12th Parliament · 1st Session
The President (Senator the Hon. W. Kingsmill) took the chair at 11 a.m., and read prayers.
– by leave - In pursuance of a promise made in another place by the Minister for Markets (Mr. Parker Moloney) I desire to place on the table of the Senate, for the information of honorable senators, a report prepared, at the request of the Government, by the Honorable J. A. Gunn, Director of Development, on the proposals submitted by the Australian Dried Fruits Association for the stabilization of the Australian dried fruits industry. The Minister for Markets has already intimated that he has decided to convene, at an early date, a conference consisting of representatives of the Governments of New South Wales, Victoria, South Australia and Western Australia, the Commonwealth Dried Fruits Control Board, the States Dried Fruits Boards, and other organizations interested, in order that the position ofthe dried fruits industry may be reviewed, and consideration given to the action deemed necessary to effect a general improvement in the future prospects of the industry.
asked the Minister representing the Minister for Trade and Customs, upon notice -
What were the quality, value, and description of clover seed imported into Australia for the years ended 30tli June, 1929, and 30th June, 1930?
– The Minister for Trade and Customs has supplied the following answer : -
Clover seed is not recorded separately in the import statistics. It is, therefore, not possible to furnish the information sought.
asked the Minister representing the Prime Minister, upon notice -
In view of the fact that the sum of approximately £62,000 will be paid annually as primage duty on woolpackB and cornsacks, will the Government, having regard to the hard times that the wool and wheat industries are experiencing, favorably consider the exemption of woolpacks and cornsacks from primage duty?
– The matter will receive consideration.
Trainino in India.
– On the 24th July,
asked the following questions upon notice: -
I am now in a position to inform the honorable senator as follows: - 1.No.
– On the 24th July, Senator H. E. Elliott asked the following questions, upon notice -
I am now in a position to inform the honorable senator as follows. - 1, 2, 3, and 4. The Government is fully aware of the value of the work being carried out in the writing of the Official History of Australia in the war, not only as a record of the service of the Australian forces, but as a text book for present and future students of military history and tactics. Both the Government and Mr. Bean are desirous that the work should be completed - as early as possible, having due regard to the accuracy and fullness of detail desirable.
– On the 24th July; Senator Dunn asked the following questions, upon notice -
– On the 19th June Senator Dunn asked the following questions, upon notice -
I am now in a position to supply the following information : - 1. (a) North Australia. - The local authorities advise that approximately £69,500 lias been provided, all from Australian sources. (b) Central Australia. - No reliable records arc available, but it may be accepted that a very small amount of capital has been invested in mining ventures in Central Australia during the period under review. 2. (a) North Australia. - A statement containing the who.le of the existing leases or claims, with the lessees’ and owners’ names and the situation of each lease or claim,’ has been laid upon the table of the Library. (61 Central Australia. - A statement containing the whole of the existing leases or claims, with the lessees’ and owners’ names and the situation of each lease or claim, has been laid upon the table of the Library. 3. (a) North Australia. - Leases granted - 744 gold-mining leases, of which only 4 are now in existence; 240 mineral leases, of which only 20 are now in existence. Claims now being worked - 0 mineral leases, 15 mineral reef claims, 5 blocks held under gold-mining lease applications, and 1.4 blocks held under mineral lease applications. (b) Central Australia. Leases granted - 10 gold-mining leases, all at present in existence, 9 mineral leases; in addition to the above, there are 105 claims held under approved mineral lease applications. At present only 27 of these mineral claims are being worked.
– I move-
That one month’s leave of absence be granted to Senator Lynch on account of urgent private business.
I am pleased to inform the Senate that Mrs. Lynch is slowly improving in health, although her condition still causes great anxiety.
Question resolved in the affirmative.
In committee: (Consideration resumed from 24th July, vide page 4618).
After section 38b of the principal act the following section is inserted: - “38ba. The court shall not include in any award or order a provision requiring a person claiming the benefit of that award to notify his employer that he is a member of an organization bound by the award.”
Senator Sir GEORGE PEARCE (Western Australia) [11.13]. - I think that the Vice-President of the Executive Council (Senator Daly), as well as other honorable senators, are under a misapprehension as to the reason for the opposition to this clause. My objection to it is not because it would prevent employers from paying lower wages than those fixed by an award. That is not the point. I remind honorable senators that some time ago Mr. MacRobertson, the head of the well-known confectionery firm, in a statement in the press, outlined the number of awards which applied to his industry. Some honorable senators seem to assume that an industry is governed by one award.
That is not always so. Many industries are governed, hy scores of awards. Speaking from memory, I believe that about 30 awards, both Federal and State, operate in the confectionery industry, -in employee may be working under a Federal award which expires by effluxion of time, when he comes under a State award. The employer does not know from day to day whether some of his employees axe under Federal or State ;i wards.
Senator SIR GEORGE PEARCE.Awards can expire by effluxion of time or a State award may take the place of a Federal award. Employers who desire to pay award rates should know whether their employees are under Federal or State awards. The practice has been for !in employee to notify the employer that lie is a member of a certain organization. The employer is then able to keep in touch with the award. He knows for instance if the blacksmiths or engine drivers in his employ are under Federal or State awards. If certain of- his employees are members of the Engine Drivers Association, he knows what rate he has to pay them; and in the absence of that information he may be transgressing an award. It is left to the discretion of the court to order that an employee working under a Federal or State award shall notify the employer that he belongs to an organization. This amendment is to prevent the court making an order to that effect. It is not a matter of allowing some employers to pay lower wages, but simply to enable them to loyally abide by an award. If this provision is not included, the court need not make such an order.
– I endorse what the Leader of the Opposition (Senator Pearce) has said, particularly with respect to the position which exists at the MacRobertson works where. I understand the employees are working under at least 60 different awards. Recently I had a most peculiar experience in connexion with a charitable pageant, arranged at Geelong to welcome the famous British aviatrix, Miss Amy Johnson, the proceeds of which were to be devoted to local charities. When the committee was discussing the arrangements, certain persons offered to do the necessary staff work on the grounds, gratuitously. But in view of the large number of unemployed in the district, it was decided not to accept the offer of a number of young men who undertook to do the work gratuitously, but to engage some of the unemployed. The race-course, which Ls under the control of trustees, was staffed by 40 men who were on duty from about raid-day until 4 p.m. We paid these men 17s. Gd. each which we considered handsome remuneration considering the light nature of the work, and that they were able to witness the pageant free of charge. Within two or three days I received a letter from the secretary of the Theatrical Employees Union demanding the payment of 22s. 6d. instead of 17s. 6d. Had J known that these men were members of the union and. were likely to demand that amount, particularly when the funds were to relieve unemployment, other arrangements would have been made. This experience, I contend, supports the argument of the Leader of the Opposition that employees should notify employers if they are members of an organization.
– The point raised by Senator Guthrie is quite irrelevant. Senator Guthrie is not bound by a . Commonwealth award in respect to the employment of any one, and the men to whom he refers could not claim 22s. 6d. from him even though they are under a federal award.
– The theatrical employees are under a federal award.
– But that is not binding upon those who are not parties to the award.
– The race-course trustees would be.
– Did the honorable senator engage the men ?
– Yes, on behalf of the committee.
