I urge that the dignity of the Chamber and also our peaceful aspirations would be best consulted by resting content with the motion unanimously passed the other day.
Senator HIGGS (Queensland). - I should like to say one word in reply. I cannot see my way clear to always fall in with the courteous invitations of the AttorneyGeneral. I attach a great deal of importance to the motion, and I am in very great hopes that a majority of senators will vote in its favour.
– Withdraw the latter part.
– The latter part expresses the desire that the motion, if carried, shall be cabled through the proper authorities to the Governments of Great Britain and Russia, and I have already explained my feelings in regard’ to that matter. I did not wish to enter into a lot of detail, but my suggestion is that if the Senate carries the motion, and it receives the concurrence of the House of Representatives, the Government will carry out the wishes of Parliament and send the resolution to the Imperial Government, with the respectful request that the Russian Government maybe informed of the text.
– That does not rest with us at all.
– Surely, if the Senate and the House of Representatives agree to a motion, the Government would not so far forget its dignity as to fail to carry out the wish of Parliament. On the point raised by the Attorney-General, that we lower ourselves by inviting the House of Representatives to agree with the motion, I would point out that if there be anything in the argument, we are lowering ourselves every week of our lives by asking another place to agree with legislation which we deem to be in the interests of the general public According to the dictum of the Attorney-General, we lose our dignity every time we accept an amendment by the House of Representatives, or ask the House of Representatives to accept an amendment made (by us. The AttorneyGeneral says that we are not in possession of the facts, but there has not been a single contradiction in any of the newspapers since the 31st October of the statement made by Mr. Balfour, that it had been decided to refer this matter to the Hague Tribunal. On the other hand, there has been an almost unanimous note from the press that this decision has been received with favour throughout the United States . and the United Kingdom. According to the terms of the Convention, any signatory power may, on its own initiative, offer to mediate. The Times correspondent says that France has earned the gratitude of. the world in having brought about this determination on the part of the two powers. If, as the AttorneyGeneral, who is such an Australian in sentiment, and has such a high opinion of the Senate, has said, the Parliament of the Australian nation is wholly dependent upon newspaper enterprise for information, what sort of a dignified position does the Federal Government occupy when, oh its own showing, it is kept in the dark about serious matters taking place in other parts of the world, which may involve us with Great Britain in a war? We who contribute a naval subsidy of ^200,000 a 5’ear, and whose squadron may be taken out of Australian waters at any time, know nothing about what is taking place in other parts of .the world.
– What a frightful source of complaint !
– The honorable and learned’ senator” has a poor opinion of what is due to himself and the people of Australia if he thinks that we should not be consulted or informed in matters of this kind.
– We depend upon the Government acting properly.
– I think that the Commonwealth of Australia, through its Government, ought to be informed of the important matters to which the AttorneyGeneral has referred.
– Does the honorable senator think that from time to time we should pass a motion approving of each step which the Imperial Government took?
– No; this is a unique occasion. Probably we shall hear no more of this matter until we learn the decision of the arbitration tribunal on the facts. On the point as to whether we should be kept informed, may I point out that even Japan keeps its consuls informed of what is going on.
– After it is over.
– The honorable and learned senator does not seem to think that it is right that the Government of Australia should be kept informed by the Imperial Government as to what they are doing in matters of high international policy.
– It is impracticable.
– That is not my view of what is due to the Commonwealth Government. As a representative of the people, my conviction is that if the Imperial Government wish to keep in close touch and complete harmony with the Federal Parliament it will have to keep the Federal Government better informed on these matters than appears to be the case from the speech of the Attorney-General. I hope that honorable senators will vote for the motion on its merits. We say nothing about the decision of this tribunal being final. All we say is that we earnestly hope that the result of the inquiry will be “ a just and peaceful settlement, honorable to both parties,” though unfortunately it might be otherwise.
Question put. The Senate divided.
Question so resolved in the negative.
In division ;
– I intended to put them separately.
– Has not the question already been put to the Senate ?
– There is a standing order on the subject.
– I think that Senator Higgs is too late with his request. It ought to have been made before the question was put.
– As the matter has been settled I do not propose to proceed with the following motion standing in my name: -
That, in the opinion of the Senate, the office of General Officer Commanding the Forces of the Commonwealth should be abolished on the expiration of General Sir Edward Hutton’s present appointment.
In Committee: (Consideration resumed from 2nd November, vide page 6381).
Clause 4 - “ Industry “ means business, trade, manufacture, undertaking, calling, service, or employment, on land or water, in which persons are employed for pay, hire, advantage, or reward, excepting only persons engaged in domestic service, and persons engaged in agricultural, viticultural, horticultural, or dairying pursuits. “Lock-out” includes the closing of a place or part of a place of employment, or the total or partial suspension of work by an employer, with a view to compel his employees, or to aid another employer in compelling his employees, to accept any term or condition of employment;
Upon which Senator Givens had moved, by way of amendment -
That the words “ excepting only persons engaged in domestic service, and persons engaged in agricultural, viticultural, horticultural, or dairying pursuits,” lines 5 to be left out.
– A few moments before progress was reported last night I moved this amendment, and, as honorable senators on the Government side appeared to be willing to go to a vote without discussion I sat down without attempting to justify my action. It appeared to me that it was fully justified by the discussion on the previous amendment, but the AttorneyGeneral immediately twitted me with not having given one reason why the amendment should be made.
– I did not intend to twit the honorable senator, but merely to refer to the point as to domestic service.
– The honorable and learned senator’s original statement, when it appears in Hansard, will not be accompanied with that explanation. He has said that it is ridiculous for us to propose to include domestic servants within the operation of the Bill.
– In the original Bill Mr. Kingston made no reference to domestic servants.
– No. If it will make a farce of the Bill to include this class, will it not make an equal farce of the Bill to exclude them ? What great injury .have they inflicted upon the Attorney-General that he should wish to make them outcasts ?
– No; the honorable senator is going to assume that they are outcasts.
– What “have domestic servants done to the honorable and learned senator or to the Government that they should be treated as outcasts? Why should they be the only section in the community to be excluded from the beneficent provisions of this legislation? Domestic service is about the most unpopular service in the Commonwealth. Why is it that domestic service is so unpopular with women? WHy is it that, although the wages are better than in many other callings, young women dislike going into domestic service more than they dislike going into any other service? It is because of the social ostracism. It is because of the invidious distinction which is made against domestic servants.
– Where is the ostracism?
– Let the honorable and learned senator go to a social function, sucH as a hospital ball, in any backblock town in any part of the Commonwealth, and he will find that the wife of the banker, the wife of the commission agent, the wife of the paltry auctioneer, the wife of the police magistrate, and a few other members of the bon ton, will keep to one end of the hall, and1 not allow their skirts to touch those of the domestic servants. And what is true of a back-block town is also true of Melbourne and every other city in the Commonwealth. Did any one ever hear of a servant being invited to a society function at Government House, although in taxation she has to contribute towards its. up-keep as well as anybody else? ‘ When the Attorney-General has called upon a society friend, has not the door been opened to him by a girl who was compelled to wear the cap of servitude lest she might be mistaken for a member of the family ?
– Why, most of the domestic servants regard the cap as an ornament. It is most becoming to them.
– They do not. It is inflicted upon them as a badge of servitude, so that they shall not be mistaken for a member of the family. If there were no domestic servant to perform what are usually spoken of as menial duties, the housewife, even Lady Northcote herself, would be compelled to perform them, and there would be nothing derogatory in her doing so. There is nothing so ladylike or dignified as doing the necessary work that a woman has to do in a house. Yet we find that domestic servants are ostracized because^ they perform menial duties. A woman in a shop, or a woman in any other walk of life, will look down on domestic servants^ as being beneath her. It is time that ,this false, miserable way of looking at things was changed. But it will be accentuated by this Bill, which “.will make an invidious and injurious distinction by enacting that domestic servants are the only class to be deprived of the benefits of the measure. The female in a factory, the female in a shop, even the female behind the bar or in a restaurant, may enjoy every advantage conferred upon the general community by this Bill, but the domestic servant is to be singled out, and is not to enjoy any protection whatever. I maintain that no invidious distinction ought to be made. Domestic servants should be neither included nor excluded. Thev should have the same rights as other individuals. We shall be told that it is ridiculous for nursemaids and parlour-maids to go on strike, and to bring their cases before an Arbitration Court. But why should not the nursemaid, if she endures any hardship, have the same protection as the engineer or the seaman, or the railway man, or any one else ? It isbecause she is in a weaker and more humble position. I resent any. sneer of any kind being cast at domestic servants, and I also resent the idea of singling them out from the rest of the community. The discussion which we had yesterday showed that the desireof the Senate was that we should not make invidious distinctions between one section of the community and another. It was . also shown that the Senate is determined that the Bill shall provide for every possible case that may arise. We were told with regard to agricultural labourers that there was no necessity for providing for them in the Bill, and that their case could be dealt with if it ever arose. Here, I would point out to the Attorney-General that although he said that there had been no organization amongst agricultural labourers, he cannot advance that argument concerning domestic servants. There have been many and varied organizations amongst them. I remember the time when at Charters Towers pretty well every domestic servant was enrolled in a union.
– - I organized that union myself.
– Did the union come to grief?
– I am out of touch with what has gone on at Charters Towers for some years, but I know that when I was there nearly all the domestic servants were enrolled in the union.
– Probably they are married now.
– Then they are in a still closer union. The Attorney-General will, I think, accept my statement that there has beenorganization amongst domestic servants.. Why should their organization be shut out from the beneficent provisions of this Bill? Before I sit down, I wish to ask permission to divide my amendment into two parts, so as to confine attention to the provision with regard to domestic servants. I desire that no invidious distinction shall be made concerning this class of people, because they are engaged in what is termed menial service. There is nothing low about their work. On the contrary, their duties are amongst the highest that any woman can be called upon to perform. By leave, I withdraw my amendment.
Amendment, by leave, withdrawn.
– I now move -
That the words “ excepting only persons engaged in domestic service,” lines 5 and 6, be left out.
SenatorSir JOSIAH SYMON (South Australia - Attorney-General). - I wish to make it quite clear, to begin with, that in the remarks which I made last evening, I had no intention to convey the idea that I was twitting Senator Givens with shortening the discussion. My remarks, as will be found from Hansard, were directed towards appealing to him to consider whether on the whole it was desirable that he should persist in his amendment to strike out these words, so as to leave domestic servants within the scope of the Bill. I am glad that we have had an opportunity to hear more extensive reasons why the words should be omitted.
– I can give other reasons.
– I dare say the honorable senator has many in reserve. The main reason is, I understand, that domestic servants are subject to some kind of social ostracism, and that by including them in this measure, we shall be able to relieve them from that ostracism.
– My main reason is that we should make no invidious distinctions.
– The point upon which my honorable friend was most eloquent was what he called social ostracism. Because there was a hospital ball, and one set of women sat at one end of the hall and the other set at the other end, he considered that one set was being ostracised. I think that my honorable friend will find in all sections of humanity, as long as human nature is what it is - and it is a poor, foolish human nature - that there will be prejudices amongst all sorts and conditions of men. They will be found in other places besides hospital balls, to ‘which domestic servants go, as they have a perfect right to do if they please, and where perhaps the wives of the banker, the storekeeper, and, for all I know, the lawyer go also. I dare say that the female part of the community to a greater extent than men entertain those feelings in regard to holding particular opinions, as to the proprieties, whom they may talk to, and all that kind of rubbish. But I thought that my honorable friend, Senator Givens, was too thoughtful and sensible a man to put forward the fact that these things exist as a reason for including domestic servants under this Bill. My honorable friend became exceedingly emphatic and eloquent about that most becoming cap which sets off the personal appearance - as Senator Playford said, and he is an observant gentleman - of the domestic servants, and which often makes them more attractive - I think he said - than are the daughters of the house. My honorable friend says that domestic servants are not allowed into the drawing-room. Perhaps they do not wish to go there. But, so far as my experience goes - and I say this rather in defence of the domestic servant - in my own house, and in other houses with which I am acquainted, there is not the slightest foundation for any suggestion such as Senator Givens has made concerning masters or mistresses. Of course, there are black sheep in every flock, but domestic servants, as a rule, are not subject to this kind of branding. I think it is- a great pity that observations of that kind should be made. I believe that the vast majority of masters and mistresses are kind and considerate to their maid servants, My own experience is that they make friends of them. I know that that is so in my own household. The servants whom we have had have been friends of us all. They have been friends of my children, to whom they were attached, and who in turn were attached to them. I think it is right to say that, and also to add that, in my opinion, it is a great mistake to suggest that domestic servants are looked down upon, and that the cap which they wear is a badge of .servitude. We know that nurses have a . particular attire associated with their particular avocation, and they like it.
– It is not a badge of servitude in their case..
– It might as well be said that the wig and gown of the barrister is a badge of servitude. I regard a Panama hat as the most comfortable head gear one can wear. Senator Givens may prefer a tall hat. My honorable friend, Senator Playford, prefers a good old felt hat. It is ludicrous to suggest that attire is a badge of servitude. The first branch of Senator Givens’ argument, about which he was most eloquent is that to which I have referred. But would this Bill remove any such grievance? Of course not.
Wie are going to say that the happiness of these domestic servants and the hap- ‘piness of the households in which they are engaged do not require the interference of an arbitration tribunal.
