18th Parliament · 1st Session
The President (Senator the Hon.. Gordon Brown) took the chair at 3 p.m. and read prayers.
– Can the Minister for Supply and Shipping saywhen primary producers may expect supplies of galvanized wire, wire netting and iron? Are supplies of these materials available at New South Wales ports, and if so, can arrangements he made to ship some.urgently to Victoria?
– The honorablesenator suggests that there are stocks of these materials available at New South Wales ports and that they cannot beshipped to other States because of transport difficulties. This matter was raised in the Senate repeatedly by the Opposition prior to the last elections. Immediately after the last period of the present session of Parliament, I had 150 waterside workers brought from Brisbane, where things were slack, to Newcastle, and within three weeks the back-lag of cargo at that port had been cleared. There is a small back-lag at Newcastle at present, but that is a general condition in the absence of sufficient ships to provide an adequate service. The shippingtonnage available has to be used as economically as possible, and the endeavour of the Australian Shipping Board has always been to distribute cargo equitably. I assure the honorable senator that the Government is endeavouring tohavewhatever materials that are available especially those referred to by the honorable senator, . and building materialstransported as speedily as possible.
– On the 7th-
May, 1947, Senator Finlay asked thefollowing question: -
In the absence of the Postmaster-General,I ask the Leader of the Senate what progress- has been made by the Government with respect t>> the report presented by the Broadcasting Committee in relation to frequency modulation?
I have to inform the honorable senator that the report of the Broadcasting Com.mittee concerning frequency modulation has been the subject of a submission to Cabinet by me. Consideration is being r von by a sub-committee of Cabinet to all the questions raised in the submission concerning, riot only Frequency modulation, but also other matters. In due course, the policy of the Government on r 1, (,se matters will be announced by me.
Dispute IN Sydney
– Has a ship loaded with valuable cargo been held up in Sydney for more than two months because of a dispute 911 board the vessel? I’f so, what steps, if any, are toeing taken to get this ship to sea?
– I understand that a ship has been held up in Sydney owing to some dispute. Steps have been taken, and are still being taken, to have the vessel cleared.
– Owing to the great shortage of linen and cotton- goods in hospitals, will the Minister for Trade and. Customs explain what is being done to import some of these goods for this essential use?
– The Governmnent is making every endeavour to secure linen, cotton and rayon goods for the ^people of Australia. These commodities are in short supply all over the world. A mission has been sent to Japan with a view to purchasing these materials, but I” understand that so far it. has not -obtain any substantial quantities. I assure the honorable senator that the Government appreciates fully the serious shortage of cotton goods in this country, mid is doing every tiling possible to meet the situation.
– With further reference to the shortage of linen and cotton goods in hospitals, I have been assured that adequate supplies are obtainable in India. Will the Minister for Trade andCustoms investigate the position and ascertain whether that is a fact?
– I shall be very pleased if the honorable senator can supply me with the names and addresses of people in India who can supply these badly needed goods to Australia. I assure him that the Government is fully alive to the necessity for- obtaining these goods. Every effort will be made, to obtain them from India or from any other country in which supplies are. available.
– I shall have much pleasure in supplying the information for which the Minister has asked.
– Is the Minister for Trade and Customs aware of any unusual shortage of sugar in the Australian Capital Territory? Has the Minister received from the hotelkeepers of Canberra representations to the effect that, with the present ration, they are unable to meet the bare needs of the many persons who. for various reasons, visit the Australian Capital Territory?
– I have observed ar meal times that the sugar basins are not so full as they generally are. I do not know whether the shortage applies particularly to the Australian Capital Territory, because, due to various causes, including industrial dislocation and transport difficulties, sugar shortages have occurred in various parts of the Commonwealth. I am sure, however, that in ordinary circumstances, and in the absence of any further undue dislocation, supplies of sugar will be sufficient to meet the needs of the people.
– On the 1st May Senator Aylett asked whether any experiments have been undertaken in Australia to grow the type of linseed from which linseed oil is obtained.
The Minister for Commerce and Agriculture has advised that, in view of the insecure position of our linseed supplies from overseas, every encouragement is being given hy Commonwealth and State departments, to projects involving the local production of this oil crop. Experimental plantings on a commercial scale were inaugurated in collaboration with the New South Wale.? Government in 1045, with a promising variety of linseed developed by the New South Wales Department of Agriculture. Further efforts are being made in several States to . develop varieties suited to local conditions and all problems associated with the establishment of this new production are receiving close attention.
– In view of the great difficulties confronting Great Britain in connexion with its huge war debts, its serious shortage of foodstuffs, and its defence problems, will the Government give consideration to suggesting to the British Government the holding, at an early date, of an Imperial Conference in London, at which these problems could be discussed by representatives of all members of the Empire?
– I am not prepared to make any representations to the United Kingdom Government as suggested by the honorable senator. I am sure that the Government is capable of handling the problems of Great Britain, and I consider that it would be impertinent to make the suggestion indicated by the honorable senator.