– If the honorable senator were a respondent to the award he would be bound by it in accordance with the law. An employer who wishes to obey the law, has nothing to fear from this provision, and those who do not, have much to gain by its non-insertion. The Leader of the Opposition referred to the position of employees who one day may be under a Federal award and on the following day under a State award. That is impossible as there is a statutory provision to the effect that an award remains operative until a new award is made. He also mentioned the possibility of an employee working under a federal award which might be cancelled when he would then come under a State award. An employee working under a State award would not be affected by this provision. When a federal award ceases to operate this provision has no application. Honorable senators opposite may endeavour to cloud the issue; but they must come back to the point that no hardship can he inflicted upon an employer who wishes to pay award rates, and this is ofgreat advantage in protecting employees from those who do not wish to pay award rates. I ask the committee to agree to the new provision.
Senator Sir HAL COLEBATCH (Western Australia.) [11.25]. - I trust the committee will reject the clause on a much more important principle than that which the Minister says is involved. An Arbitration Court judge is appointed to hear the evidence adduced by both parties and then to decide what shall and what shall not be included in an award. The suggestion of the Minister is that Parliament should usurp the functions of an Arbitration Court judge and tell him what he must and must not do. What right have we to say on the one hand that arbitration court judges and conciliation commissioners shall be entitled to come to a decision on the evidence placed before them, and on the other that a judge or a commissioner having heard the evidence shall insert in an award a condition in accordance with the wishes of the dominant political party for the time being? In my opinion it is one of the most vicious principles that could possibly be enunciated.
. - An honorable senator before talking of the enunciation of vicious principles should carefully study the measure. This bill imposes limitations upon the power of the judges. The powers of the judges are limited to arbitral matters, and the notification by an employee to an employer that he is a member of an or ganization does not form the subject of dispute. In my opinion a judge has not the power to insert this provision in an award. A condition precedent to the recovery is not an arbitral but a legislative provision.
– The judges must have considered it necessary.
– The judges may have been carried away by what Senator Sir Hal Colebatch referred to as a specious argument in connexion with an industry such as that conducted by Mr. MacRobertson. I ask Senator Sir Hal Colebatch to closely study the clause and. then to advise the committee whether it is the function of an arbitral tribunal appointed to determine a question of wages and conditions between employers and employees, to make such an order. The contentions of some honorable senators, such as Senator Sir Hal Colebatch, are that arbitration court judges should enter into the realm of politics and legislate instead of arbitrate.It is the responsibility of Parliament to let the judges know in clear language that it expects them to arbitrate and to leave legislation to the Parliament.
– If the attendants at the pageant at Geelong referred to by Senator Guthrie are members of a federal organization they should be paid federal award rates. There is the law. It should not be broken. I rose particularly to combat the statement made by Senator Colebatch that this was a vicious procedure. Not so long ago the Associated Press of New South Wales submitted an ultimatum to the members of the Australian Journalists Association intimating that unless that organization was prepared to discuss a general reduction of 10 per cent. in salaries, the Associated Press would cease the publication of the Evening News and the Daily Pictorial. This action was taken despite the fact that the Australian Journalists Association was working peacefully under an award of the Arbitration Court.
Senator Sir HAL COLEBATCH (Western Australia [11.32]. - The matter mentioned by the honorable senator does not concern me in any way. I stand entirely by the principle which I have enunciated. In many instances two awards are operating side by side. Surely, then, an employe!’ is entitled to know under which award his employees are working. Unless an employee informs him of the union to which he belongs, he will not know under which award his business is being conducted. If we continue to legislate in respect of these minor matters, we shall be compiling a long list of prohibitions against the Arbitration Court, which will make the act unworkable. If we cannot trust the judges to hear the evidence and arguments, and then decide issues, it would be as well to abolish the whole system of arbitration.
– No honorable senator wishes to encourage employers to avoid their responsibilities under Federal and State awards, but I object to any provision in the law which will have the effect of making employees act the part of detectives. This proposed new section will not prove an effective safeguard against the employer who wishes to disobey the awards of the court. I feel sure that in the incident mentioned by Senator Guthrie it was the secretary of the Geelong union who demanded union rates of wages for the men concerned. The secretary would do this to bolster up his own position. Unfortunately, there are in this country not a few of these individuals who are always seeking to make trouble. Recently we heard of an employer in Queensland who, while travelling in his motor car, gave a swagman a lift. The man opened the gates for him in the course of the day’s run, and later the secretary of the union to which this man belonged, sent a letter to the employer demanding award rates, arguing that he had employed the man to open the gates for him.
– That story appeared in the Sydney Bulletin seven years ago.
Question - That clause 31 stand as printed - put. The committee divided. (Chairman - Senator Plain.)
Majority . . . . 14
Question so resolvedin the negative.
Section 33c of the principal act is repealed.
Senator Sir GEORGE PEARCE (Western Australia) [11.42]. - I ask the committee to reject this clause. Section 38c, which it seeks to repeal, reads -
The court shall, in the case of every industrial dispute, consider in the course of tlie hearing and as promptly as possible if there is anything in the nature or circumstances of the industry, or any other reason, which makes it more desirable that the dispute or any part of it should be dealt with by the court than by any State industrial authority or by State industrial authorities in the several States and, unless the court so declares, it shall dismiss or refrain from further hearing or determining, the dispute or in part.
As this appears to me to be an eminently sensible provision, I hope it will not be repealed.
– I am advised that the bank officers’ associations in the various States view the proposed repeal of section 38c with a good deal of concern. The Bank Officers Association of New South Wales is working under a very good award, which it wishes to retain. This section was inserted at the request of that association to prevent federal arbitration judges from joining State associations with federal awards, without first hearing the parties concerned. If the section is repealed State awards may be overridden by Federal awards without consideration being given to the officers concerned and without hearing their objections. If the clause is agreed to I shall submit an amendment, of which I have given notice, to safeguard the bank officers’ associations in the various States.
– The division on this clause will test the Senate as to its sincerity to adhere to the letter and spirit of the Constitution. “We have listened to one or two lectures about adhering to the Constitution, and attempts to take away from a federal court matters in respect of which the Constitution says that court shall exercise jurisdiction. The placitum of the Constitution is that the Commonwealth shall have power to legislate in respect of conciliation and arbitration for the settlement of disputes extending beyond the limits of any one State. Parliament exercised that legislative right and established a court, and this clause proposes to enable a Commonwealth court to rid itself of something that the Commonwealth never expected it to shoulder. I invite honorable senators to consider section 38c of the principal act, which reads - ,
The court shall, in the case of every industrial dispute, consider in the course of the hearing and as promptly as possible if there is anything in the nature or circumstances of the industry, or any other reason, which makes it more desirable that the dispute or any part of it should be dealt with by the court than by any State industrial authority or by State industrial authorities in the several States, and, unless the court so declares, it shall dismiss, or refrain from further hear* ing or determining, the dispute or part.
The citizens of this Commonwealth have certain rights under the Constitution as well as have the States qua States. They entered into the federal compact on the distinct understanding that in a case of a dispute extending beyond the limits of any one State there would be a federal tribunal to deal with it. Section 38c takes away from the citizens of any one State the inherent right which is given to them under the Constitution. I shall be pleased to hear whatever arguments can be advanced in support of it, but I fail to see how any of the guardians- of the Constitution on the other side of the chamber could have voted for this provision, and can now vote for its retention. It is a distinct denial of a right conferred by the Constitution on a certain class of people. It gives to a Commonwealth judge authority to take away from a body of workers in any State something that was guaranteed to them under the Con stitution, and it limits their right to go to the High Court. The court simply says that it will not hear the case.
We heard a good deal yesterday and last night about certain High Court provisions being deliberately placed in the Constitution so that those who formed the federation would be guaranteed access to that court. They also are affected by this provision. But my main objection is that it takes” away from the body of the workers who voted in favour of federa-tion a right that was guaranteed to them when the federal pact was signed. I ask honorable senators before they reject the proposal of the Government and vote for the retention of section 38c of the principal act seriously to consider that aspect.