– Why do girls shun domestic service?
– Not because of what my honorable friend suggests, but I am afraid in most cases, because they prefer to go into factories, where they think they have more freedom, and where they are not under the control of a careful and considerate mistress. That is my experience. I deplore that it should be so. It would be much better for girls of tender age if, instead of going into factories, they were taken into kindly households and engaged in domestic service.
– They would make better wives afterwards.
– Of course. What do they learn of domestic economy, of coolong, washing, and all the concerns of household management, in a factory ? Nothing whatever. But we do not . desire to go into that question now. Does my honorable friend Senator Givens really and .seriously say that the inclusion of domestic servants in this Bill is going to remedy any of the things of which he complains? I have grave doubts in the first place as to whether domestic servants can be said to be persons engaged in an industry.
– Why mention them in the Bill at all ?
-.We heard that argument last night, and it is about the most foolish argument that can be used. Of course, I use that expression concerning the argument, and “not in a disagreeable sense. We are engaged in the work of practical legislation. Why should we profess to include a particular class of persons to whom we do not believe that the measure will in any way be applicable?
– Why should we expressly exclude them?
– We are not a debating society. We are a serious body of sober men engaged in practical work. If we ‘do not believe that domestic servants will be within the scope of the provision of the Constitution, why should we stick them in ? Why not make the point clear ?
– Say nothing at all about domestic servants.
– But it would be much better to tell mistresses and maids that this Bill does not touch them, seeing that we cannot go to the households and explain the matter. Why introduce the possibility of discord into households? The amendment would be an interference with family happiness. I do not say that it is likely, but it is conceivable that some person might come round to houses and endeavour to enrol domestic servants in a union. I should not like that to occur in my house, and would not allow a proceeding of the kind if I could help it.
– Why not have domestic servants as well as gardeners and grooms in unions?
– I do not think that gardeners or grooms should be brought within the operation of a Bill of this kind. We have gigantic work to do in a national sense in other directions, and that work is not helped by those little petty attempts to create discord and unhappiness in the household. Why not keep the exemption as it appears in the Bill?
– It makes an invidious distinction.
– I see nothing invidious about it ; in my opinion, it is an honorable distinction. I should be very glad to see lawyers exempted, if honorable senators like.
– Lawyers have a lovely union as it is.
– Lawyers have no union.
– A lawyer who disobeys the rules of the profession in the slightest particular, is kicked out and boycotted afterwards.
– That is not so. I do not, however, want to enter into that vexed question, except to say that it is one or the greatest fallacies and delusions under the sun that the legal profession is a trade union.
– What happens to a man who charges 5s. 3d. instead of 6s. 8d ?
– A lawyer is quite welcome to charge 5s. 3d. - he may charge fifty guineas instead of 6s. 8d. if he likes.
– Suppose, a solicitor pleads as a barrister?
– If he wins we compliment him, and if he loses, we tell him he has made a mess of the matter. I should like to shortly refer tothe history of this measure, in order to show that it is not worth while to strike out the exemption. This clause appeared in the Bill as introduced in the House of Representatives by Mr. Deakin, though it was said by the honorable senator who has just sat down, and also by Senator Guthrie, that the exemption did not appear in the original draft made by Mr. Kingston. So far as I know, however, the Bill was introduced in the form approved by that right honorable gentleman, and. the exemption was still in the Bill when it was taken up by the late Prime Minister, Mr. Watson.
– But Mr. Watson voted against domestic servants being mentioned in the Bill.
– I think Senator Turley will see from the speech of Mr. Watson that he took very much the view that I do now, namely, that though it is within the bounds of possibility, it is in the highest degree improbable that domestic servants can ever come within the operation of this measure. On the 1st June, 1904, when this Bill was before another place, Mr. O’Malley interjected that provision must be made for domestic servants, and thereupon the then Minister of External Affairs, Mr. Hughes, said -
I freely admit that we have forgotten them; but we never proposed, either on the 19th April last, or any day prior to that date, to include them in this measure.
SenatorMcGregor. - Is the AttorneyGeneral quoting Hansard of this session?
– Is that in order?
– I think so, on this Bill.
– The Watson Government raised no objection to a similar amendment.
– The then Minister of External Affairs, speaking for the Government, said that they had never proposed to include domestic servants within the operation of the measure.
– Did the Watson Government propose to exclude domestic servants ?
– Yes; not by direct words, but by retaining this exemption.
– It was not a Bill of the Watson Government.
– Did the late Government oppose the clause as it now reads ?
– No; Mr. McDonald moved that those words should be struck out, but even he admitted that it would be very difficult, if not impossible, to apply the Bill to domestic servants engaged in private families.
– Why mention domestic servants ?
– Why should we legislate for what is admitted to be impossible? It is reducing legislation to a farce; and there is no doubt that we might insert all sorts of provisions simply for the fun of the thing. But we have to send this Bill back to another place with amendments which are the embodiment of our wisdom,. and yet it is proposed to make a provision which it is impossible to bring into operation. Mr. Watson during the debate in another place pointed out - and I agree entirely with him - that cooks and waitresses did not come within the same category as domestic servants, as, indeed, has been decided by the New South Wales Arbitration Court. Then Mr. Watson went on to say that consequently the exemption of domestic servants only affected those engaged in private houses. He went on to say -
As a matter of fact, I’ do not desire to see any large class of the community exempt from the operation of the Bill, always keeping in view the Constitution ; and, for that reason, I am willing to accept the decision of the Committee on the amendment.
– But how did he vote?
– Mr. Watson voted with the minority which supported the amendment proposed by Mr. McDonald, but Mr. Watson was Prime Minister, and for his Government he accepted the decision of the Committee.
– Because the point was not vital.
– Of course ; but Mr. Watson is the leader of the Labour Party.
– That does not bind us here.
– Surely ?
– We do not have onemanonerule in our party ; we have democratic government.
– Not so democratic as my idea of government. However, that is a. large question, the consideration of which may be postponed. Mr. Watson took, as he always does, a fair and sensible view, and admitted, along with Mr. McDonald,, that to include domestic servants would, so far as any practical results are concerned, be an absurdity. Mr. Watson, as head of the Government, accepted the decision of the Committee.
– And so will Senator Givens.
– Much as I admire Senator Givens, he is not the head of the Government, though some day I may have to congratulate him on attaining that position. Are we, as practical men, going to strike out those words in order to include a particular class which everybody admits cannot possibly come within the operation of the Bill? Domestic servants are not contemplated m such legislation - and even if they were I should object ; but it is a measure to deal with industrial disputes which extend beyond the limits of a State, and may become a national menace. Can anybody imagine any row between maids and mistresses becoming ,a national menace in “Australia”?
– Why exempt domestic servants ?
– Because it is ridiculous to include them.
– Not at all.
– Leave domestic servants out and be done with them; the matter is not worth all the talk about it.
– I want to prevent the Senate being placed in a ludicrous position.
– Why are domestic servants exempted ?
Senator Sir JOSIAH SYMON. Because the Government do not desire the Commonwealth Parliament to appear ridiculous. Did not the honorable senator, as a member of the Government, agree to this exemption at one time?
– Did not tha honorable senator join a Government as one of its most conspicuous members?
– I was never consulted about this Bill.
– But the Bill was the policy of that Government.
– The honorable and learned senator knows that 1 am perfectly free now, and that I was never bound by any little arrangement of this sort. The Attorney-General is using an absurd argument.
– But why strike out the exemption r
– Because it is of no good in the Bill.
– Then the honorable senator desires that domestic servants should come within the operation of the Bill?
– I do not believe that domestic servants will ever come within the operation of the Bill, and, therefore, I see no good in mentioning them.
– But why not give the domestic servants a little comfort - why not tell them that they do not come within the operation of the Bill ? The laughter of honorable senators shows that the whole proposal is only worthy of ridicule, and I ask the Senate to reject the amendment.
Senator - DAWSON (Queensland).- I never saw the Attorney-General labouring under so many difficulties as he appears to be this afternoon. I regret to say that the honorable and learned gentleman, in criticising the arguments of Senator Givens, has adopted an attitude which he never before adopted during a debate in this Chamber. From the quotation from Hansard, on this particular question, he claimed (hat Mr. Watson was in favour of the Bill as it now is. and that it naturally followed he would be against the amendment moved by Senator Givens.
– No ; I said that Mr. Watson voted for Mr. McDonald’s amendment.
– The AttorneyGeneral laboured the point, but the only evidence- he brought forward was that because Mr. Watson was then the head of the Government, and accepted the verdict of the Committee, he, therefore, accepted -the provision which now appears in the Bill. That argument was used, notwithstanding the fact that Senator Turley pointed out that. Mr.’ Watson and others of the Labour Party were not an favour of the exemption, and showed their disapproval by voting for Mr. McDonald’s amendment, .in the same way as the leader of the party in this Chamber, Senator McGregor, will be found voting with Senator Givens. It is quite a new doctrine on political life that because the head of a Government accepts the opinion of a Committee when it goes against him on a question that is not considered to be vital, he is, therefore, in favour of the opinion expressed by the majority. If .that reasoning holds good, then I claim that the Attorney-General, by accepting the decision of the Committee last night on my amendment, has recanted, and is now in favour of what was carried in spite of him. The line of reasoning that is good in the case of Mr. Watson ought to be good in the case of the AttorneyGeneral. But there is another matter to which I should like to draw attention. Senator Givens pointed out that some years ago there were domestic servants’ unions in Queensland, and it so happens that I was the organizer of a large and effective servants’ union at Charters Towers. But no unions of the kind, as such,, exist to-day, for the reason that the whole constitution of industrial organizations in Queensland has been altered. At that time the miners, the, engine-drivers, engineers, carpenters, domestic servants, and so forth, were formed into separate unions, but . now all the unions are amalgamated into what is known as the Associated Workers’ Union, which to-day includes quite a large number of domestic servants. In other places’ in Queensland, we have the same state of affairs existing, and wi:h the exception of branches of the Amalgamated Engineers’ and the Amalgamated Carpenters’ Societies of the old country, which are not unions as we understand them to-day, but trade unions and benefit societies combined, it would be difficult to find anywhere in Queensland a separate union representing a particular trade or occupation. The Amalgamated Engineers’ and Carpenters’ Societies are very largely benefit societies. For instance, the Amalgamated Carpenters’ Society has sick and accident funds, and if a member of that organization has his box of tools destroyed, the society has a fund from which he may receive a vote for the purpose of replacing it. Apart from these particular societies, the whole of the labour organizations in Queensland form the Associated Workers’ Union, and they are split up into districts, and affiliated under one executive in what is called the Australian Labour Federation. The Charters Towers Associated Workers’ Union is composed of miners, shop assistants, domestic servants, carpenters, enginedrivers, and persons following all kinds of trades and occupations in the district, and the question arises whether the Associated Workers’ Union of Charters Towers could be registered under this Bill if domestic servants, who are members of the organization, are purposely excluded from the operation of its provisions. That is the difficulty, and it constitutes a strong point in favour of the amendment submitted by Senator Givens. I submit that, if domestic servants are purposely excluded from the operation of this Bill, the Associated Workers’ Union will either be refused registration under the Bill, or can only secure registration by turning all the domestic servants out of their union.
– They can easily form a separate union. It is separate unions, and not amalgamated unions, that are contemplated by the Bill.
– I should like the Attorney-General, who is the legal representative of the Government, and who should give us a legal interpretation of the provisions of this Bill, to answer the question, though I have no objection to receive a legal opinion from Senator Best. The opinion submitted by Senator Best is that, in the circumstances I have described, the domestic servants in the Associated Workers’ Union could form a separate union.
– Why should they, if they do not desire to do so ?
–That would mean that the other members of the Associated Workers’ Union, in order to secure registration under the Bill, would have to turn the domestic servants out of their union.
– Not necessarily ; the domestic servants could have a union of their own.
– I direct the attention of honorable senators to the fact that unionism, like everything else, is developing. The constitution of a trade union to-day is not what it was twenty years ago. “Unionism is progressing and advancing as well as everything else, and the lines along which we are advancing in unionism are lines of amalgamation. Instead of remaining separate bodies, we are becoming one great body of organized unionists. We find it absolutely necessary to do that. I remind honorable senators that the employers are doing precisely the same thing. A man is not asked whether he is the owner of a factory or a foundry, or whether he runs a large store or a drapery establishment, before he can join the Employers’ Federation. The fact that he is an employer of labour and subscribes to the rules and conditions laid down in the constitution of the Employers’ Federation entitles him to become a member of it. The employers are going further. They are not only amalgamating all the employers in one State, but they are going in for an Inter-State Federation, and the one Em ployers’ Federation is to be spread .throughout the Commonwealth. Those are the lines along which .the employers are moving, and they are also the lines along which we are moving in our trade organizations. If an attempt is to be made by refusing to agree to the amendment, to paralyze us, and to prevent us moving in that direction, the sooner those who believe in the new development of trade unionism are up and doing to resist such an attempt the better it will be for their movement, and for the peace of the whole Commonwealth.