– In view of the statement that the Postal Department has received applications for 80,000 telephone installations and that telephone equipment is in short supply, will the PostmasterGeneral assure me that Western Australia will receive a share of available equipment proportionate to that allocated to other States?
– I am able to give the assurance asked for by the honorable senator. I am also able to inform him that recently a conference of Deputy Directors of Posts and Telegraphs and other senior postal officials from each State made a thorough survey of the telephone situation. As a result, committees representing various tranches of the department have been set up in each State. They will thoroughly investigate the requirements of each State and, consistent with the availability of materials, will do everything possible to satisfy the demand for telephone installations. The department is now negotiating with the object of establishing additional factories and workshops in Australia so that it will not be dependent upon overseas sources for the supply of equipment. It hopes to be in a position soon to supply all ‘telephone requirements, including the equipment needed for automatic exchanges in country areas.
asked the PostmasterGeneral, upon notice -
– The answers to the honorable senator’s questions are as follows : -
– On the 8th May, Senator McLeay asked the following questions : -
I ask the Minister representing the Minister for Commerce and Agriculture what amount is still owing to the wheat-growers for 1045-46 season wheat that has been retained by the Australian Wheat Board on the Government’s instructions? What doe3 the Government propose to do in relation to. the 1940-47 crop? Does the Government propose to establish a long-range plan in view of the adverse vote in some States against the Government’s last wheat plan ?
The Minister for Commerce and Agriculture has now supplied the following information : -
– During the war many Australian manufacturers engaged, in the production of hand tools in order lo supply a need that could not be supplied from, overseas. “Will the Minister for. Trade and Customs give protection to those manufacturers by withholding licences for the- importation of hand tools that are being made in adequate quantities in Australia?
– The Government has a full appreciation of the work that was : done by- manufacturers in producing hand tools in Australia during thewar, when such equipment could not be obtained from abroad. As far as I can ascertain, the quality of Australian-made tools used in carpentering and othertrades is good. The policy of the Government is to give every encouragement to Australian industries in this regard.. Even if Australian-made tools were not up to the standard of those made overseas, I believe that, .with the improved technique which is being developed . in Australia, the quality could be. made as high as that of imported tools without difficulty.
– On the 19th March and on. the 7th May, SenatorGibson asked questions relating to British contract prices for. Australian meat.- The Minister for Commerce and Agriculture has now supplied the following information :- <-
Senb tor Courtice.
– As a pipe smoker, I ask the Minister for Trade and Customs whether, in view of the difficulty of obtaining satisfactory smoking pipes, in Australia, he willconsider granting licences for the importation of such pipes from Great Britain and France in order that we may obtain pipes of a good kind ? I am in sympathywith the idea of encouraging local production, but, until local manufacturers are put on their mettle by competition from overseas, I believe that we shall find that a rubbishy type of article will continue to be foisted upon us.
-It is difficult for. me to decide between the respective merits of local and imported pipes, be cause I am not a. pipe smoker nor do I indulge in pipe dreams. However, I am surprised to hear that Australian-made pipes are not acceptable to pipe smokers in this country. I shall make inquiries in the matter and furnish the honorable senator withan answer to his question.
– Has Senator Ashley’s attention been drawn to an article appearing in to-day’s issue of Smith’s Weekly in which it is stated that sworn testimony in the possession of that newspaper contains grave allegations against Commonwealth General Assurance Corporation Limited? In view of the serious nature of the allegations, will the Minister confer with the Prime Minister with a view to instituting an inquiry under the provisions of the Life Assurance Companies Act? Will the Minister arrange for a report on the result of the inquiry to be made available to the Senate?
– The assistance given by newspapers to. honorable senators opposite is very evident from this question. The newspaper was published only to-day, and I have not had an opportunity of seeing it nor have most honorable senators. If a perusal of the article indicates that the matter requires inquiry the Government will investigate it.
– Is the PostmasterGeneral aware that housing shortages are causing inconvenience and delay in his department, particularly to country maintenance gangs and to employees paid on a daily basis? Is he aware thatmany suchemployees travel many miles to and from the department’s country depots each day because of the shortage of accommodation, and that in one instance men are required to travel from Adelaide to Gawler, a distance of 25 miles? In view of this position, will the Government give consideration to building houses for the accommodation of postal officials, employees paid on a daily basis and linesmen?
– I am aware that there is a shortage of accommodation generally, butnot particularly for postal employees. However, the responsibility is not that of the Commonwealth Government; it rests with State governments. I am not aware of the circumstances mentioned by the honorable senator, but I shall have inquiries made and if it is possible for my department to do anything to improve conditions it will do so.
– Residents of the Northern Territory are exempt from income tax, if they are engaged in primary production, fisheries or mining operations. “Will the Government consider extending the same concession to residents of South Australia, particularly pastoralists and their employees who are occupying land immediately south of the border? At present they enjoy a slight concession but in common fairness they think that the rates should be brought into conformity.