Senator Sir HAL COLEBATCH (Wes; tern Australia) [11.50]. - I have a good deal of sympathy for the view put for: ward by the Leader of the Senate. I suggest that section 38c of the principal act be rejected because of the wholly unL expected interpretation that was given to the term “ extending beyond the limits of any one State.” It seems obvious to me that if a dispute does bona fide extend beyond the limits of any one State it is not desirable for the High Court. to refer the matter back to the court of a single State. From that point of view I regard the section as an attempt to correct something that it does not correct. I do not think that any one will have the hardihood to argue that the interpretation by the High Court of the words “ extending beyond the limits of any one State” does not go far beyond what the framers of the Constitution or the people of Australia ever contemplated. Last night we heard a reference to the long delays that were experienced by, I think, the Sydney tramway employees in having their case placed before the court. It was not contemplated that a dispute of that nature could, by any stretch of imagination, extend beyond the limits of any one State. It was never thought that tramway employees in Sydney, Melbourne or Adelaide, each having their separate dispute and governed by individual circumstances, could participate in a dispute extending beyond the limits of any one State. I think that I am right in saying that lift employees created a dispute that extended beyond the limits of any one State. I believe that it was to correct such a state of affairs that section 38c was originated. I admit that it is an utter inconsistency with the principle of federal arbitration, and accordingly I shall not be one to make any endeavour to retain it.
– If section 38c of the principal act is retained it certainly, on Senator Colebatch’s own argument, gives to the Industrial Court the right to decide whether a matter is or is not a genuine interstate dispute. Whether the action was right or not, the High Court was set up as the watch dog of the Constitution; and that position has to be accepted. I believe that the reason advanced by Senator Colebatch was really the main feature that prompted Parliament to introduce section 38c but, by a subterfuge, it gives to the Industrial Court the right to limit the jurisdiction of conciliation and arbitration in the case of interstate disputes. Last night the Senate protested against, a certain clause, and it was postponed for further consideration on the ground that to enact it would be to defeat the letter of the Constitution. Whatever might have been the individual opinions of honorable senators, they took the stand “ There is the Constitution. We as a Senate have to see that nothing is inserted in our legislation that defeats either the spirit or the letter of the Constitution “. I am not very much concerned whether this provision is cut out. It is consequential upon the other to which I have referred, and there is no necessity for it if the postponed clause is passed by Parliament. If that is done, the class of interstate disputes to which reference was made by Senator Colebatch could be dealt with by the industrial court.
– I am glad to hear that the Minister is not concerned which way the Senate votes in this matter. The provision under discussion is a purely practical one, and is of moment from that point of view. It has been pointed out that there have been a large number of what are really “ paper “ disputes so far as their inter state extension goes and, in the interests of common sense, if for no other reason, the Senate should retain this provision. It enables a judge of the Arbitration Court to decide whether a dispute is one that should be dealt with by a State rather than by a Federal tribunal. Is it not better that the judge should be entrusted with the power to say “ I think that, on the facts, this should be dealt with by the Commonwealth Arbitration Court?” or “There is really not much of an interstate matter in this. As local conditions are affected it is better thai it should be dealt with by a State tribunal “. I do not see the connexion between this and the other clause referred to by Senator Daly, but perhaps the honorable senator will elaborate that later. If in a proper case, a judge refuses jurisdiction then mandamus will lie to the High Court. That right is not debarred by section 38c of the principal act. I venture to suggest that it has proved in the past to be a very useful provision indeed, and has rid the court of small cases with which it should not be called upon to deal, cases that were of a really intra-state nature, brought before the federal tribunal only because “ paper “ disputes had been manufactured. The provision is a guard against fictitious and insignificant disputes being brought before the federal court. 1 suggest that whatever else we do we should endeavour to facilitate the work of administration of the Federal and State courts and try, so far as we can, to keep them in their proper respective spheres. I shall vote against the clause.
SenatorDALY (South Australia VicePresident of the Executive Council) [11.58]. - There is one point on which I do not wish to be misunderstood. I told the Senate that I was not very much concerned whether this clause was retained - provided that, the postponed clause to whichI have referred is accepted. If that is done I see no particular necessity for this clause. The very fact that mandamus or prohibition is possible was one of the arguments suggested last night in favour of our not introducing anything that was ultra vires of the Parliament or that would attempt to cloak somebody with certain powers.
– Where is this provision ultra vires of the Constitution?
– Section 38c itself is not ultra vires. The Commonwealth Parliament gives to the industrial court the right to decide whether it shall procried with an industrial dispute. Does i lie honorable senator deny that proceedings could be taken to the High Court if a State industrial court declined to proceed with a dispute that was interstate in character?
– I suggest that rhey could.
– Of course they could. This section of the act has to be read with the limitations that I have already suggested have to be applied to section 21aa, to the extent that, so far as it is intra vires of this Parliament, we hereby enact that the court shall do so and so. That is its only effect. The honorable senator admits that classes of disputes which would appear to come under this provision could be made the subject matter of mandamus to the High Court; in other words, this particular section would not affect them. We have heard a lot of talk about legal entanglements, [nstead of assisting the Government to put up a barbed wire entanglement to keep out lawyers, the honorable senator suggests that we should pull down some of the wire.
– Why not postpone the clause until clause 12 is dealt with?
– The suggestion is a good one.
Clause 33 (Cancellation of award).
Senator Sir GEORGE PEARCE (Western Australia) [12.2]. - This is an important clause because its purpose is to repeal section 38d of the principal act which permits of an application to be made by any organization or person interested, or the Registrar, for the cancellation of an award in the case of a lockout or strike. We have already agreed to the deletion of the provisions which provide penalties for strikes and lockouts, but this section is on quite a different plane. It would be farcical to permit an organization of employers or employees to register under the act, go to the court, obtain an award, and then promote a strike or lockout and still re main registered. An organization should make up its mind whether it is to be under the Arbitration Court or not, and, having decided to be under the Arbitration Court and having obtained an award, it should not be entitled to say that it is not going to obey that award. Why should it remain registered under an act with the provisions of which it does not intend to comply?
– Assuming that the Port Adelaide waterside workers were wrong in striking against Judge Beeby’s award, would the honorable senator suggest that the award should be cancelled and the workers of Fremantle and Sydney who did not go out on strike be deprived of its benefits.
– I am speaking of the power to apply for cancellation ; the cancellation itself would naturally be decided upon the circumstances. If section 38d is removed from the act there will be no power to apply for cancellation. Obviously, if shearers in five of the States are working peaceably under an award and the shearers in the sixth State have rejected it, it would not be wise to appeal for the cancellation of the shearers’ award; but if the men are striking against an award in every State, then, I contend, opportunity ought to be afforded for an application for the cancellation of the award. Provision is made in sub-section 3 of section 38d, that the order for suspension or cancellation may be limited to persons named therein, to classes of persons of any branch of the organization, or to particular localities, but with the deletion of the section no power would exist to apply for the cancellation of an award as affecting a branch of an organization.
– That power has been exercised in the past.
– I ask the committee to vote against the clause, and thus retain section 38d.
– I hope that the committee will not retain section 38d. There is other power in the act to deal with organizations that commit breaches of awards.
– Where is that power?
– In sections 25, 44 and 49. The punishment provided in section 38d is altogether too drastic, and I do not for the moment remember any case in which it has been inflicted.