– I am sorry .that so much time should be taken up in discussing this question, because it will not matter in which way it is decided. At the same time, I think it should be decided in the way desired by the honorable senator who has moved the amendment. The position is simply that if we leave these words in the Bill we shall be singling out domestic servants for special legislation. There is no necessity for that. The Attorney-General says that the words are in the Bill, and can do no harm, and he -therefore asks why they should be struck out. I put the matter in the other way, and ask why they should be kept in. My reasons for striking them out are as strong, f not stronger, than the_ Attorney-General’s reasons for keeping them in. The only argument which the Attorney-General advances for retaining the words is that they will prevent any doubt on the subject. but the honorable and learned senator believes that whether they are left in, or are taken out, the same results will follow. The honorable and learned senator points out that domestic servants cannot be affected bv this legislation, because there can be no industrial dispute in the ordinary acceptance of’ the term in connexion with domestic service.
– The Arbitration Court cannot consider a dispute between a maid and her mistress as to whether the maid should have one follower or two.
– I need not go into the details with respect to the uniform of domestic servants. In my family we have never insisted upon the girls wearing white caps and strings, but they have done it on their own account. They are proud of their uniform, and believe that it becomes them. They prefer their special uniform in the same way as do the “ lassies “ belonging to the Salvation Army, and hospital nurses.
Whether the Attorney-General is right or wrong in his contention, the matter is one which should be left to the High Court to decide. We should not decide it by specially including words which will have the effect of excluding domestic servants from the operation of the Bill. My own idea is that they will never come under the Bill, but no one can show me that there is the slightest necessity for absolutely excluding them from any benefits which might possibly accrue to them under the Bill. Why should thev be the only persons excluded ? I should like to say that it is simply ridiculous for the Attorney-General to suggest that because I joined the Deakin Ministry after the original Conciliation and Arbitration Bill was introduced, I am bound by every little provision contained in it, though I had not the slightest voice in the framing of it. The honorable and learned senator knows very well that he would not be bound in that way. I exercise my own judgment in the matter, and it is simply a waste of time for the honorable and learned senator to twit me with being inconsistent because I do not vote exactly in line with the Bill as originally introduced by Mr. Deakin. When I have voted in line with the Bill as originally introduced, the Attorney-General blamed me just the same. Whip high or whip low, I cannot please the honorable and learned senator unless I blindly follow him. I advise the Committee as a matter of consistency and common sense to agree to the amendment, and to refuse to make any distinction between domestic servants and other persons in the community.
– As a matter of common sense I very strongly recommend the Committee to avoid the folly of trying to drag domestic servants into this Bill, if they do not desire to turn Australia into one huge lunatic asylum, which proposals of this sort seem to me’ to be highly calculated to do. If I have any knowledge at all of the meaning of arbitration proposals, the object in arbitration is to deal with masses of labour and large employers, and I ask honorable senators how the principle can be introduced in private houses, where in the majority of instances there is but one domestic, and in a few instances perhaps two or three? The domestic servants are resident in the house in ‘which they are engaged, and how can we ‘ have an interState dispute amongst domestic servants?
The proposal is made because of a forgetfulness or an obvious disregard of the existing conditions of family and private life.
– If domestic servants cannot strike, there is no harm in leaving them out of the Bill.
– I do not think that the servant girls of Australia need the protection which the honorable senator speaks about. From ray knowledge of them, they are very well able to take care of themselves, and their number is not so large that there is any danger that they will become a glut in the community. From any point of view’ there is no reason for what I can . only regard as a very idiotic and foolish proposal to include domestic servants in such a provision as this.
– As between the common sense of Senator Pulsford and that of Senator Playford, I think that of the latter stands pre-eminent. It appears to me that Senator Pulsford has not carried his common sense far enough. If it is common sense to specifically exclude domestic servants from this Bill, why should we not in the same way specifically exclude all other persons who will not come under the Bill ?
– Domestic servants are resident in the households in which they are employed.
– Why should we not in the same way exclude lawyers, hospital nurses, grooms, jockeys, professional athletes, and all other persons to whom we know the Bill will not apply? Is it because other sections of the community have votes anc? use them to a greater extent than do domestic servants ? If Senator Pulsford and those who think with him are to be logical, I “have pointed out the conclusion to which they are forced. Honorable senators opposite cannot tell us why domestic servants should be singled out for specific exclusion. As Senator Playford has pointed out, if we do not propose specifically to exclude everybody to whom the Bill will not apply, we should1 not specifically exclude anybody. If this Bill will not affect domestic servants, no harm can be done by striking all mention of them out of the Bill. I confess that I cannot conceive of any dispute in connexion with domestic service that could ever come within the ambit of this Bill, but I do not propose on that account to single out one class of persons- and say - “ Because you are domestic servants, we will brand you in this Bill as being the only persons specifically excluded from its operation.” I trust that without much further debate the Committee will come to a vote on the amendment.
– I feel that we are lowering the dignity of the Senate by even discussing such a preposterous question.
– The honorable senator will lower it still further by speaking.
– Perhaps I may, but I speak as I think. Concretely put, the contention is that there shall be no exception to the general principle of the application of this measure to all industries.
– No invidious distinctions should be made.
– I take it that we are here to do what we deem right in connexion with the welfare of the people as a whole. Just as we should deem it unwise for policemen to form a union, so if in the interests of the Commonwealth we should consider it unwise that domestic servants should be brought under this’ measure, we shall be doing only what is our duty by making them one of the exceptions to the general application of the principle. I do not think that any honorable senator, in his heart, believes that it will be for the good of the Commonwealth to bring the harmony of the domestic home into the strife of politics,’ as it would be brought by the amendment. It appears to me to be absolutely insane to imagine that the Commonwealth would benefit from domestic servants being placed in the same category as those persons who are engaged in ordinary industries. I ask honorable senators to consider the multiplicity of detail which a wife has to deal with. In most cases the wife absolutely controls the situation, and the husband knows very little about the engaging of the’ domestic servants or her troubles in connexion with their work. Imagine the absurdity of a cook or a housemaid submitting to the consideration of a Judge the question whether her credentials ought not to have been satisfactory to a certain lady. What satisfies one woman in these matters will not satisfy another woman. I hope that Senator Givens will recollect that we are here to administer the affairs of the Commonwealth, and that he will refrain from bringing forward proposals which in themselves can have no bearing upon the politics of, at least, this generation.
– If the clause be passed, as proposed to be amended, there will be nothing in the Bill to show whether Parliament contemplated the inclusion of domestic servants. This is not a proposal that we shall specifically include them.
– If they are not excluded they must be included.
– Not necessarily. We cannot include domestic servants if they do not come within the interpretation which will be given to the phrase “ industrial dispute.” If they can by any means be brought within that interpretation, we have no right to specifically exclude them. I believe with Senator Playford, that the inclusion of domestic servants is absurd, but I cannot follow the reasoning of the AttorneyGeneral. In the first place, he said that it is impossible to imagine domestic servants being considered as forming part of an industrial organization, and then he argued that we propose to include them, because we are going to eliminate the mention of them. I have again to vote in a way which might be misunderstood if I did not speak. I wish the members of the Labour Party to understand that when it comes to a question of including or excluding unionists or nonunionists, I shall vote consistently against discrimination, and if in the end the Bill is not what I think it should be, I shall, like Senator Givens, be ready to assist them in throwing it into the waste-paper basket.
Question - That the words proposed to be left out, be left out - put. The Committee divided.
Majority … … … 2
Question so resolved in the affirmative.
Amendment agreed to.
Senator GIVENS (Queensland). - I have an amendment to move which I think will be allowed to pass without discussion, as it is merely consequential upon an amendment which was made yesterday evening in an earlier part of the clause. I move -
That the words “ and persons engaged in agricultural, viticultural, horticultural, or dairying pursuits,” lines 6 and 7, be left out.
Amendment agreed to.
Senator PEARCE (Western Australia). - I move -
That after the word “work” the words “or any alteration of existing conditions of employment” be inserted.
This amendment, which relates to the definition of “ lock-out,” is of a rather technical character. It is based very largely on our experience of the Western Australian Act. After a practical experience we have found that as regards the prosecution of cases the definition of “ lock-out “ has failed. In my opinion, this Bill would fail in the same direction, because, if anything, it is not so stringent as that Act.
It is not necessary for an organization or for any section of an organization to act. If a number of men act in concert or combination, with a view to enforce compliance with their demands on the employers, that is a strike, and comes within the purview of this legislation. But employers may disturb existing conditions by upsetting established usages and customs. Men may be discharged if they object, provided that the employer in so doing does not say that if they will accept the alterations he will allow them to go back to work. If there is in a certain trade an established usage or custom, and the employer says, “ I am going to alter that condition,” and the men say, “ We are not favorable to the alteration,” the employer can discharge the men.
Any person who takes part in, or does, or is concerned in doing any matter or thing in the nature of a lock-out or strike, instigates or aids in any of such acts, suspends or discontinues employment in any industry, shall be guilty of an offence ; and a penalty is provided. The New South Wales definition of a lock-out is as follows : - “ Lock-out “ means the closing of a place of employment, or the suspension of work by an employer, done with a view to compel his employees to accept a term or terms of employment. “ Industrial matters “ in the New South Wales Act, as. under the Western Australian Act, include - any established custom or usage of any industry, either generally or in any’ particular locality.
The case which was heard in Perth on this question, and which- disclosed to the people of Western Australia the weakness of the State Act, was a case in which the Western Australian Supply Company, which is a tailoring company, were employing tailors. There was in existence a log of wages, and there were certain customs and usages of the: -trade which” were generally recognised. In fact, they had been drawn up before the Arbitration Act was passed, at a conference of employers and employes. One of those conditions or usages was that only trousers and vests were to be made by men, and coats by women. The company advertised for and obtained the services of a boy to assist them,. and they afterwards employed him in making coats. Another usage of the trade was that boys were only to be employed in assisting journeymen tailors. This boy was engaged to make the whole garment. The men sent a deputation to the employers, and pointed out the breach of the established usage. The employers refused to allow any interference by the men as to how the establishment should be run. The men then stated that they would take the case to the Arbitration Court. On the following Saturday, being, pay-day. the employing company discharged all the men who had been members of the deputation, and who had signed the protest.
January 16th, 1903. It was heard before Mr. A. G. Walter, the police magistrate. For the defence it was argued - and this is the crux- of the whole point - that there must be a dispute between employes and employers at the time of the lock-out ; secondly, that the employer must exclude his workmen from his works; and thirdly, that, he must do this for the purpose of compelling his employes to accept certain specified terms. The verdict of the Court was for the plaintiff registrar, who had brought the action at the instigation of the union, and the employing company was fined j£io, and £5 costs. In the We-st Australian of 30th March, 1903, there is reported the appeal from the police magistrate’s decision, to the Supreme Court. The appeal was heard before Mr. Justice McMillan, who, in delivering his judgment, said -
It is contended, however., on behalf of the respondent (Registrar’ of Arbitration Act) that th? Act by prohibiting anything in the nature of a lock-out is intended to prevent, and does prevent, any employer from dismissing any of his employees after there has been a dispute. If there was any evidence which showed that their dismissal was not, in fact, intended to be absolute, but that there was the intention on the part of the employer to take his men back if they would accept his terms, it would, I think, be in the nature of a Lock-out within the meaning of the Act. If, on the other hand, the facts s’now that the dismissal was absolute, then, whatever the intention of the Legislature may have been, there is, in. my opinion, nothing in the Act to prevent the applicant (the employer company) taking this course. He therefore upheld the appeal.
If there was any evidence to show that their dismissal was not in fact intended to be absolute, but that there .was the intention on the part of the employer to take his men back if they would accept his terms, it would, I think, be in the nature of a lock-out.
Whatever the intention of the Legislature may have been, there is, in my opinion, nothing in the Act to prevent the applicant taking this course.
What did the employer discharge the men for ? Was it not proved up to the hilt that he discharged them because they protested against an alteration in the existing custom and usage?
If an employer wishes to alter existing conditions, and his employes agree, the amendment can never apply. It is only when an employer discharges employes for the purpose of coercing them, that the provision applies.
Senator Pearce. - Protested.
Senator Pearce. - No.
Is it not absurd,? “
A strike includes a total or partial cessation of work or any alteration of existing conditions of employment by employees acting in combination ‘as a means’ of enforcing compliance with demands made by them or other employees on employers.
– I should be very pleased if 1 could feel that the explanation of the Attorney -General covers the position, which has been put by Senator Pearce. This definition of a lock-out does not by any means touch the evil to which he has referred. I have in my mind some cases which I feel quite sure it would never touch.
– What does the honorable senator consider a lock-out is?
– I consider that a lock-out is really an attempt on the part of an employer to alter existing conditions by any means which he can employ.
– That is not a lock-out.
– I hold that if this Bill be passed, an alteration in existing conditions could only be obtained in one of two ways, either by mutual agreement, or by an appeal to the Court. I have had considerable experience in these matters. The fight has always been against the introduction of new conditions which affected the workmen equally as much as would a straight-out intimation that their wages would be reduced. Suppose, for instance, that a man were hewing a tree with the foot of his axe, and that his employer told him that he must use the heel.
– No sensible man would do that.
– I only wish to point out that employers do alter the conditions so as to affect the men, just as that axe-man would be affected by an insane order of that kind. I do not think that there is an industry in which difficulties are more prevalent and disputes more frequent than the mining industry. I believe that in the majority of cases the dispute can be traced to the “ nipping””” policy of altering the conditions of labour in order to get the work done at the cheapest possible rate. Time and again it has happened that the employer has altered the conditions of work after an award has been arrived at, or an agreement . has been come to to produce a certain mineral at so much per ton. It has been produced under an acknowledged system,’ but the moment an award has been arranged for, or an agreement come to, the employer or his manager have begun to look around to find out how he could “ nip “ here and there. The method by which the ton of mineral has been produced has been altered.