– It was inflicted in the case of the .Timber Workers Union:
– I had forgotten that case, but if a body of men rebel against an award, and even if the leaders of the “particular organization join in the rebellion, I do not think that the door to a possible settlement should be closed against those men who are anxious to return to work. We have heard honorable senators say that the majority of unionists have no desire to cease work. That being so, the penalty provided in -section 38d inflicts a hardship on them, whereas we ought to give every encouragement to any effort that can be made to break down the barriers that prevent men from returning to the work they are anxious to get. It would be a good gesture to men whom honorable senators opposite regard as the more amenable type of trade unionists, if we could say to them that the conditions of employment under the award are still open to them, although they may have gone on strike, and although their leaders may be liable to prosecution, as well as those who persist m breaking the State laws against violence. The mere fact that shearers, for instance, may rebel against an award does not justify the court in declaring that there should be a cancellation, if the award is still considered by the court to be a just one. Why should the court suspend an award which contains the best conditions it has been able to prescribe? Is any advantage to be gained by punishing any person or organization? One might feel inclined to punish persons for creating industrial trouble.
– The fact that men are not at work punishes the employers.
– I admit it, and, probably, the employees are just as heavily punished by being away from work. But that is not the point; the point is whether it is sensible or practical to cancel an award in the case of a strike. A provision of this character is valueless, unless its effect is punitive. The only punishment it inflicts is the cancella tion of an award, thus removing the very incentive that the employees have to return to work. When, an award is cancelled, what is there for the workers to fight for? What is the use of their trying to overthrow these barriers which honorable senators opposite suggest the extremists set up to prevent the moderate trade, unionists from returning to work? I cannot see the necessity for retaining section 38d. Its removal would be, as I say, a gesture in favour of those whom honorable senators opposite say they have every desire to favour.
– I hope that the Senate will not permit the elimination of section 38d. We have already agreed to the removal of the penal provisions of the act in regard to strikes and lockouts, and now Senator Daly would have us remove the only remaining provision of the act which compels the members of an organization to recognize that if they do not obey an award they must forfeit something. The section provides that if an award is disobeyed it can be cancelled, and the workers lose all the benefits it gives to them. It is the greatest safeguard those workers who wish to continue their work could have. Its removal would handicap those who are always prepared to loyally abide by awards, but who are often intimidated to such a degree that they are compelled to go out on strike with others.
. -Does not Senator Daly, with his long legal experience, realize that courts must have some power to protect themselves against those who defy their decisions? The Arbitration Court has no power except to punish those who break the law.
– If an award is cancelled the law no longer exists.
– It is unnecessary to cancel the whole of an award. Judges have been very reluctant to deregister a union or suspend an award. In the minds of the public they, at times, have been very tardy in taking either step. They have always been anxious to keep the unions within the court so that peace in industry might be secured. The object of punishment is to keep wrongdoers in order. The same thing is true in arbitration legislation. If this deterrent is withdrawn, the extremists in the community will feel free to continue their nefarious practices. I should like to see a movement by the moderate section of trade unionists in the direction of getting their members to obey awards of the court. In the past they have, unfortunately, been too reluctant to deal with the extremists in their midst. When a strike occurs which dislocates industry throughout the Commonwealth, a judge should have power to suspend the award and deregister the offending union. If the award were cancelled, employers would be free to re-establish peace in industry under the ordinary laws of the country. I do not want to get back to the conditions that existed in pre-arbitration days; but if the unions will not obey awards, the employers should not be bound by them.
– An award may contain a provision for preference to unionists. If the award remained, an employer could not employ non-unionists, and as the members of the union would be on strike, he would be forced to close his works.
– I trust that the Senate will take a firm stand in this matter. The court should be able to enforce obedience to its awards; the people should be taught to respect the law. Organizations which obey awards have nothing to fear from the existing legislation. Anything which tends to deter men from breaking the law should be encouraged.
Senator Sir HAL COLEBATCH (Western Australia) [12.18]. - A difficulty in retaining the section arises, because we have already struck out the definition of “ strikes “ and lockouts.”
– I gave an undertaking yesterday that the bill would be recommitted to make any consequential amendments found necessary.
Senator Sir HAL COLEBATCH.Awards are in the nature of bargains. If one party to a bargain does not carry out his undertaking, the other party should not be bound by the terms of the bargain. If one side insists on being free, it is only fair that the bargain should be cancelled. I cannot help thinking that the Government has the idea that, if it strikes out the definition of “ strikes “ and “ lockouts,” there will be no more strikes or lockouts. The mere’ striking out of a definition will not prevent strikes or lockouts. Are we to be satisfied with merely telling the country that we have placed on the statute-book a measure with “ peace “ and “ conciliation “ written all over it ? I am reminded, of the words of Charles Lever -
For ‘tis the Capital o’ the finest nation,
Wid charmin’ pisintry upon a fruitful sod,
Kightin’ like devils for conciliation,
An’ hatin’ each other for the love of God.
We shall have strikes or lockouts whether the definition remains or is struck out.
– I agree with the honorable senator.
– I submit that if a bargain is made, and one party will not stick to it, the other party should be relieved of his obligations.
– I am pleased at the remarks of Senator Colebatch for they indicate that at last we are becoming honest with ourselves. I have said all along that we Cannot prevent strikes and lockouts by legislative action. The only thing we can do is to try to introduce a system which will minimize them. I agree with Senator Colebatch that an arbitration award is in the nature of a bargain, and that a bargain once entered into should be kept by both parties. Arbitration is, however, a three-cornered bargain; it affects the employer, the employee and the general community.
– The community gets squeezed between the other two parties.
– Should an award be cancelled, two of the parties to the contract are allowed to run riot, with possible injury to the third party. Honorable senators will admit that if an award is cancelled no party to the contract can be prosecuted for a breach of that award. The truth of that statement remains whether an award affects the whole Commonwealth, a State, or only a section of the people of a State. Let us suppose that a number of workers at Marree go on strike, and that as a result the court decides to cancel the award so far as it applies to them. Those men, although on strike, could not be prosecuted under any Federal or State law.
– But the cancellation of the award would enable the employer to engage other men to take their place so that he could carry on.
– If an employer desires to conduct his industry with nonunion labour, he can do so, even if the award is not cancelled. He is not bound by the award if he engages non-union labour. There is no need to labour this point, because it was made very evident during the recent trouble on the waterfront. The waterside workers’ award was not cancelled, yet the employers engaged non-union labour.
– The award was suspended.
– The award was not cancelled, although certain provisions of it were suspended.
– Does the honorable senator know of any instance of an employer engaging non-union labour and paying less than award rates? I know of no such instance.
– I know of many such instances. It is not surprising that the honorable senator has come across no instances of this nature. He has been a member of this Parliament for a number of years, and parliamentary life has made him somewhat of a recluse. I have been in this Parliament only a few months, and have not yet become a recluse. When the honorable senator again moves in the world of men outside, he will find many such cases. Senator Guthrie admitted that on one occasion when he thought that he was employing non-union labour, he did not pay them award rates.
– I paid them more than award rates.
– Personally, I do not think that the provision itself matters very much; but I do not like the possibility of awards being cancelled. In the present trouble in the pastoral industry, the shearers, because of the strength of their organization, would be better off if the award were cancelled. But it’s mere existence prevents the trouble from spreading. This particular provision gives a judge the right to cancel an award, and thus leave matters to be settled according to “ Rafferty’s “ rules. I ask the Senate to stand by law and order, and allow awards to remain sacrosanct. Even if we enact a law against strikes and lockouts, that law is not abolished because a strike or lockout takes place. Honorable senators opposite say that awards should /be cancelled when not obeyed.
– Surely the honorable senator admits that the section in the present act will act as a deterrent.
– Senator Barnes informed us yesterday that on one occasion he was fined £100, and told that ifhe again appeared in the court on a similar charge he would get six months’ imprisonment without the option of a fine. If he had been of a religious turn of mind, he would no doubt have prayed for the cancellation of the award before he again appeared in the court. Seeing that all honorable senators are of the opinion that awards should be obeyed, I take it that they agree that awards in themselves are not necessarily wrong. In that case, why cancel or suspend them ? The awards contain provisions for the punishment of those who break them. There is, moreover, State legislation in respect of strikes and lockouts. I urge the Senate to allow the awards to remain with the imprimatur of the court on them. Their retention will encourage men to return to work.
– I am afraid that the Minister is not very enthusiastic in his own cause.
– It is very difficult to be enthusiastic in the atmosphere which pervades this chamber.
– The honorable gentleman said that it really mattered little whether the section were retained or rejected. It must be obvious to the Minister that it will act as a deterrent in the case of the moderate section of unionists. He has admitted that it is the militant section which causes the most trouble.
– The section plavs right into their hands.
– Surely the possibility of an award being cancelled must have its influence on men who contemplate going on strike. Without that deterrent, they will be more likely to take the risk of striking. In the Bass Strait shipping service there was a strike almost every Christmas. The members of the union now realize that the Commonwealth Government could take over the ships and, by utilizing volunteer labour, maintain the service. The effect of this provision has been that there has not been a strike in that service since it was introduced. The fact that an award may be cancelled has had a restraining influence upon the men. The deletion of this provision will be an inducement to men to go on strike knowing that if they cannot achieve their ends they can return to work under the old conditions.
– The extraordinary reasoning advanced by honorable senators’ opposite in support of the retention of this section reminds me of the old schoolboy classic of “ Cutting off one’s nose to spite one’s face. “ Ever since laws have been enacted for the peace, order and good government of the people of Australia they have been broken. The law relating to assault is broken every day in the week; but it is not repealed because it is not observed by every citizen. Practically all’ other laws are treated with the same contempt by a minority in this community. Honorable senators opposite wish to place the great majority of industrialists in Australia in the position that all law-abiding citizens in this country would occupy if all laws were abolished because a few fail to observe them. Senator Reid, who is in favour of the retention of this section, said that in Queensland they repeatedly had the spectacle of a great majority of the workers loyally obeying the awards of the court, although in two places which he mentioned members of branches of an organization consistently disregarded them. The honorable senator, and those with whom he is associated, argue that, because a minority fail to obey the awards of the Arbitration Court, the awards should be cancelled. If that were done, it would remove the last prospect the majority have of overcoming the militant minority which go on strike. When once an award is cancelled, there is no incentive to the moderates to obtain control. The retention of an award is their only hope. Their only alternative would be to join with the minority and cause a general industrial upheaval. Is that what they desire? We have heard a good deal about industrial peace, but if effect were given to the wishes of honorable senators opposite it would be more difficult of achievement than ever.
– Does the honorable senator suggest that an award should never be cancelled?
– A just award should not ‘be cancelled, because there are ample means of punishing men who do not observe it.
– Should an award be disobeyed?
– No ; but I do not claim that human nature is ever likely to be so perfect that all the laws of the country will be obeyed. All this Parliament can do is to legislate. Our aim should be to assist citizens under the civil law, or workers operating under our industrial laws, by making laws which can be obeyed. If we are to encourage courts to cancel awards in an attempt to punish certain individuals who may refuse to obey them chaos will reign in industry and the goal of industrial peace will be difficult to reach.
– From the utterances of Senator O’Halloran, I am afraid that he is not familiar with the amendment under consideration, or is quite unintentionally misleading the committee. The honorable senator suggests that this section should be repealed, although section 38, which is much wider in its application, is to be retained. If awards of the court are sacrosanct to the Government, the court should not have power to vary, suspend, or cancel awards. We are anxious to retain a provision similar in its application to a section in the act. Paragraph d of section 38 reads -
The court shall, as regards every industrial dispute, of which it has cognizance, have power-
to impose penalties … for any breach or non-observance of any term of an order or award proved to the satisfaction of the court to have been committed.
– When has the section under consideration been effective?
– There was a partial suspension in connexion with the waterside workers’ case. There is a further safeguard, which provides the right to apply for the cancellation or suspension, partial or otherwise, of an award. Power is already given to the court under section 38, on its own motion, to set aside or vary an award. This section enables action to be taken in the direction already provided for in the act. I do not see why there should be any opposition to the retention of the section.
– Why duplicate it?
– Because in one instance it is left to the court, and in the other the parties to the award have an opportunity to move the court. It is rather extraordinary that the Minister should oppose the retention of the section, as the court has to decide the matter. It is seldom that the power is exercised. Those who obtain these awards, sometimes at great expense, regard such a provision as beneficial to their organization, and although it is unusual to suspend an award, such a provision necessarily has a restraining effect upon an organization.
– If this section is deleted, we shall be removing the only protection which the moderates, who are always anxious to obey an award of the court, possess. The Minister said that he believed that workers should obey an award of the court; but we know from experience that the extremists who have caused most of the trouble have prevented the moderates from continuing work. Every effort should be made to prevent their being brow-beaten by the minority, who have caused most of the trouble. The retention of this section will assist the moderate section of trade unionists.
Sitting suspended from 12.45 to 2.15 p.m.
.- I direct the attention of Senator O’Halloran to sub-section 3 which provides that the order of suspension or cancellation may be limited to persons named therein, to classes of’ persons, to any branch of the organization, or particular localities. All that we are asking is that those who break the law shall be punished in accordance with the law. ‘
Question - That clause 33 stand as printed - put. The committee divided. (Chairman - Senator W. Plain.)
Question so resolved in the negative.
Clause 34 agreed to.
Clause 35 -
Section forty of the principal act is amended -
by omitting from sub-section (1.) the words “by its “ and inserting in their stead the words “or a Conciliation Commissioner by its or his “;
by omitting from paragraph (a) of sub-section ( 1 . ) the words “ other things being equal “ ;
Section proposed to be amended -
– (1.) The court, by its award, or by order made on the application of any organization or person bound by the award; may -
direct that, as between members of organisations of employers or employees and other persons (not being sons or daughters of employers) offering or desiring service or employment at the same time, preference shall, in such manner as is specified in the award or order, be given to such members, other things being equal; and . . .
Senator Sir GEORGE PEARCE (Western Australia) [2.20]. - This clause amends section 40, which gives power to grant the minimum wage and preference to members of organizations. The section provides that the court may, by its award or by an order made on the application of any organization or person, direct that as between members of organizations of employers or employees offering or desiring service, preference shall be given in such manner as is specified to members of such organizations, other things being equal. Under paragraph b it is proposed to omit the words “other things being equal.” This question of preference to unionists was thoroughly debated on the motion for the second reading of the bill. I do not propose to repeat now what I said then. I shall content myself by moving -
That paragraph . ( B ) be left out.
.2.23]. - I do not intend to speak at any length on this clause, because, as the right honorable the Leader of the Opposition has pointed out, we had a full debate upon it during the second-reading stage. But perhaps it is desirable that I should make one or two observations. Honorable senators opposite have assured us that they are anxious to so improve the conditions of industry as to minimize the possibility of industrial unrest. I know of no provision that is more calculated to meet their wishes in this respect than the clause now under discussion. It is freely admitted that there is no objection to men joining trade unions, and no serious objection is offered to preference being given to members of such organizations provided they abide by the terms of an award. The striking out of the words “ other things being equal “ will impose a heavier duty on the court than at present, because the court will grant preference only if it feels absolutely certain that the terms of an award will be obeyed. It should be remembered also that a court which grants preference may also withhold it. If honorable senators opposite wish to put trade unionism on its trial they should pass the clause as it stands.