– Might that not have been owing to the competition as regards the price of the mineral?
– Not necessarily, because the price of the mineral might not have been ‘affected,_ but the desire to obtain the largest amount of profit has “always been paramount. This is not a fairy tale, but a statement of fact. This “nipping “ process has created endless friction. It has brought about strikes and general disquietude. I think that the amendment might be accepted by any man, no matter whether he is an employer or an employe. There are many technicalities in connexion with the working of a business which cannor be provided for in detail in a measure, and which are liable at any time to be applied. I cannot understand how any honorable senator can refuse to accept- ‘ the amendment, seeing that its object is merely to maintain the existing conditions, so far as wages are concerned. No man with any common-sense would attempt to oppose the introduction of machinery. I hope that the day will soon come when we shall have machines to do everything, and a man will have nothing to do except to sit and watch the production of his livelihood. What we wish to guard against is an alteration of conditions except by mutual arrangement, and if an- attempt in that direction were to fail, this provision would operate to protect the workmen. Within the history of the Conciliation and Arbitration Act in Western Australia employers have so altered the conditions of work as practically to drive employes out of employment. In one instance, it was. only because we happened to copy from the notice board upon which the employer used to put his notices an intimation that conditions were to be altered, that we were saved from being placed in gaol as strikers. Our presence of mind in copying the notice was the only thing that saved us. The measure which we pass should apply to both sides. If men go out on strike in contravention of the law, they should be punished, and when the employer uses means to coerce his hands into accepting unfair conditions he should be amenable to the law. I shall support Senator Pearce’s amendment. ‘ ‘
– I was very much impressed by the points put so forcibly by the Attorney-General. Personally I felt very much like the-;poor unfortunate Indians in former days, who saw the Juggernaut car approaching. But while the Attorney-General . convinced me that my amendment is not a good one, - he did not convince me that this definition is satisfactory. I, therefore, ask leave to withdraw my amendment, with the view of moving another.
Amendment, by leave, withdrawn.
– I move-
That after the word “ work “ the words “ or the discharging of any of his employees “ be inserted.
The case cited by the Attorney-General was the most happy one that could have been given from my point of view. The honorable andlearned senator said that if an employer ordered his men to come to work at 6.30 in the morning, instead of at 7, and the employes said theywould not agree, the employer could discharge them, and that would not be a lock-out. Take the case a little further. Suppose the men had been working eight hours a day, and the employer said, “ In future you must work nine hours.” Suppose the employes said, “ We will not,” and the employer discharged them. Logically, that would not be a lock-out. either.
– That would be against the law.
– There wouldbe no breach of any law. The boot has been put on the employer’s foot, and it did not fit. Let us put it on the foot of the employes. Suppose the employes said to the employer, “ We have been coming to work at your factory at 6.30 a.m. ; in future we intend to come at 7.” Suppose the employer would not allow them to do so, and six of the men said, “ We will not come to work at all.” That would be a strike.
– They have a right to do it.
– But under this Bill they would be penalized for so doing.
– If the men give a fortnight’s notice, they should be able to change the conditions.
– If they give fifty years’ notice, it is a strike. When this Bill becomes an Act of Parliament it will be assumed that the conditions then existing are peaceful conditions. There fare two parties who may alter the conditions, and either party in altering them would commit a breach of the law. If the employer says, “ I am going to alter the conditions of employment,” and the men do not agree to the alteration, and the employer discharges the men, that should be a lock-out. If. on the other hand, the employes say, “We are going to alter the conditions, and shall refuse to work unless you agree”; that should be a strike. But while the definition of a strike makes. ample provision to penalize men who act in combination for the purpose of altering the terms and conditions of their employment, it does not operate in the same way against the employer. In the Western Australian case, the employer discharged a number of workmen, but did not close his place of business. Therefore, the Act did not catch him.
– He had a perfect right to do it; why not?
– Will the honorable and learned senator, who is the father of this Bill in the Senate, say that.the employer had a right to alter existing conditions, and to discharge men or not accepting them ?
– I say that he had a right to discharge men, and they had a right to leave if they were not satisfied.
– Certainly; but if he discharged men in order to compel them to accept new terms and conditions, it was virtually a lock-out. It will be for the Court to decide in every case whether there has been a lock-out. If employes say “We have been discharged because we would not accept alterations,” they will have to prove that to the Court. It does not prevent an employer from discharging men. He can. discharge them for any legitimate reason. But he must not discharge them in order to compel them to accept new conditions and terms of employment. I have to thank the Attorney-General for showing me the weakness of my previous amendment, as I am desirous of inserting words that will meet the case. I am satisfied that the clause, as it stands, does not meet the case and the Attorney-General has failed to convince me that it does. His arguments show that my new amendment will attain what is desired.
– If we consider the objects of this Bill, we shall have little difficulty in making up our minds to accept Senator Pearce’s amendment. We are all agreed that the Bill is intended to prevent the’ hardships which occur in consequence of strikes and locks-out. Any one who is acquainted with industries must be aware that there are special conditions and usages in every rade. Senator Pearce has instanced one case that hascome before the Court in Western Australia. A hundred cases might be instanced.Take the coalmining industry. There are many usages and conditionsin that trade. I can instance several cases where customs have been varied, in order to make better conditions for the ‘ mineowners. In the Newcastle district of New South Wales a custom prevailed which was perfectly idiotic, and was admitted to be so by many mine-managers of the district. Some mine-managers who did not wish to be harsh allowed an alteration to take place. But a manager who wishes to retain the whip hand, and screw out of the men some advantage for himself, will work a system in defiance of all common-sense ideas. Where a system was altered by mutual consent, there would be no power, nor any desire, to interfere; but an alteration made under such circumstances as have been outlined by Senator Pearce, ought to be regarded as a breach of the provisions of the Bill. No alteration of existing conditions, unless by mutual consent, should be permitted without an appeal to the Arbitration Court; that is the only possible way in which to effectively settle disputes of this nature. If we place it in the hands of either employer or employ^ to impose such conditions as may defeat the objects of this Bill, our work will have been to a great extent in vain. We have seen how, in Western Australia, there has arisen the very state of affairs which this legislation is intended to avoid ; and we ought to benefit by experience. It is difficult to discuss these matters without having before us a concrete . case, with . the whole Circumstances of which we are familiar. And, again, I suppose there are only two ex-coal miners in this Chamber who could appreciate’ the technical terms which appear to be necessary to a thorough understanding of situations which may arise; but I have endeavoured to show in plain language why we should accept the proposal of Senator Pearce, which I am sure will result harmfully to neither employer- nor employe
Senator PEARCE (Western Australia). - The Attorney-General has said that the sections of the Western Australian Act are adequate to carry out the intention of the law. I desire to draw the honorable and learned senator’s attention to the fact that in the opinion of the Western Australian law authorities they are not adequate. I have here a report of the proceedings under the Industrial ‘ and Conciliation Act for 1.902, issued by the Registrar of Friendly Societies, who is the Registrar under the
Act. The report is submitted to the Go-‘ vernment of- Western Australia, and in it the Registrar makes a number of recommendations for the amendment of the Act. Amongst other recommendations he advises that it is necessary to amend the definition of “ strike “ and “ lock-out.” He says-
In the preceding report reference was made to the absence of any definition of the terms “ strike “ and “ lock-out,” and the advisability of the adoption of a definition similar to that of the New South Wales Act. In a recent case before the Full Court (Buchanan and others v. Registrar of Friendly Societies) - that is the case to which I have referred -
His Honour Mr. Justice McMillan made the following remark - “ A strike may be denned as a refusal by workers to continue to work for their employer unless he will give them more wages or better conditions of labour. A lock-out is the converse of a strike. It is the refusal by an employer to allow his workmen to work unless they accept his rate of wages or the conditions of labour which he imposes. In neither case, is the employment finally determined. The intention of the workmen in the one case, and of the employer in the other, being that the employment shall be continued if a satisfactory settlement of the matter in dispute can be arrived at. . . . Before the men could be convicted of the offence charged there must have been a finding of facts to that effect (that they ceased to work, not with the honest intention of leaving their employment, but simply in order to bring pressure on the employer).”
There the Registrar is calling attention to the necessity for an amendment of the de’finition of “lock-out.”
– What amendment does he suggest ? Not that which the honorable senator has proposed?
– It is not for him to suggest the form of the amendment. He is not the legal adviser of the’ Government, but the official charged with the administration of the Act. It will be seen that < he quotes the very case- 1 have mentioned, and the remarks of Mr. Justice McMillan –as showing the necessity for a more stringent definition of the term “lock-out.” The de,finition used in the New South Wales.. Act. is almost the same as that used in the Bill,, but in the New South Wales Act the., attorns or usages of an industry ..are; included as industrial matters. Breaches of the cus-toms or usages of an industry may, under that Act, form an industrial matter -which may be brought before the Arbitration Court. That is not provided for in this Bill, and it is for that reason I ask honorable senators to amend the definition of the term “ lock-out.”
– I desire to support the amendment.
I have a very intimate knowledge of the case which Senator Pearce has quoted as showing the necessity for this amendment. The honorable senator has stated the case fairly except that it might be added that, under the Western Australian Act, before going to the Court, it is necessary to prove what it known as a “ dispute.” In the case mentioned, the West Australian Supply Company had what is technically known as a “ dispute “ with its hands. The hands, through their representatives, objected to a boy of a certain age being put on to make coats, and the manager of the company said he had no intention of altering that state of affairs. The men said “ We are not permitted to strike under the Act; but at our next meeting, we will bring the matter before the union, and have the resolutions required by the Act passed, in order that we may take the matter to the Court.” I may say that I carried on the negotiations on behalf of the men. The employer did not believe, that the men would go so far, but when he saw from notices in the newspapers’ that the men intended to pass the necessary resolutions at a meeting of their union, and would go to Court for the settlement of the dispute, he discharged them. I point out that the men did not strike. They simply told the manager that they did not approve of his intention to employ this boy on coats, and they were prepared to submit the matter to the Arbitration Court. He saw that this was going to be done, and on the Saturday he said to all the union men, “You may all go, and I shall not again employ union men in my establishment.” Seeing that this measure specially recognises unions, and does not deal with individuals, I would ask the AttorneyGeneral whether such a statement on the part of the employer is not a further indication that’ the action he took was in the nature of a lock-out. The employer in this case filled the places of the men who were discharged, and1 we proceeded under the Act to sue him in the Police Court for action in the nature of a lock-out. He was fined ;£io, and costs, by the magistrate, who, in my opinion, made out an excellent case against him in the course of his summing up. The matter came before Mr. Justice McMillan on appeal. He had just arrived from- England, and I do not think that he understood the question. However, the real question at issue was as to what was a lock-out, and Mr. Justice McMillan’s decision was against the men. In my opinion, something should be done to prevent an em- plover doing what was done in this case-. It might be all very well if, in such a case, the men were entitled1 to leave their work directly the employer insisted upon allowing this boy to continue making coats. In the timber mill case, two or three men left their employment after having a dispute with the foreman, and when brought before the Court, they were fined for doing something in the nature of a strike. It was a time of unrest, and one man named Wilson, who “is now a member of the State Parliament of Western Australia, advised the men not tobe in a hurry, and not to move too quickly. He said to them - “ I will tell you what you may do. You might have a mass meeting of all the mill hands on Sunday to discuss the question, and in the meantime take a holiday to-morrow.” That holiday recommendation cost Mr. Wilson ^25, and costs, because it was held that he had incited the men to do something in the nature of a strike. In view of the procedure in these two cases, will any honorable senator say that under the Western Australian Act, the men are not tied down in a way which does not apply to their employers? I believe that we should do everything we can to prevent men from ceasing work, and also to prevent employers from locking out their hands. Senator Gray has said that what we desire is that men should be allowed to interfere with the running of their employer’s business; and, in fact, to decide whether or not he shall introduce new machinery. We do not care whether an employer introduces new machinery or riot, but if he does introduce a new machine, we say that the men employed on it will have a right to say that they will work it for a certain wage, and a certain number of hours per day, according to an award of the Court. Men, for instance, may say to ant employer, who has introduced a new machine, “ We are willing to work on this machine for 8s. a day for a day of eight hours.”
– Is a master to take counsel with his men before he puts in newmachinery ?
– Suppose the employer says “ No; you must work at this machine for 7s. a day of nine hours.”” The men say, “ Very well, we will submit the matter in dispute to the ArbitrationCourt.” There can, in such a case, be no cessation of work. The men must goon with’ the work even at 7 s. a day, and for nine hours a day - though, of course, it must not be forgotten that the Court has power to make its award retrospective. The men are not entitled to strike. Applying the illustration to the case of the West Australian Supply Company, Mr. Justice McMillan’s decision was that it was perfectly fair for the employer to say that- he would not employ the men discharged under any circumstances, though they might be prepared to continue work for 7s. a day and for nine hours a day, and he would employ other men in their place. We have no desire whatever to interfere with an employer, and to say how he shall conduct his business, and what machinery he shall employ.
– Then for what do honorable senators require this amendment?