– I am a keen supporter of the principle of preference to trade unionists. I therefore hope that the clause will be passed in the interests of industrial peace. But honorable senators opposite have made up their minds. To them preference to unionists is something in the nature of a bugbear. Senator Payne does not believe in preference to any kind of unionism. Indeed, he does not believe in unionism.
– Yes I do.
– The honorable senator does not, but at all events he is honest. I appeal to the former veterans in the Labour movement - Senator Pearce and Senator Reid. When I was a boy these senators were looked upon as stalwarts in the ranks of Labour. They were regular attendants at those Labour conventions which laid the foundations for the temple of Labour as we know it to-day. This principle of preference to unionists’ has been a prominent plank in the platform since 1905. Senator Reid had left the Labour movement in Queensland long before 1916, when the split occurred in the ranks of Labour over the conscription issue; but the right honorable the Leader of the Opposition was a strong advocate of preference until 1916. Senators Glasgow, Cooper, Guthrie, and Thompson are associated with the pastoral industry in Queensland. If they contemplated having a homestead built or other buildings erected on their properties they would engage carpenters, and I have no doubt they would give preference to applicants who could produce the pencecards of their trade union organization, because they’, would regard the union card as a guarantee that the trade unionists concerned were efficient workmen. To-day, because of some quarrel with the movement, Senator Pearce once a staunch protagonist of Labour, now finds himself unable to support a principle that previously had his whole-hearted approval. It is interesting to recall that at the third Commonwealth Political Labour Conference, held in 1905, Senator Sir George Pearce was a prominent Western Australian representative, associated with Senator De Largie, Senator Henderson and Mr. W. H. Carpenter, M.H.R. All of those gentlemen stood for the fighting platform of the Labour party in its entirety, one of its planks being in favour of an amendment of the Commonwealth Arbitration Act to provide for preference to unionists. I regret that at this late hour they should be opposed to that principle. We are coming to- a sorry pass when, simply because a man is a unionist, he is to be penalized when seeking a job. Any of the great manufacturers will tell one, in private conversation, that they are at nil times prepared to give preference to the man who carries a trade union ticket.
– This amendment will not take preference out of the act.
– It. is my desire that the preference clause shall be retained to trade unionists for all time.
.- J wish to contradict the statement made by Senator Daly that I am opposed to unionists. I am not. The retention of the words “ other things being equal “ cannot interfere with the employment of trade unionists ; it will merely ensure that trade unionists are efficient. Those words were incorporated in the act in order to provide that, if trade unionists offering for a job were inefficient and efficient non-union labour was available the employer would have the opportunity to make his choice. I desire to see the provision retained.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 36 to 40 agreed to.
Clause 41 -
Section forty-nine a of the principal act is amended by omitting the word “ six “ and inserting in its stead the wogfl “ twelve “.
Senator Sir GEORGE PEARCE (Western Australia) [2.35.] - I ask the committee not to agree to this clause. It amends section 49a of the principal act which reads -
An employee entitled to the benefit of an award may at any time within six months from any payment by way of wages in accordance with the award becoming due to him, but not later, sue for the same in any court of competent jurisdiction.
The object of the Government is to alter that to twelve months.
– Which would be consistent with State laws already in operation.
Senator Sir GEORGE PEARCE.The provision has been in operation for many years, and I know of no case of resultant hardship. If a man sleeps on his rights and fails to assert them within six months, he does not deserve to enjoy the privilege. I shall vote against theclause.
– When the term six months was inserted in the award there did not. then exist the provision that is now contained in awards specifying compulsory notification on the part of an employee that he is a member of an industrial organization; consequently there may have been a very strong argument in favour of the period of six months. Honorable senators will realize from the debate that has already taken place, that a man must make that compulsory notification before he is entitled to any payment under his award, so that the employer knows from the outset the liability attaching to him. Realizing also that a man is entitled to claim for an ordinary debt, in a court of jurisdiction under the common law, over as long a period of six years is it asking too much of this committee to give to the employee the right to claim within a period of twelve months? The provision of six months was inserted in the State legislation, but honorable senators will find that the South Australian law now provides that a claim may be made before a court of summary jurisdiction at any time within twelve months. Seeing that an employer has no chance of being mulct, because of the existence of some hidden claim, it would not matter whether we struck out the time limit altogether. I can understand the necessity for care in a case where a man might go on innocently believing that he was not liable to pay other than the amount that he was, in effect, paying. But where a man knows from the beginning what his liability is. and that it continues during the whole period of the employment, it is but reasonable to ask honorable senators to bring this legislation into line with that which operates in the States, and extend the term to twelve months. I hope that the committee will not reject the clause.
Question - That clause 41 stand as printed - put. The -committee divided. (Chairman - Senator Plain.)
Ayes . . . . 6
Noes . . . . . . 18
Majority . . 12
Question so resolved in the negative.
Clause 42 agreed to.
Sections fifty-six a to fifty-sixG (both inclusive) of the principal act are repealed.
Senator Sir GEORGE PEARCE (Western Australia) [2.43].- I shall not traverse the debate that took place on the second reading. This clause repeals the provision in the principal act for the taking of a secret ballot. I desire to have an opportunity to vote against that repeal, and ask the committee to divide upon the clause.
– It is obvious from what has just happened that it is no use debating the clause. Honorable senators opposite have set their minds against it and, apparently, it, is to be negatived.
– I am sorry that Senator Daly is becoming querulous in regard to this bill. I view the clause dispassionately. I suggest that if the machinery provisions for obtaining a secret ballot are troublesome and objectionable, the honorable senator should consider introducing an amendment to the committee on the lines adopted in section 56d of the principal act, or some of the provisions which enable the court to make an order in a proper case. It should, of course, be hedged round with safeguards, so that it would not be based on the understanding that it is right that ten members of an organization, concerning whom the Assistant Minister, Senator Barnes, made some observations last evening, may cause trouble. That the secret ballot in this connexion can be of utility was shown some years ago, when its application was attended with very good results. The ballot taken among the New South Wales railway employees the other day was likewise attended with excellent results from the point of view of the community and of industrial peace. It is quite a mistaken attitude for the Government to take up that there is no good in these secret ballot provisions. I urge the Minister to reconsider the clause and submit something to the committee, which, while perhaps less cumbersome, would be equally beneficial. He could take section 56d as a starting point with the maintenance of the provisions for the enforcement of a ballot by the court. But to cut out the whole of the provisions relating to secret ballots, it seems to me, would be a rash step to take; it would not be in the interests of the maintenance of industrial peace, and certainly would not improve control of unions by the rank and file. If the Minister cannot agree to my suggestion, I must vote against the clause.
– I shall vote for the retention of the secret ballot provisions. On the second reading I explained why I proposed to do so and mentioned the concrete cases cited by Senator Hoare in favour of holding secret ballots.
– I join with Senator McLachlan in suggesting that the matter be further postponed, with a view to making the conditions of the secret ballot provisions of the act less irksome than they are at present to honorable senators opposite. I believe in the secret ballot, but as I said on the second reading, under present conditions, the provisions in the act are perfectly futile. I urge the Leader of the Government in the Senate to agree to the postponement of the clause, with a view to his bringing down a proposal which would be acceptable to his own side as well as to honorable’ senators of the Opposition.