– We desire that when any dispute occurs the same provision shall Inapplicable to employers as to employes. We desire that the employers shall have no more right to harass men by dismissing them than the men shall have to harass their employers by leaving their employment without sufficient notice, and for insufficient reasons.
– I am quite certain that Senator Pearce will agree with me in the elementary contention that whatever applies to a lock-out should apply with equal force to a strike, so far as we can make an exact parallel between them. I think that the Attorney-General has quite satisfied the honorable senator that the amendment he originally proposed would not produce the effect he desires. I? has been pointed out that that amendment would not do away with the necessity for supplying the requisite evidence, made necessary by the last words of the definition, to prove that the closing of premises or any part of premises has been done with a view to compel employes to accept other terms andi conditions. The Attorney-General’s arguments on the original amendment, in my opinion, apply with equal force to the present amendment. The same difficulty will remain under this amendment. Whether it is a question of discharging an employe or of the alteration of conditions, we shall still be confronted with the necessity of producing evidence that the alteration of conditions or the discharge of the employ^ has been effected with a view to exercise some compulsion. To that extent the new amendment is obviously open to criticism. I think that there are other objections to it. Senator Pearce now pro poses that if an employer discharges any of his employes - and that .means any one of his employes-
– With a view to compel.
– Of course, with a view to compel his employes to accept any term or condition. Any amendment which may be moved for this purpose will, of course, be qualified by the succeeding words of the clause. I point out that “Senator Pearce desires that we should insert an amendment to the effect that if an employer discharges any of his employes with this view a lock-out is produced.
– As a matter of fact, to that extent is it not a lock-out ?
– We will assume that an employer discharges one of his employes. It will be agreed that one of the practical results will be an appeal to the Court by somebody. Are we going so far in this Bill in striving to obtain absolute justice and fair treatment for both parties, as to create a dispute on which there may be an appeal to the Court because an employer exercises his undoubted right to discharge one of h’is workmen ?
– If the honorable senator’s object is to be attained-
– He could be brought into Court.
– I should be sorry if this Bill, of which I very largely approve, were so fruitful in disputes. If a single employe were discharged there would necessarily follow, in order to produce a lock-out, an appeal to some Court. We all wish to make the conditions applying to strikes and lock-outs as nearly equal as possible. If the honorable senator will look at the definition of a strike he will find that it includes -
The total or partial cessation of work bv employees acting in combination -
Surely he does not propose to alter the definition so as to make it include the case of cessation of work by one employed
– Or by two?
– Nor by two, if they are not acting in combination.
– They need not necessarily act in combination.
– If there were two acting in combination, it would be a strike.
– Surely, the honorable senator does not propose to bring about a strike if one employ^ ceased to work ? If he. is going to say that the act of an employer in discharging one of his men shall be a lock-out, to be consistent, he must say that if one employe ceased partially, or wholly, to work, it shall be a strike. I believe he will agree with me, that, in order to cany out his view, he would have to amend the definition so as to read - “ Lock-out “ includes the closing of a place or part of a place of employment, or the total or partial suspension of work by an employer, with 11 view to compel such employee -
Surely he ought to substitute “ such employe^’ for “ his employes.”
– That is what I do not wish to do. But to carry out the honorable and learned senator’s argument, it would be necessary.
– If an employer were to discharge one employ6, for reasons which might intrinsically have nothing to do with a lock-out, or a strike, or a desire to cause a lock-out, or produce a strike, would the honorable senator compel all the employes in that industry to be the victims of a lock-out?
– No. . .
– That is what would necessarily follow if this provision were applied to one employed
– Does not the honorable and learned senator see that the act of discharging one employe is taken for the purpose of compelling all the employes to accept certain new terms or conditions of employment?
– That is the interjection which I wished the honorable senator to make. Can he conceive it possible that if an employer of :roo men wished to get them to bring about a lockout, he would never use such means as that of discharging one man?
– He does not wish to bring about a lock-out, but an alteration of the terms of employment.
– Is he going to bring that result about by discharging one employ^ ?
– In the Western Australian case the employer did.
– The honorable senator must remember that the definition is governed by the provision, that, the action has to be taken with a view to compel, not the man who was discharged, but all his employes to accept other terms or conditions.
– Not necessarily.
– I cannot conceive it possible that an employer would be such a lunatic as to take that course. I would appeal to the honorable senator to accept the statement of the AttorneyGeneral. I do not believe that he will lose anything by not inserting the words. If it could be proved that any act had been taken with a view to compel the employers to accept other terms or conditions there would be a lock-out, and if that evidence were forthcoming, the amendment would be quite unnecessary.
Senator PEARCE (Western Australia). - Senator Clemons has unintentionally put a case similar to the one which happened in the tailoring trade in Western Australia. The employe’s picked out some men to go with a protest to the employer, and they were discharged in order to compel the others to accept an alteration of the terms of employment.
– The Judge found the contrary.
– The Judge was governed by the fact that the employer did not tell the men that if they did not come back they would be locked out. I am well acquainted with the facts, because I happened to be there, and I subscribed some money to prosecute the case.
– Does not the honorable senator recognise that hard cases make bad law ?
– There -was sufficient in this case to induce the Registrar of the Arbitration Court to suggest to the Government of the day; that the Act should be amended; certainly, not in the exact terms which I propose, but on the lines, of the provision in the New South Wales Act, which like the Western Australian Act provides that an industrial matter is -
Any established custom or usage of any industry either generally or in the particular locality.
– That does not touch the question.
– In Western Australia the trouble arose because the employer attempted to upset an established custom or usage. That case is met, to some extent, by the words “ term or condition of employment.” Where it could be proved that an employer had discharged some of his men for the purpose of altering the term- of employment, it should be- regarded as a lockout.
– But the honorable senator does not say “some of his men “ in the amendment.
– No matter whether the employer discharged one man or roo men, the question would be why did he so act? It would not be for the purpose of altering his conditions of employment, but for the purpose of altering an established custom or usage.
– Surely there might be other reasons.
– If there were other reasons, the employer could give them, and no Court would ever convict him. Unfortunately in these matters it generally falls to a few workmen to speak for their comrades. If two or three men -were locked out the conditions or terms of employment would be successfully altered.
– Could not the men who were left in employment appeal to the Court to settle the dispute ?
– That is all very well, but how about the men locked out? Are they to remain idle for months until the case can be heard? It does not necessarily follow that this would arise out of an award. There might be a lock-out without an award having been given in the industry.
– If there has been no award, why not allow every employer or employe” to alter conditions?’
– That is what the Bill does not propose to do. Of course, it could be done by mutual agreement.
– They must go to the Court ?
– This alteration of the definition would not prevent an appeal to the Court. But it would prevent an individual from doing that which it is provided the Court shall do.
– There cannot be a lock-out until there is an award.
– In the case of the tailoring trade I quoted there had not been an award.
– The honorable senator has not answered the contention of Senator Clemons, that if the dismissal of one man is to constitute a lock-out, and the Bill is to be equitable, the resignation of one man ought to constitute a strike.
– It -would be immaterial whether the employer locked out one man or 100 men, because his motive in tak ing that step would be to compel his employes to accept his terms or conditions of employment.
– One man might throw up his job in order to intimidate the employer.
– If he did, that would not be a lock-out: I now come to the conditions which constitute a strike. Here is the position - that the sacking of one man is done for the purpose of intimidating all the employes. What is that but altering the terms of employment? But one man who refuses to work does not alter the terms of employment, because another man can take the work which he has refused to do. Here is the difference between the cases. If there is more than one man who refuses to work, and they .act in combination, they are on strike; but if a dozen employers act together and discharge men in order to intimidate others, they commit no offence, and there is no lock-out. I trust that the Committee - will make the alteration, because the Bill as it stands is not adequate.
– I wish to understand Senator Pearce’s proposal thoroughly. Suppose a manufacturer wishes to adopt a patent piece of machinery which involves a considerable amount of expense in adapting his mills to new conditions. Naturally he will be silent as to his reasons. Suppose that the new machinery involves that the men shall work under new conditions, and that some of them decline to do so. Suppose the employer says, “ If you will not accept the new conditions, I shall get other men to take your places.” What position will the employer be in? Will the men be able to take the case to the Arbitration Court? I take it that the employer should be the judge of the reasons for changing the conditions of employment in his factory, and the workmen should he the judges of whether those conditions are an improvement upon the conditions under which they have been working. But I assume that, if two men distinctly said that they would not work under the new conditions, they could go to the Court and absolutely compel the employer to engage them even before he had an opportunity of bringing his new machinery into play. I hope that Senator Pearce will consider the question of whether the advantages that will be secured by his proposal will not be counteracted by an injury to manufacturers who desire to introduce new methods and new machinery. Our manufacturers should be encouraged to develop their industries with a view to export their products; They should be encouraged to discount the future by introducing every improvement. I do not know whether honorable senators are aware that in the cotton trade in Lancashire it is said that a mill is old after it has been working for five years, so important is it to adopt every improvement. In fact, improvement is the very life of industry nowadays. It is absolutely essential for a manufacturer to take advantage of every invention, and it is equally necessary for him to keep the knowledge of what he intends to do within his own breast. To advertise his improvements publicly, by asking his employes before he purchases new machinery whether the new conditions will meet with their approval is a thing that no business man could think of for a moment. I confess that I am rather in a muddle with regard to the amendment. I cannot see daylight through it. I can see daylight through the proposal in the Bill, but I do not know exactly what Senator Pearce’s amendment means.
– I wish to draw Senator Pearce’s attention to the fact that if an alteration is made in this clause in the direction desired, it will disturb the balance of the Bill with respect to the definition of a strike and the definition of a lock-out. It disturbs the equilibrium. Secondly, although Senator Pearce does not intend to do so, his amendment makes it possible for a malicious employe who has been discharged for any conceivable reason to harass the employer by attempting to penalize him by prosecuting him. Whether he fails or not is a matter that may be of little moment to the employe. If he succeeds, so much the better for him. But any single individual who is of a malicious temperament can vent his revenge upon his employer by prosecuting him. Even if he failed, he would penalize the employer to the extent of putting him to the expense of defending himself. I do not think that the amendment carries out exactly what Senator Pearce intends. I object to it because of its individual nature. It would carry out the object aimed at better if it read “ the partial suspension of work, or the discharge of employed.” Senator Pearce has mentioned that reforms are frequently brought about by the activity of three or four workmen, who possibly are made to suffer for their action, and he instanced several cases in which that had occurred. An employer may discharge an individual and may say that he has no ulterior reason.
But if the employer discharged three or four of the men who were most active in a particular direction, that would obviously be an act committed for the purpose ofcompulsion. An instance has been quoted by Senator Pearce where a man was discharged for the purpose of punishing others.
– Ten men were discharged.
– But Senator Pearce goes very much farther, and says that if a single individual is discharged the employer should be liable.
– Yes, if he discharges the man with a view to coerce others.
– The point I am making is that the amendment, as it stands, places it in the hands of any malicious individual to harass an employer.
– Can an individual bring a case before the Court?
– In the case of a lockout the employer is liable to a penalty, and consequently the action of an individual would make it possible for that individual to punish the employer, although he might be actuated by malicious and revengeful motives in attempting to do so.
– Look at clause 9, which says that no proceeding for a contravention of the lock-out clause shall be taken without the leave of the President or Registrar; how could any malicious individual take action?
– If an employer discharged a number of individuals who had been most active in a particular direction, there would be prima facie grounds for concluding that he had an ulterior object in discharging them. I do not believe in the amendment at all, but it would be less objectionable if made to read “or the discharge of employes by an employer with a view to compel - . “
Senator DE LARGIE (Western Australia). - With regard to the argument that the amendment would disturb the equilibrium of the Bill, we should surely be guided by experience. If the definition, as shown by experience elsewhere, is not sufficient, we should amend it. If existing conditions in a trade can be disturbed, and if the disturbance of those conditions means the lock-out of an individual, and that lockout can afterwards be extended to every employe in an industry, it has just the same result as if there were a general lock-out in the full sense of the term. We ought to include in this measure, in the light of experience that we have had elsewhere, definitions that are sufficient. Our object is to prevent strikes and lock-outs. The notorious Western Australian case shows that the present definition is not sufficient. In the timber districts, a number of men took a holiday because they felt that the award of the Arbitration Court had not been properly interpreted by the employers ; and this case should appeal to honorable senators opposite, who seem to think that this is a Bill which works all in favour of the employes. The result of the award in the timber case was a substantial reduction of wages, amounting to as much as 3s. 6d. per day to some of the men. The desire was to have the matter submitted again to the President of the Arbitration Court, in order to make clear the exact meaning of the award ; and because the men took a holidayto consider the matter, a number of them were fined . £20 each. When we have a law which operates so harshly on the workmen, surely some restriction should be placed on the employer. In the tailors’ case, the employer escaped simply because he was cunning enough to keep his mouth shut; and those two cases ought to be a guide to us.
- Senator Pearce contends that the definition is insufficient, and proposes to enlarge it ; and he bases his proposal on the case in the tailoring trade in Western Australia. In that case, the employer, some ten days or more after the complaint of the workmen, decided to discharge his men, and to engage others, and continue his business. According to the evidence, the employer did not do anything in the nature of a lock-out, but preferred the course he took to having a dispute. The employer was prosecuted under the Western Australian Act, which imposes a penalty not exceeding£50 for anything in the nature of a strike or a lock-out, and the magistrate, conscientiously, no doubt, came to the conclusion that the offence had been committed.
– Only part of the employes were discharged.
– The men who had protested or complained were discharged, and the magistrate came to the conclusion that that was done with a view to coerce them into assenting to the terms proposed by the employer. The case went on appeal before a learned Judge of the Supreme Court, who, on a review of the whole circumstances, came to the con clusion that there was no evidence whatever to support the essential ingredient of a lock-out, namely, that what had been done was to coerce the employes. The learned Judge pointed out that he was embarrassed because there was no definition of “ lockout “ in the Western Australian Act, and, the matter being indeterminate, he had to do the best he could. He said he could not regard what had been done as a lock-out, unless there was evidence that the employer put up his shutters and intended to take the men back - that his intention was to coerce them into coming back on altered conditions. That being the learned Judge’s opinion, he upheld the appeal, and, in fact, dismissed the information. When a case is taken into a police, or any other Court, care must always be taken to have sufficient evidence to prove the offence.
– It was proved that the men were discharged.
– The essence of the case was not the discharge of the men, because every employer has a right to discharge his employes.
– It was the faultiness of the Act.
– It was not the. faultiness of the Act.
– -The Act was defective if there was no definition of “ lockout.”
– It was not the defect in the Act, but the defect in the evidence which led to what is regarded as a miscarriage of justice. I am not saying whether it was a good thing or a bad thing,that the employer should have been acquitted - that has nothing to do with the matter. The remedy, as we all know is that, when one is unsuccessful on appeal in regard to a matter of fact we ought to take care that the next time we have sufficient evidence to establish our case.
– What is the interpretation which the Attorney -General places on the Judge’s remarksabout the intention of the Legislature?
– Judges resist any argument on that ground ; but counsel always try to get the Bench to take into account what the Legislature intended, quite irrespective of the language used in the enactment. We all know that we can only judge what Parliament means by what Parliament says; but, as is usual, counsel in the Western Australian case urged upon the Judge the intention of the Legislature. To that, .however, the Judge replied that he could not take .into account what .the Legislature intended, but must be guided by what was contained in the Act. Under the circumstances, .Senator Pearce, quite rightly from his point of view, regards the decision in that case as a miscarriage of justice. My remedy is better evidence, whereas Senator Pearce’s remedy is an additional definition. This case is. referred to in an exceedingly interesting report by the Registrar of the Western Australian Arbitration Court, who suggested1 the advisability of the adoption of a definition in the Western Australian Act. And what definition did the Registrar recommend? He recommended a definition similar to that contained in the New South Wales Act, and the New South Wales definition is an inferior anticipation of the definition in the Bill before us. The New South Wales definition is as follows : - “ Lock-out “ means the closing of a place of employment, or the suspension of work by an employer, done with a view to compel his employees, or to aid another employer in compelling his employees, to accept a term or terms of employment.
Mr. Kingston who, I presume, drafted the Bill, enlarged and improved that definition, and made it so complete that I think the amendment would only prove to be a blemish. The definition in the Bill is - “Lock-out” includes the closing of a place or part of a place of employment, or the total or partial suspension of work by an employer, with a view to compel his employees, or to aid another employer in compelling. his employees, to accept any term or condition, of employment.
I think that is a first-class definition ; it is exhaustive, and one which we ought not to tinker with or alter.
– There are two vital matters included in “ industrial matters “ in the Western Australian and New South Wales Acts, which are not included in the -Bill.
– That does not touch the present point, and I contend that we ought to abstain, as far as possible, from anything like unnecessary tinkering with the machinery provisions of the Bill. Honorable senators will see that the definition does as much, and more than was recommended by the Registrar in Western Australia, and it was done with the aid of the man who, perhaps, of all others, as we all admit, is most competent to make machinery provisions of the ‘kind compre hensive and efficient. It is now proposed to insert words which are altogether at. variance with the intrinsic meaning of “ lock out.” A lock-out means a case in which an employer closes his place of business, and brings about a total or partial suspension of work. An employer is entitled to discharge his men if he finally gets rid of them.
– For any purpose whatever ?
– An employer is entitled to discharge his men if he finally discharges them. If the men will not agree to the employer’s terms, the latter is entitled to “ sack “ them, and this Bill is not to prevent him. An employer may discharge his men for any motive, so long as it is a final discharge, whereas a lock-out means that he does not finally discharge his men, but desires them to return on altered terms. . In the same way, men on strike do not desire to’ go away from their employment, but wish to coerce the employer by suspending work. Senator Pearce wishes to provide that it shall be a lock-out if an employer discharges one or more of his employes ; and the honorable senator ought to think over the effect, of such an amendment. A discharge of men is not an industrial dispute to be brought before the Arbitration Court in an ordinary way for settlement. In case of a lock-out, the employer is liable to be charged with a criminal offence, and may be -involved in a penalty of ^1.000 ; and yet it is proposed to expose him to that penalty if he discharges one of his men. These are the three points to which I wish to call attention : First, that this definition is rather more than what was recommended by the Registrar in Western Australia; second, that what my honorable friend proposes will not remedy tha defect which was disclosed Sn Western Australia, and to which he has properly referred ; and, third, we should be placing an employer in a position of peril if he merely discharges an employ^, as he is entitled to do -that is to say, if he gets rid of him altogether, and not merely sends him away in order to compel him to come back on other terms. I think that when Senator Pearce considers these matters, he will not be disposed to press his amendment.
– The arguments used by the Attorney-General are very plausible. I believe that a number of honorable senators desire to make this measure as fair to both sides as it can possibly be made. I believe that it is only because of- some misunderstanding that some of them object to such an amendment as Senator Pearce has moved. The AttorneyGeneral has said that an employer may discharge any or all of his hands if he pleases. No one has ever disputed .that. What Senator Pearce does dispute, is that an employer has any right to discharge all or any of his hands, even though he should do it absolutely, for the purpose of influencing employes who may be working for other employers in the same business, and who may ultimately come to work for him. Senators Clemons and Best have said that this should apply to one employ^ if he went on strike.” It has been shown here repeatedly, ‘that, even under this Bill, the employer is in an altogether different position from the employ^. There must be a combination or agreement amongst a cer-. tain number of employes to leave their employment, before a strike is declared. But,according ro this measure, and according n some other measures of a similar kind, and amongst them the Western Australian Act. if the Attorney-General’s arguments ari correct, an employer has a perfect right to discharge all or any of his hands, and no objection can be taken to his action. We say that that is all light. But by the amendment it is desired to provide that ar. employer shall not have the right ‘to discharge all or any of his hands in order to influence other employes who may come to work for him or for any one else. Senator Best has suggested that we should strike out the word “ any,” and make the amendment refer to “employes.” But thai might very easily, be got over. A number of employes might have a meeting, at which they determine to resist some reduction or alteration proposed by their employer. They might unanimously agree that representations should be made to him on the subject, and that unless his conditions are relaxed, some consequences will result. If it suited his convenience, the employer might agree to what the men propose, or he might not, and if he did not agree, the result might be that those who were appointed .to carry the message of their fellow workmen would one by one get the “ sack,” and nobody could ever tell why they got it. The whole of them might be discharged within a fortnight or three weeks. I have known that kind of thing to take place. It must be remembered, that any amendment, such as that which Senator’ Pearce has moved, must be governed by the idea that the closing, or par tial closing, of the works, or the suspension, or partial suspension, of the business is for the purpose of coercing or influencing the employes of the employer concerned, or of some other employer in the same business. We say that the definition of “lock-out” is not sufficient. Before a lock-out can be proved under the Bill, there must be a closing, or a partial closing, of the works, or a total or partial suspension of the business, but we say, further, that if an employer takes advantage of his workmen by dismissing one, two, or three of them, in order to influence others in connexion with some alteration he wishes to make, that should be considered as in the nature of a lock-out. Senator Gray is very anxious that employers should be able to .alter the conditions of their employment, in consequence of the very great improvements that are being made in machinery and in industrial methods. There is nothing in the amendment which would prevent that. If an employer alters the conditions of his workshop on account of the introduction of new machinery, or of the adoption of new business methods, he will not be doing so for the purpose of coercing his employes, or the employes of other persons in the same business, to accept the altered conditions, but for a purpose which will be evident to himself, to his workmen, and to any Court which might be established under such a Bill as this. In the Western Australian case, which has been quoted, the employer sought to alter conditions against the will of his. workmen. They made representations to him to that effect, but he was stubborn, and said that he would do as he pleased. The men held a meeting, and as a result, certain individuals were asked to interview the employer. They did so, and as soon as the employer got an opportunity he gave them the “sack,” and be-; cause he did so, he was relieved from any responsibility under the Western Australian Act, arid he would be relieved of responsibility under this Bill. I desire that honorable senators should thoroughly understand that the object of the amendment is to complete the definition of a lock-out, and. to prevent an employer even from discharging his men, with the object of influencing other employes. I point out that if he only suspended them from work until suchtime as the question had been settled by the Court, he would come under the provisions of the Bill, but if he absolutely discharged them he would be relieved of responsibility. I ask honorable senators, which course would be likely to have the greatest influence with the rest of his employes? Would not the absolute discharge, and the absolute penalty suffered by the men who took a prominent part in the matter in dispute have the greater influence upon the other employes? iFor the reasons I have given, I support the amendment, and I hope it will be carried.
– The longer this question is debated, the more muddled I seem to become in connexon with it. There has been a great deal of talk at the subject, and all round about it, but I do not seem to have got to the heart of it yet. That may be dueto some density on my part. While we all expect that this measure will be attended with beneficial results, if it is passed, we must admit that it will deprive employers and employes alike of a very large amount of liberty which they now enjoy. It is therefore desirable that we should be absolutely clear as to the meaning of every one of its provisions. I think that Senator Pearce let the cat out of the bag towards the end of the debate. I was under the impression that no steps could be taken under this Bill, unless a case had been stated to the Court; unless in other words a dispute between employer and employe had been officially brought before the Court.
– The honorable senator was Wrong.
– Very well, I should like to ask the Attorney-General whether I am wrong.
– The honorable senator is so seldom wrong, that I think he must be right in this instance. Will he state the point?
– I would refer the honorable and learned senator to clause 6, which provides -
No person or organization shall, on account of any industrial dispute, do anything in the nature of a lock-out or strike, or continue any look-out or strike. Penalty, One thousand pounds.
Now, what is an “ industrial dispute “ ? If honorable senators will go back to clause 4, they will find that an “industrial dispute” means a dispute in relation to industrial matters -
We must have one employer on the one hand, and an organization of employes on the other hand, before we can have an “industrial dispute.”
– And it must extend beyond the limits of any one State.
– And it must extend beyond the confines of any one State.
– Will the honorable senator look at the definition of “ industrial matters “ ?
– Will the honorable senator permit me to proceed. Before we can have a lock-out, we must have a dispute, that is my reading of the measure.
– Very humbly, I say that I think the honorable senator is quite right.
– The position taken up by Senators Pearce and McGregor is that no employer can attempt to alter the conditions of employment, with a view to coerce his workmen to accept employment on terms which may be disagreeable to them. I can understand the law stepping in and prohibiting an employer from dismissing men, or men from leaving an employer after a case has been stated to the Court. But, before that event arises, I think that an employer ought to be absolutely at liberty to dismiss his men if he pleases, and the men ought to be just as free to leave if they please. Senator Pearce is trying to impose a condition which appears to me to be absolutely artificial. He is seeking to bring the law to bear on every employer, and for that matter, on every workman, before a case has been stated to the Court, or before there is an industrial dispute.
– Nothing of the kind.
– The honorable senator knows perfectly well that my sympathy is wholly with him and Senator Pearce, but I cannot permit that fact tolead me in what I conceive to be a wrong direction. I think it is possible to go toofar in legislation of this character. Weought to recognise the fundamental ideas of liberty - the liberty of the workman towork for whom he likes, and leave when he likes, or to dismiss his employer, and: the liberty of the employer to dismiss hismen, close his shop, or do anything he pleases with his own - so long as there is no case before the Court. But the whole situation changes the moment a case is stated to the Court.
– According to the honorable senator’s logic, there never would be a case before the Court.
– That would be, because there was no organization.
– No, the men would be “ sacked.”
– I am presuming that employes would have organizations, and that if they had any complaint to make to their employers, it would be submitted through the ordinary channel.
– If they wrote a letter it would constitute a dispute.
– If it emanated from the organization it would constitute a dispute, and then if an employer dismissed his men for the reason assigned in this measure, it would be a lock-out, and he would immediately become liable to a penalty of£1,000. The Bill, in this clause, at any rate, does not take any cognizance of individuals. It says that there must be an employer on the one hand, and an organization of employes on the other hand before there can be an industrial dispute. I do not see how the amendment will help the measure in any way. I give Senator Pearce every credit for his good intentions, but we have all heard that the way to a certain very warm place is paved with good intentions. By going a little too far we might make the Bill so rigid in its character that it would be scouted by both employers and employes. I have given this matter very careful consideration, and while I am very sorry to be compelled to vote against the amendment, I find that I can do nothing else, holding the opinions I do, and reading the measure as I do.
Senator PEARCE (Western Australia). - I am surprised at this piece of special pleading, because it can be called by no other name, when Senator Stewart has his attention drawn to an interpretation which he placed on a certain part of the Bill, and in reply to an interjection refuses to carry his inquiries to the length of ascertaining what the clause really means.