– I have already made it clear to honorable senators that the Government feels that the secret ballot provisions of the act have been tried and found wanting. All the ingenuity that could be called in aid by honorable senators opposite, when they were in power, have again been called in aid, and I can conceive of no better provisions for taking of secret ballots than those already contained in the act ; but the Government considers them an unwarranted ‘‘trespass upon the rights of members of trade unions. At times, there may be justification for trespassing upon the rights of individuals or organizations, but Parliament should not trespass upon those rights unless it is satisfied that some good can be achieved by doing so.
– But the organizations already have secret ballot rules in their constitutions.
– Every organization of which I have any knowledge has in its rules provisions for the holding of secret ballots. But honorable senators will realize that the provisions in the act were inserted mainly for the purpose of preventing strikes. I am not going to deny that they also give opportunity for an expression of opinion, but all the secret ballots one cares to take will not prevent a strike if a number of men decide upon striking. In connexion with the ballot which was ordered some months ago, a ballot box was burnt along with an effigy of the arbitration judge. It brings the nation into ridicule when an attempt is made to enforce laws which are not enforcible. For years, we in Australia have been making ourselves believe we are what we are not; we have been spending money we did not have; we have been living as we should not live, and we have been legislating as we know we ought not to legislate. These provisions were inserted in the act while we were living in that atmosphere of hypocrisy. We are now living in different times when we must face the facts. We must be honest with ourselves and not pass legislation which we know in our hearts we cannot put into effect. I say to honorable senators in the words of Shakespeare -
To thine ownself he true.
It may be all very well for a Prime Minister or some other person to go to Great Britain and tell the people there that, we have a great country, and that we have these provisions for secret ballots, when we know that they are absolutely impracticable and absurd; but the Government has no desire to perpetuate this joke on the community.
– Does the honorable senator ignore the suggestion made by Senator McLachlan?
– The Government is of opinion that all the provisions relating to secret ballots should be removed from the act, and I cannot accept any amendment.
Question - That clause 43 stand as printed - put. The committee divided. (Chairman - Senator Plain.)
Majority . . 14
Question so resolved in the negative.
Section 58b of the principal act is repealed.
Section proposed to be amended - 58b. The rules of an organisation registered under this act and the officials of such organization shall not during the currency of an award in the industry concerned prevent or impede any members of such organization from entering into loritten agreements in accordance with such award.
Senator Sir GEORGE PEARCE (Western Australia) [2.57]. - I move -
That the word “ repealed “ be left out with a view to insert in lieu thereof the words, “ amended by omitting the words ‘ and the officials of such organization ‘ “.
If this amendment is carried, I shall ask the committee to agree to the insertion of a new clause 44a, the object of which will be to deal with officers of organizations who discourage members of a union from entering into written agreements in accordance with an award.
– The rules of an organization cannot be registered until they are submitted to the Registrar and he is satisfied that they contain nothing contrary to public policy. A hyper-sensitive legislature at one time conceived the idea of depriving an organization of the power it possessed over its members to prevent them from entering into written agreements in accordance with an award, but, like the secret ballot provisions the provision is worth nothing. It means nothing more than that the rules of an organization shall not contain something which will prevent it from entering into a written agreement in accordance with an award. If any such rule appeared, it would be disallowed by the Registrar. He is directed not to register any rule which would have certain consequences.
– A very necessary provision.
– It may be necessary at times; but it is that kind of irritation which frequently causes trouble. I have frequently heard honorable senators opposite contend that we should not put irritating provisions into legislation.
– I remind the Senate of the trouble caused by the local rules of the Waterside Workers Federation.
– If the Registrar is incompetent, he should be dismissed. A registrar may not register a rule which is contrary to public policy. Any rule which would prevent men from entering into lawful contracts would, . be contrary to public policy, and, therefore, would not be accepted by the Registrar.
– We should make clear the intention of Parliament in this matter.
– As this matter is now before Parliament, I suggest that we should give expression to something which will not demonstrate to the world that we do not know what the functions of Parliament are. It is not the function of Parliament to tell the Registrar that he may register an organization only if its rules comply with certain requirements - one of which is that such rules shall not be contrary to public policy - and then immediately insert another provision which, if it means anything at all, means something affecting public policy. I realize that if a majority of honorable senators favour such a provision I can do no more than object; but I desire to place on record my objection, as a member of the Government, to a provision which, in my opinion, is being inserted merely to placate the members of the Employers Federation.
Question - That the words proposed to be left out (Senator Pearce’s amendment), be left out - put. The committee divided. (Chairman - Senator Plain).
Majority . . 14
Question so resolved in the affirmative.
Amendment agreed to.
Clause, as amended, agreed to.
New clause 44a.
Senator Sir GEORGE PEARCE (Western Australia) [3.8.] - I move -
That the following new clause be inserted: - “44a. After section fifty-eight b of the principal act the following section is inserted: - 58b a. No officer of. an organization, or member of any committee thereof, or servant or agent thereof, shall,’ during the currency of an award in the industry concerned, advise, encourage or incite any member of such organization to refrain from -
Penalty : Twenty pounds.’ “
Wo have already abolished the provision for penalties in respect of strikes and lockouts; but it would be a mockery for us to allow the union to obtain an award and then immediately, through its officers, agents or committees, attempt to nullify that award by advising its members not. to comply with it. Either we have arbitration or no arbitration. No arbitration system can exist without trade unions. In a sense, the officials of the trade unions are the machinery by which arbitration can work. It is surely the most arrant humbug to say that we shall have a system which allows trade unions, or their officials, to take a case to the court and immediately an award is given to engage in active propaganda against that award by inciting their members not to accept employment under it. The object of this new clause is to make it an offence so to incite the members of an organization. There is need for it, seeing that we have abolished the penalties for strikes and lockouts.
– I hope that the committee will not agree to this new clause. I again appeal to honorable senators to be consistent, even in their desire to defeat this rneasure. As has been pointed out by the right honorable the Leader of the Opposition . (Senator Pearce) the committee has already decided to abolish the penalties relating to strikes and lockouts. That was done because the committee knew that in every State there is ample provision for the prosecution of men who offend against the law by going on strike. In all legislation relating to this particular subject there is a provision that any person who encourages, incites, or otherwise counsels or procures the commission of an offence shall be guilty of an offence, and shall be punishable accordingly. Just as the committee has decided to vacate that field, the Opposition, merely in order to show its power, proposes to insert this new clause, which is only a palliative to keep quiet some person or persons who might rebel against the deletion of the penalty provisions of the existing legislation. I realize that we on this side are a helpless, but well-meaning minority. If the majority of honorable senators desire to take this action, then they must accept the responsibility. I appeal to honorable senators, if they have not already made up their minds, to reflect on what they have already done, and their reasons for having done it. They have decided to withdraw from the field of penal legislation ; but they are now asked to agree to the insertion of a new clause, the necessity for which is said to be that very withdrawal. The insertion of this new clause will mean conflicting jurisdiction. I can only express my regret that the numbers on this side are so few that we cannot successfully resist this provision.
Question - That the new clause proposed to be inserted be so inserted - put. The committee divided. (Chairman - Senator Plain.)
Majority . . 14
Question so resolved in the affirmative.
Proposed new clause agreed to.
Clause 45 -
Section sixty of the principal act is amended -
by omitting from paragraph (h) of sub-section (1.) the word “ or “ ( last occurring ) ; and
by omitting from that sub-section paragraphs (t), (j), (k) and (j).
Section proposed to be amended - 60. (1.) . // it appears to the court on the application of any organisation or person- interested or of the Registrar -
that the proper authority of an organisation or branch of an organization has neglected to eajeroise its powers over its members or branches doing anything in thenature of a lockout or strike, or committing any nonobservance or breach of any order or award; or
that an organisation or branch of an organisation has made or given any domestic rule or order or direction contrary to the terms of an order or aboard, or requiring or instructing or advising the members, or any of them, to refuse to offer or accept employment in accordance with anorder or award, or that its members or a substantial number of them observe any informal understanding contrary to any law or award; or
that the members or a substantial number of themembers of an organisation or branch have repeatedly or systematically committed offences against this act, or failed to comply with an order or award : or (/) that the organisation or branch has not altered its rules us required by sub-section (4.) of section fifty-five of this act, the court may, if in its discretion it thinks fit, order the registration of the organization to be cancelled, and thereupon it shall be concelledaccordingly.
Senator Sir GEORGE FEAECE (Western Australia) [3.15]. - This clause, which amends section 60 of the principal act, relates to the cancellation of the registration of organizations and contains a number of grounds on which registration may be cancelled. These reasons are embodied in paragraphs i, j, k andl, which the committee is asked to omit. I suggest for the consideration of the Minister that we should delete paragraph i and retain paragraphs j, k and I. Paragraph i reads -
If it appears to the court, on the application of any organization or person interested or of the Registrar -
that the proper authority of an organization or branch of an organization has neglected to exercise its powers over its members or branches doing anything in the nature of a lockout or strike or committing any non-observance or breach of any order or award; . . .
As the penalties with respect to strikes and lockouts have been deleted paragraph i can reasonably be omitted. Paragraphs j, k, and I read that if it appears -
that an organization or branch ofan organization has made or given any domestic rule or order or direction contrary to the terms of an order or an award, or requiring or instructing or advising the members, or any of them to refuse to offer or accept employment in accordance with an order or an award, or that its members or a substantial number of them observe any informal understanding contrary to any law or award; or
that the members or a substantial number of the members of an organization or branch have repeatedly or systematically committed offences against this act or failed to comply with an order or award; or
that the organization or branchhas not altered its rules as required by sub-section (4) of section 55 of this act, registration may be cancelled. If an organization refuses to alter its rules as required by the law the court should have power to de-register it.
Senator Sir GEORGE PEARCE.That is the object of framing them. Sometimes a unionist, in obeying an award, breaks a domestic rule. Only a few weeks ago Senator Ogden told us of a case in Hobart in which certain members of a trade union organization were ordered by the branch secretary, under a domestic rule, to act contrary to an award. Those who did so were fined. They informed the magistrate that if they disobeyed the branch officer they would be fined by the union, and if they obeyed him they would be fined by the court.
Senator Sir GEORGE PEARCE.That imposed by the court, which I think was £2 and costs. The magistrate commented upon the disgraceful nature of this practice. If an organization is to act in that way the court ought to have the power to de-register it. In these circumstances I ask the Minister to retain these paragraphs. Arbitration court judges do not de-register unions without very careful consideration. In the case of the Seamens Union the court hesitated for months before deciding to take such drastic action. When members of an organization have repeatedly or systematically committed offences against the act, or have failed to comply with an order or award of the court, there should be power to cancel the award. To test the feeling of the committee I move -
That the letters and word “ j,k and I,” paragraphb, be left out.
– I appeal to honorable senators to consider this matter from a viewpoint which I am sure will appeal to them. When an organization is registered under this statute it is in law similar to a registered company. It has a common seal, and is entitled to hold property. Is it the practice under British law to deregister a company when the members of boards of directors make a mistake? If honorable senators will refer to the original sub-section they will see that it was only when an organization ceased to function as a property-holder that it could be deregistered, with the exception that if the court for “ any reasons “ the court thought fit it might cancel registration. Some ingenious person then came along and drafted this section, in the belief that it was in the interests of those who at that time were returned to Par liament on the false cry of law and order, and who were determined to carry into effect a supposed mandate from the people.
– Why “ supposed”?
– I was charitable enough to put it in that way. The position is that Parliament deliberately inserted in this provision something which contravenes the principles of British justice, for which Senator Colebatch recently made a strong appeal. I ask honorable senators opposite, some of whom have had extensive experience in company matters, to consider the position of a registered company which consists of something apart from shareholders or directors. Does the committee wish the court to continue to have the right to deregister organizations, destroy their character, and the right to hold property, and to bring about a state of chaos through something which may have happened by the action of men whose minds were temporarily inflamed?
– Deregistration would not destroy its right to hold property.
– Who would be the holder of it?
– Who is the holder now?
– The holder now is the legal personality created by this statute.
– Under the trade union acts of the States.
– The right honorable the Leader of the Opposition should be sure of his facts before he makes a statement about that matter. A federal organization does not hold its property under the trade union legislation of the States. The Australian Workers Union and the Waterside Workers Federation are in this position. The latter holds property under this act.
– The Seamens Union did not lose its property when it was de-registered.
– No ; but immediately that organization was de-registered it was impossible for any member of it to enforce his individual rights in that property. If the shareholder of a company has any claim against the company he can sue it; but if the company goes into liquidation or if, by some other means, its entity is destroyed, it cannot be sued. Honorable senators opposite, in objecting to the repeal of the sub-sections affected by this clause, desire to perpetuate a manifest injustice, as judged by the recognized standard of British justice. Last night I listened to an eloquent appeal to the committee to reject the Government’s proposals because, so it was alleged, they would strike at the very foundations of British justice. The sub-sections of the principal act, which it is now sought to repeal, discriminate in an iniquitous manner between persons and organizations. There is sufficient power under existing statutes to punish offenders against the law. Why should the Australian Workers Union, the largest industrial organization in Australia, embracing members following many avocations and working under many awards, be penalized as an organization because 20 or 30 of its members refuse to obey the awards of the court?
– We are not proposing to do that.
– Perhaps not, but it is cowardly to ask the judges of the Arbitration Court to do what the legislature itself has not the courage to do. If Parliament believes that this is the proper course, let Parliament take full responsibility for it.
– This has been the law for years.
– The right honorable senator knows that it has not. This is the first time that a Labour government has been in power for many years. This legislation is designed to give trade union organizations the same status as any other company. There should be no discrimination against industrial organizations constituted under statute. The provisions which it is sought to repeal relate mainly to offences that may be committed when the minds of members of an organization are inflamed during industrial disturbances; and as I have pointed out on previous occasions there is power in existing statutes to deal with them. It is iniquitous that in such circumstances there should be the possibility of cancellation of regulations with consequent loss of property. It is not equitable to destroy a legal entity simply because certain of its members or, for that matter, the leaders or directors have committed breaches of the law.
.- One cannot but admire the earnestness of the Leader of the Senate in his desire to secure the passage of his bill. But I am afraid that he has over-reached himself. He appears to be entirely ignorant of the motive which actuate those honorable senators who intend to support the amendment of the right honorable the Leader of the Opposition.
Motion (by Senator Daly) agreed to -
That the Senate at its rising adjourn until Tuesday next at 11 a.m.
Motion (by Senator Daly) proposed -
That the Senate do now adjourn.
– There is one matter which I desire to bring under the notice of the Leader of the Senate. I have been besieged by inquirers for loose copies of the Estimctcs and budget papers. I understood they were to be made available to-day, butI have not been supplied with copies.
– They have been made available. I will see that the honorable senator is supplied.
Question resolved in the affirmative.
Senate adjourned 3.43 p.m.
Cite as: Australia, Senate, Debates, 25 July 1930, viewed 22 October 2017, <http://historichansard.net/senate/1930/19300725_senate_12_126/>.