– Well, what is it?
– In voting against this amendment, the honorable senator is sheltering himself behind clause 6, which says -
No person or organization shall on account of any industrial dispute” do anything in the nature of a lock-out or strike, or continue any lock-out or strike.
He read that clause, and then turned back to clause 4, to read this definition - “ Industrial dispute “ means a dispute in relation to industrial matters -
When the honorable senator had got that far, I asked him to turn to the definition of “ industrial matters,” but he was so content
– I did not hear the honorable senator.
– Why, the honorable senator objected to my drawing his attention to the fact that he was not informing himself as to what an “industrial matter “ is. Since he would not look at the definition of that term for himself, I shall read it to him.
– I am reading it now.
– “ Industrial dispute “ is defined to mean “ a dispute in relation to industrial matters.” Now, what are “ industrial matters “ ? The term includes -
All matters relating to work, pay, wages, reward, hours, privileges, rights, or duties of employers or employees, or the mode, terms, and conditions of employment or non-employment ; and in particular, but without iimiting the general scope of this definition, includes all matters pertaining to the relations of employers and employees.
Is not the matter on which I have been arguing a matter pertaining to the relation of employers and employes? I am surprised that the usually logical mind of Senator Stewart enabled him to overlook that this measure is based on the Acts of New Zealand, New South Wales, and Western . Australia, in which it is possible before ever an award is given, to convict men of a strike and employers of a lockout.
– It cannot be done under this measure.
– The Bill is framed on the lines of those three Acts. In the very case. I cited, I mentioned that there had never been an award given, but Senator Stewart was content to take no notice of my statement, and to ignore the statements of Senators Henderson, De Largie, and Croft.
– I did not hear the honorable senator.
– In every case in which there was a conviction no award had been given.
– Yes; but there is no such definition of “industrial dispute “ in those Acts as there is in this Bill.
– There is no definition of “industrial matters,” but there is a provision for referring matters in dispute to the Court.
– But the definition of “ industrial matter “ is regulated by paragraphs a and b in the definition of “ industrial dispute.”
– Under this Bill there cannot be a lock-out unless it is on account of an industrial dispute.
– I shall settle that point very quickly by reading the definition of “industrial dispute” in the Western Australian Act - “ Industrial dispute “ means any dispute arising between one or more employers or industrial unions or associations of employers, and one or more industrial unions or associations of workers in relation to industrial matters.
Will Senator Stewart argue that the Tailors’ Union had to take up that caseI cited? It did not take up the case, because that duty was imposed upon the Registrar of the Court. Under this Bill it would be the duty of the Registrar to take up the case.
– Not the Registrar.
– Well, the union could take up the case. But whether a proceeding could be taken under this provision or not does not affect my contention that power ought to be taken to punish an employer for locking out his employes before an industrial dispute had arisen. Senator Stewart is refusing to put employers on the same basis as the employes.
– That power is given in the Bill now.
– It is not given. The employer is in a better position than the employe, and I leave the honorable senator to justify his refusal to put the employer on the same basis as the employed
Senator McGREGOR (South Australia). - If Senator Stewart had been listening he would have heard the Attorney-General say that if an employer were to discharge every one of his employes absolutely, and not pending the settlement of a dispute, he would not come under the Act. How could a dispute between an organization and an employer ever be broughtbefore the Court if he could simply say to his men, “ I discharge you.” No dispute would ever come before the Court.
– Oh, yes, it would.
– Itwould never get to the Court. I admit that an employer has the right to absolutely discharge all his employes if he likes, but I contend that he has no right to take that course for the purpose of influencing the employes of another employer, or future employes of his own, to accept conditions which he wishes to impose, and which the men he discharged would not accept. Unless this amendment be made the employer will be in a position of advantage over the workers. All he would have to do would be to “ sack “ all his employes, and if he did, he would not come under the Act.
– They could leave.
– They could not leave.
Question - That the words proposed to be inserted be inserted - put. The Committee divided.
Majority … … 5
Question so resolved in the negative.
Clause, as amended, agreed to.
Clause 5 (Penalty in case of offence repeated or continued).
– I should like to ask the Attorney-General one or two questions withregard to this clause. In the first place, is it wise or expedient in this Bill, and under present conditions, to give the Court the right to imprison a man for three months if he continues some act of disobedience or some offence’ under the Act? The clause will operate more harshly against the workers than against employers, because, judging from the working of similar Acts in two States, it is the men who in nine cases out of ten are inclined to dispute an award, and to kick up their heels. I should like to remind the AttorneyGeneral that one of the State Judges has remarked that this legislation takes away from us our common law rights, restricts freedom of contract, and deprives the Court of the guidance of the law of evidence. As such, it is a departure from those principles to which we have been accustomed. Is it right in a case of this sort to impose any imprisonment whatever ? If a man refuses to attend before the Court to give evidence, I can understand his being imprisoned. But if there is a lock-out is it right that an employer should be sent to gaol for bringing it about? We know perfectly well that many men have an absolute repugnance to work under conditions which they consider to be unfair. I can believe that there are scores of workmen who would go to gaol rather than work under such conditions. On the other hand, employers, if they think that they are unjustly treated, or that their capital .is being almost taken from them, in consequence of their .getting .no return from it, may chose to follow the example of an American, who blew up his factory with dynamite, rather than continue working under unfair conditions. I do not suppose there will be many such cases, but is it right to give a Judge the power to send a man to gaol for such an offence? Not only does clause 5 deal with that matter, but clauses 48 and 49 also have a similar bearing. Clause 48 provides that -
The Court may .at any time, on ‘the application of any party to an award, make an .order in the nature of a mandamus or injunction to compel compliance with the award or to restrain its breach, under pain of fine or imprisonment.
I should prefer to :rest on clause” 48, which contains wide powers. If after an injunction has been taken out either party refuses to obey the award, we might allow , the Court to imprison as well as to inflict a fine. But to give that power under clause 5 is rather a mistake. I also point out that under clause 49 it is provided that -
No person shall wilfully make default in compliance with any order or award ; penalty, Twenty pounds.
So that there are three different clauses under which an employer or employe can be proceeded against for breach of an award. It appears to me that those clauses ought to be thrown into one, and that a man ought to have the fullest notice before he can be imprisoned. The Court ought to be compelled to consider the circumstances of each case under ‘which the disobedience was committed. I am inclined to regard clause 5 as a blot upon the Bill.
– I have the misfortune to differ from my honorable and learned friend with regard to clause 5. I think that it is distinctly necessary, and that there is no possibility of the difficulties which Senator Dobson apprehends. There is not the slightest chance of the Court sentencing a person to imprisonment, or to pay a fine, without giving the person charged with an offence an opportunity to be heard. He is merely liable.
Clause agreed to.
Clause 6 agreed to.
Clause 7 (Employers or employees refusing to offer or accept employment upon the terms of an award or agreement).
– I wish to ask whether the Attorney-General does not consider that this clause is superfluous? Its object seems to be provided for in clause 78. It is not ‘desirable to confuse the Bill by surplusage, nor is it desirable to have two clauses dealing with one subject, and having the same effect. If the AttorneyGeneral will give the matter .a moment’s consideration he will, I think, agree that clause 7 is covered by clause 78. Clause 7 provides that employers or employes who refuse to offer or accept employment upon the terms of an award or an agreement shall be guilty of & lock-out or a strike. Clause 78 provides for exactly the same sort of thing - the enforcement of an agreement. The clauses seem to be duplicated. .
– I agree with Senator Givens, that it is not desirable that two clauses should provide for exactly the same thing. But clauses 7 and 78 do not provide for exactly the same thing. I may mention that clause 78 was introduced while the Bill was passing through the other Chamber, with a -view to meet breaches of an industrial award, whereas clause 7 applies to a refusal to offer or accept employment -upon the terms of an award1 or agreement. The one clause provides for penalties in respect of breaches or nonobservance of any term of an agreement once the parties have entered into it, whilst the other clause, which we are now considering, deals with cases of persons who refuse to offer or accept employment. Both clauses are necessary.
Clause agreed to.
Clauses 8 to 26 agreed to.
Clause 27 -
On the hearing or determination of any industrial dispute an organization may be represented by a member or officer of any organization, and any party not being an organization may be represented by an employee of that party ; but no party shall (except by consent of all the parties, or by leave of the President), be represented by counsel or solicitor.
Senator CROFT (Western Australia).I move -
That the word “ or,” line 6, be left out, with a view to insert in lieu thereof the word “ and.”
The object of the amendment is to take away from the President the power to allow counsel to appear. I wish it to be understood that I am not casting any reflections on ,the members of an honorable profession, but after three years’ experience of the working of the Arbitration Act in Western Australia, I have come to the conclusion that it is highly advisable in the interests of the proper carrying out of the law that legal gentlemen should not appear. Without counsel, there is a better hearing of the cases - the facts relating to the particular trades under discussion are elicited more fully, and at practically no expense to the unions. I have not known a union in Western Australia to be put to the expense of even ^5 in- any case taken, before the Court; in fact, I have conducted halfadozen cases myself, and at no time have I allowed the costs to exceed That has not been the experience in New South Wales, where lawyers are allowed to appear. No case has come before that Court that has not cost hundreds of pounds, and it is said that some unions have been put to expense amounting to ^1,000. Cases have been drawn out ; and I venture to say that the employment of counsel is one of the causes of the congestion of business. I do not know whether there will be any strong opposition to the amendment, but I should like to read the opinion expressed by the gentleman who now represents the employers in Western Australia, and is the organizer of the National League, which has for its object opposition to the Labour Party and socialistic legislation. That gentleman, Mr. James Gardiner, was, until recently, a member of the Legislative As sembly of Western Australia, and also a Minister of the Crown; and when a proposal was made to insert a provision making it possible for lawyers ,to appear in the Arbitration Court of that State, with the consent of both parties, Mr. Gardiner, in moving to make the appearance of counsel absolutely prohibitive, is reported in the Western Australian Hansard to have said -
If men had honest and just reasons they required no advocates to put their case before the board. Judge Backhouse, in his report, was against the employment of barristers or solicitors before the board. We should avoid the lengthening of disputes, and get right at the kernel of a dispute.
Further on, Mr. Gardiner said -
Wherever lawyers were concerned their eloquence undoubtedly was paid for, and that led them to exaggerate the state of the facts, and to influence where the plain statement of facts might not do so. He wanted the cases decided by the parties interested.
Those remarks may help to allay some of the fears of honorable senators who, and, perhaps, rightly, are looking after the interests of .the employers. No complaint has been made by the employers in Western Australia against the exclusion of professional advocates. Employers there appear for themselves, or by the secretary of .their association ; and in every case, I think, the Court obtains a better idea of the merits of the case than it would if lawyers were permitted to appear.
– I feel a certain delicacy in dealing with this amendment, but I shall view it from- an entirely impersonal -aspect. I even go the length, as we are assembled, not in a Court of Justice, but in the Senate, of saying that I quite agree that lawyers ought to be shut out wherever it is possible to exclude them in the adjustment of disputes such as this Bill deals with. Some people regard lawyers as evils - if so, they are frequently necessary evils - and another complaint, judging by the quotation just read, is that they have to be paid. I quite agree that in investigations of this sort there is, speaking generally, no necessity for lawyers to be present. The inquiries are of a business character between employers and employed, and involve, for the most part, questions which professional men, unless they are fully instructed, are not usually competent to deal with - at any rate, not so competent, as are men of business, whether employers or employed. I can quite believe that no lawyer would have had a chance against Senator Croft when he was conducting those cases to which he has referred. But it seems a pity to alter the clause in the way proposed. The ideas toallow counsel to be present with the consent of all the parties, and by leave of the President; but surely there is no necessity for asking for the leave of the President if all the parties agree. In cases involving some difficulty, the parties might both desire to have professional assistance, and it would be monstrous that they should be denied. Why should it be necessary to consult the President of the Court, however eminent he may be? And, further, I venture to say that the President would never refuse leave - at least, I do not think he would - if the parties desired to have legal assistance. Then why take away from the President the power to have legal assistance in the elucidation of some of the very complex and puzzling questions of law likely to arise? In the first place, there is the mixed question of law and fact as to whether an industrial dispute “ is one within the meaning of the Act, extending beyond the limits of any one State. It might be the desire of both employers and employed to have this question exhaustively argued, because the jurisdiction of the Court depends on it, the certificate of the Registrar being only prima facie evidence. The Court will have to determine that question, and it would be rather a slur on the President, who is a Judge of the High Court, to , take away from him the power to say to the parties that in his opinion he ought to have the assistance of counsel on any particular point. The President, under the new system, constitutes the Court, and surely in this matter we may trust to his judgment and discretion. Supposing the workmen concerned desired to be legally represented, it would be very hard if they were deprived of the assistance of counsel at the instance of the President on an objection on the part of the employers. My honorable friend will see that whilst we are all agreed that the parties should not be at liberty to waste time, - and money, if honorable senators please - by having the assistance of counsel at the sweet will of either of them, there is a double safeguard provided. In the first place, the parties must be agreed before they can have counsel, and in the next place the President might say “This case involves a very difficult question, upon which the whole jurisdiction of this Court depends, and I think I should like to hear counsel discuss it.” I think that would be a fair position for the President to take up. Senator Croft may be assured that the powers given under the clause would not be abused when it is known that itis the intention of the Bill that the parties shall conduct their own case. I think we may trust to that safeguard without making it incumbent on the President to have the consent of the parties, and on the parties to have the consent of the President, before the assistance of counsel can be secured.
– The Attorney -General has made a very fair and a very plausible statement, but I think that laymen generally, and trade unionists particularly, have always a dread of the legal profession, not because they are under any impression that members of the profession will act unfairly, or will distort the true position of affairs to such an extent as to bring about an injustice, but always, I think, because of the costs. As the clause stands at present, if either the employer or employe desires the assistance of counsel, he must get the consent of the other side, and the President can secure the assistance of counsel with the concurrence of either party. We say that if the employer and employe’ desire the assistance of counsel, it is wise that the President should also have a say in he matter. That would provide a safeguard so far,at least, as the expense to the parties is concernecl. If employer and employe’ can make out a good case for their employment, the President will never refuse to give them the assistance of counsel. On the other hand, if the President requires the assistance of counsel, and makes out a fairly good case, there can be very little doubt that the opposing parties will agree to the President’s request. But if either party believes that the employment of counsel may be a serious disadvantage to them, and that the expense might mean ruin so far as they are concerned, we think they should have a right to oppose it. If the clause is amended, as I hope it will be, the decision of the question will be left to the parties and the President, and the concurrence of the three will be required for the employment of counsel. Without labouring the question by reference to what has happened in some of the States in connexion with decisions given by the Arbitration
Court, I may say that I hope- the amendment will be carried, and I believe it will inflict no injury upon any one.
– In opposing this amendment, the AttorneyGeneral has said that an occasion might arise when the /President of the Court would like to have the assistance of counsel in the elucidation of important points. The honorable and learned senator is no doubt aware that the employment of eminent counsel in such a case might be ‘a very costly matter for the .parties to the dispute. There are many organizations that are not in the sufficiently good financial position to enable them to employ eminent counsel, and they would be placed at a distinct disadvantage as compared with; the opposing side.
– The honorable senator can trust the Judge.
– Certainly, and the Judge being presumably an eminent lawyer, himself, should be as competent to elucidate any difficult point as any counsel whose assistance he might be able to get. The Attorney-General appears to have forgotten that the case which he instances particularly is one which would not come before the Court for a decision. The case instanced was one in which there might arise a question of mixed law and ‘ fact ; for instance, as to whether a dispute extended’ beyond the limits of any one State. If the honorable senator will look at clause 19 he will find that the Court may be asked to deal with any dispute certified to the Court by the Registrar as one which should properly be dealt with by it in the public interest. It is, therefore, the .Registrar who will decide whether such a dispute is one which should come before the Court.
– His decision is only, -prima facie; it is not binding.
– And in the final resort, who is to have the decision in the case? The point will be a constitutional one. and it is the High Court that will have the decision.
– It might be.
– I ask why we should burden the litigants at the first, intermediate, and final stages with the enormous cost involved in feeing and retaining emi nent counsel to assist a Judge who should be as competent to- form a correct1 judgment as any counsel thai might be employed? The amendment is a very simple one, and it would give effect to what’ I believe is the intention of all parties in the Senate and in another place with regard to the cheapening of “the proceedings in industrial disputes. Under, the clause as. it stands, before counsel can Be employed both parties must consent, .but it is also provided that without, the consent, of either party the President may say, I must have the assistance of counsel,” although, being a Judge, he should require “the assistance of counsel less than any one else.
– I think the honorable senator is mistaken; the clause is only permissive.
– I have not contended that it is compulsory. I have heard of a case in the old country of an eminent counsel receiving a retaining fee of 25,000 guineas and refreshers at the rate of 1,000 guineas per Say. I must say that I should feel very much refreshed if I got 1,000 guineas per day, for even a very hard day’s work. . I mention this case as an illustration of the enormous expense of litigation when, counsel are brought into a case. Under the clause as it stands the President may. give leave, to either party to a dispute to employ counsel. To whom is he going to give leave ? Is lt to any par?y that makes the request? I say that in this clause the President of the Court is placed in a position to override the intentions of Parliament. The amendment is one which the Attorney-General might very easily accept. It will not involve any radical alteration of the Bill, and will tend to reduce the cost of arriving at a settlement of these industrial disputes.
– We are privileged to have a good many members of the legal profession in the Senate, and they naturally feel a little delicacy in dealing with a matter of this kind. As I am not a member of the legal profession, I have no hesitation in saying that the amendment strikes me as being simply monstrous. It is a proposal to limit the right of the President to say whether legal advice may be allowed in the conduct of matters of this sort. There is no party in politics that, from our experience in New South Wales, comprises a larger proportion of men who are desirous of becoming lawyers than the Labour Party. It is .greatly to the credit of men like .Mr. Hughes, Mr. Holman, Mr. ‘Fitzgerald, Mr. Hall, and others that they have already become barristers, and yet we have honorable senators belonging to their own party endeavouring to prevent lawyers having the right to conduct cases under this Bill.
-The honorable senator has a very delicate regard for the members of our party.
– I have a much greater regard for the members of the Labour Party than I am credited with. I can inform the honorable senator that I am a genuine liberal, not one of those tories who believe that no one has a right to live but themselves.
- Senator Croft may rest’ assured that there will be no misconception of his attitude in moving this amendment, but I think that the honorable senator and those who are supporting the amendment must misunderstand the . clause. It is obvious at once that the whole spirit of the Bill, as particularly expressed in this clause, is to have industrial disputes whenever it is practicable, settled without the aid and assistance of any professional men in the Court. From the moment he took his office the President would recognise that that was the intention of Parliament. But it is obvious that there must arise certain cases where it might be desirable, in the interests of both parties to a dispute, or in the interests of particular principles to be determined, that regard should be had to the usual practice of engaging counsel on each side.
– Very likely there will be very big questions to be threshed out and determined.
– There will be, but those will be the exceptional cases. In the generality of cases, clause 27 will be adhered to, and we shall see no solicitor or barrister engaged. Senator McGregor, .in supporting the amendment, pointed out that if both parties to a dispute were willing to be represented by counsel, it .should be necessary for them to appeal to the Judge, and if they made out a good case, counsel might be employed. Reversing the process, the honorable senator pointed out that the effect of the amendment would be that if the President did desire legal assistance, and made out a good case, and both parties were in accord with his view, then counsel should be employed. It would put the President in this position : that he would have to consult the parties as to his method of procedure. In many superior Courts of law, in these States, as well as in Great Britain, and other parts of the British Empire, when difficult questions of law have to be decided, the Judges very often express a desire to hear counsel on either side, because they know that by the incessant application of legal minds to difficult and technical points, they can get the case presented in all its aspects to the fullest possible extent. I would point out to Senators Croft and McGregor that in many exceptional cases where it might be obviously desirable that counsel should be employed, under this amendment it would be quite possible for one of the parties - a party perhaps having a very bad case - to be recalcitrant to the very last for no other reason than to harass his opponent or delay an award. Although the President might think it was desirable in the interests of the proper determination of all the issues that might arise, that counsel should be employed, yet one man, simply because he knew that his assent in conjunction with the assent of the other party was necessary before counsel could be employed, might prevent that desirable course from being adopted. Senator Givens has pointed to all the evil consequences which .would -flow from .the em:ployment of counsel ; but I wish to impress upon him .that the general principle laid down is that there shall be no employment of counsel or .solicitors, and that the object of this provision is to meet exceptional cases. Undoubtedly, the President will be one in whose integrity, and whose competence we can place implicit confidence. Surely he can be relied upon to regard to the fullest extent the spirit of the Act, and not ito recklessly and wantonly give leave for the employment of counsel, and the piling up of huge costs. When it was interjected that it was only permissive, .and not compulsory, Senator Givens replied that he had not said that it was compulsory, but the, whole trend of his argument wa.s based on the assumption that in the generality of cases counsel would be employed. Surely we can trust the President to exercise that discretion which must be reposed in him to meet perhaps one case in .a thousand or ten thousand. Surely he ought not to be placed in such a position that he will be compelled to say, “ I cannot exercise this discretion without the concurrence of both parties to the dispute “ when one of them may be a man of a very recalcitrant disposition. As regards the costs to which Senator Givens has referred, he will find this provision in clause 38 -
The Court shall, as regards every industrial dispute of which it has cognisance, have power -
To order any party to the dispute to pay to any other party such costs and expenses, including expenses of witnesses, as are specified in the order, but so that no costs shall be allowed for the services of any counsel, solicitor, or agent.
– A solicitor would insist upon a definite arrangement being made before consenting to go into Court.
– No costs could be allowed as against the other side. If each party is agreeable to employ a solicitor, why should they be required to obtain the consent of the President? Again, in an exceptional case, why should not the President have the ordinary power of exercising a legal discretion? In answering the argument of the Attorney-General, that in certain cases there might arise complicated issues of law and fact, as to whether or not a particular dispute was an industrial dispute within the meaning of the Act, and extending beyond the limits of a State, Senator Givens said that clause 2 1 provides that the certificate of the Registrar will determine that point. It does nothing of the kind. It simply makes itprima facie evidence of the fact that the dispute is one that comes properly within the jurisdiction of the Court. Let me give an illustration. In cases of criminal prosecutions for felonies and certain misdemeanours, the first proceeding is to bring the accused before what is very often called, but is not really, a court of justices. An inquiry is entered into with regard to the offences charged against him; the justices hear the evidence which is presented against him, and any evidence which he may care , to call in his defence, if he puts up his defence then ; or they simply take his statement that he will reserve his defence for a later occasion. They have no power to decide whether he is guilty or innocent. They are conducting a preliminary inquiry, and all they can do at its termination is either to commit him for trial at another tribunal or dismiss the case. If they commit the man for trial they find what is called a prima facie case of guilt against him. It simply indicates that, so far as the evidence is concerned, there is something to answer. The justices occupy an analogous position to the Registrar of the Arbitration Court. Some party will go to the Registrar with a dispute, and ask for a certificate that it properly comes within the jurisdiction of the Court. Seeing on the face of it that it is nothing of the. kind, the Registrar will say, “ This dispute is entirely confined to one State,” and ask the applicant to furnish him with some proof that it comes within the jurisdiction of the Commonwealth Court. On the failure of the party to furnish that proof, the Registrar will say, “ I decline to give you a certificate.” Otherwise the Court would be appealed to in a large number of such cases where the parties had no locus standi. If there is anything on the face of the case to indicate that it might be argued successfully, that it comes within the jurisdiction of the Court, the Registrar will give a certificate to that effect ; but where he sees clearly and plainly that it would be impossible to argue a case into its jurisdiction he will refuse to certify.
– I trust that the Committee will see the advisability of adhering to the basic principle of the Bill, and the necessity of excluding entirely, or as far as possible, the legal fraternity from any connexion with industrial disputes. As it was originally drafted the Bill excluded lawyers entirely from the Arbitration Court, because it was recognised that, once they got a footing, it would be almost an insuperable difficulty to exclude them. In this matter we have the experience of the New South Wales Court to guide us. Result - every arbitration case that comes before the Court has, at least, one lawyer in it. If the workers desire to have anything like a fair show in the presentation of their arguments to the Court they have to employ the best legal men they can secure. The Attorney-General has been frank enough to admit that he does not regard the employment of lawyers as essential. In fact he rather inclines to regard their absence from industrial cases as desirable in the interests of all concerned.
– But when an exceptional case arises why should not the President have the right to decide ?
– -When an exceptional case arises I believe that the parties on either side will have sufficient judgment to know that the points at issue are above their reach, and will concur with the Judge in his desire to have legal assistance. But I do not think that the Court will ever be called upon to ask for legal assistance to discuss whether a dispute in an industrial sense may be termed a dispute at
All, or whether it can be considered as extending beyond the limits of any one State. In my opinion, lawyers are not particularly competent to say what is a dispute, and I am satisfied that they will never be able to assist the Judge very much in regard to technicalities. I haveheard lawyers practising in connexion with industrial disputes, and I came to the conclusion they were in precisely the same position as I should be in if I were made a judge, or had to act for the Attorney-General in a great law case. They talked about matters of which they absolutely knew nothing. I believe they had to be schooled for a month or two beforehand by men who knew what the industries were, and understood the technical terms employed. In the interests of the Court which is to be established, and in the interests of justice, I appeal to honorable senators to support Senator Croft’s amend ment. What we require is that in determining industrial matters,’ the Court shall act according to equityandgood conscience. How much of equity and good conscience is imported into a fight between two real -legal luminaries? It is a question of exercising the greatest amount of skill in raising points so as to tie up the other fellow. It is not a question of justice, but of winning -the case. Lawyers are paid to win their cases no matter whether they prove the guilty man to be innocent or right to be wrong. You go to any lawyer and ask him to take up your case, and he will tell you that he thinks he can win it. If you pay him, he will try to win it, or, at least, he will make a pretence of trying in order that he may score. We want to keep the Arbitration Court as free as possible from that kind of thing. We want to have evidence brought forward by men who know what the industry is, what the technical terms are, what is their relation one to the other. We have no fear as to the result. But if we import legal practitioners into the Court, I shall watch with fear and trembling every case that is submitted for settlement.
Senate adjourned at 10.24 p.m,
Cite as: Australia, Senate, Debates, 3 November 1904, viewed 22 October 2017, <http://historichansard.net/senate/1904/19041103_senate_2_23/>.