-I shall bring the matter to the notice of the Treasurer for consideration.
– Following on a question I asked last Thursday, and the answer given by the Minister for Health and Social Services, I now ask the Minister whether in view of the fact that the Opposition is still on strike in connexion with its representation, on the Social Security, Committee, will the Minister consider appointing a conciliation commissioner t’o arrange for the reconstitution of that committee, so that some of the many social problems awaiting solution may be investigated during the next parliamentary recess ?
– I acknowledge the. great value of the work that has hitherto been done by all members of the Social Security Committee, and I am not aware that the present, position is anything in the nature of a “ strike “ ; it may bp merely a boycott. In/any event I suggest that the intervention of a conciliation commissioner might have fruitful results, not only for the Parliament, hut also for myself and the country. Perhaps lids matter might be better pursued when the Senate reaches an item which appears later on the notice-paper.
– In view of the very gi;eat, shortage of timber, in Australia, and the fact, that every, effort is being made-to import timber, will the Minister for Trade, and- Customs, consider, lifting all duties on timber? The present duties impose a tax on building, and as such they should be discontinued until local timber ‘becomes available.
– The importation, of, timber is. proceeding normally and Iiic timber, is being taken into. immediate use. in. the. building. trade. This matter has, previously been- considered, by, the Government, and it Ls believed, that the removal of the duty would not, result in the importation of any greater, quantity of timber.
– But ifr would save £30 to the builder of a cottage.
– However, I shall; give consideration, to trie ‘honorable sen a toil’s- request.
Stoppages at Mines.
– Can- the Minister for Supply,.- and Shipping say whether’ it is a fact that, there is a strike at twelve coal mines in New South, Wales- to-d’ay? Is: the- strike against- the Joint Coal Hoard,, the conciliation., commissioner, the Government of- New South Wales or the Government of, the Commonwealth? What steps does the Government propose to take, to settle the strike if, the conciliation commissioner has failed to settle the matter?
– I ami not. aware that there is a strike at twelve coal’ mines in New South Wales, to-day;. I can assure the honorable senator, that every step- is taken- to kee.p the mines iii production,, although I must, admit that the Goy.er-nm.ent has npt had. any more success, than previous governments, in this regaa-4. 1 do hope* however., that the establishment of the Joint Coal Board and the judicial authority set, up, with that hoard w.ill. have the effect of, minimizing, industrial unrest in. the industry.
asked the Minister for Trade and- Customs-, upon notice - li What are- the- ca,uses of new car shortage? in Australia:?- 2, Are. the shortages -due,- to anything which it is in the Government’s power to remove?
-The answers to the honorable senator’s questions are’ as follows.:- 1 and 3> The ‘principal cause of the shortage o.f new cars in Australia is, the loss* of production in the manufacturing, countries during the war. years. The present exceptional demand overseas for new vehicles is< such that the motor industry is: unable to supply- the whole of, *e quantity of new chassis- which Australia is prepared to take. The industry has not been able to keep pace with production schedules ow.ing to scarcity of.’ ‘ essential materials; and other factors which have limited the. output. A, contributory, reason for the shortage is the difficulty of maintaining, production of locally built and’ assembled bodies for the chassis, which have been imported; due mainly to the scarcity of, steel, sheets and other material requirements. The productive capacity for motor- .body building in Australia is sufficient,- to - supply normal requirements, but the available production,, has been, directed towards supplying bodies for the chassis ot makes in greatest demand. I understand that this has resulted’ in delays, in equipping some types,- of chassis with bodies,. but the causes ot such, delays are due to. factors over, which the Government has no control. 2’. No. The Government has- endeavoured to relievo the position by peeking new sources of supply of deep drawing auto body type steel sheets, but this type of sheet is not available in sufficient quantities to supply any appreciable portion of Australia’s requirements.
asked the Minister for Supply and Shipping, upon notice -
– The answers to the honorable senator’s questions are as follows: -
3 (a.) It is not possible toestimate extra costs involved in the proposed bill because weekly payments to the seaman himself have been reduced, and increased benefits given to wives and children. No estimate can be made of the accidents that will occur to married seamen or of thenumber of dependants they will have, nor of the severity of the injuries.
Extra insurance costs cannot be estimated. Claims made on shipping companies arc paid by mutual protection clubs, and calls are made on the industry in accordance with the amounts actually paid for various liabilities of which seamen’s compensation is only one.
Seamen’s Compensation Act (proposed in bill) - £800 plus £25 for each dependent child.
Commonwealth Employees Compensation Act - £800 plus £25 for each dependent child.
New South Wales - £800 plus £25 for each dependent child.
Victoria - £l,000 plus £25 for each dependent child.
Queensland - £800 plus £25 for each dependent child.
South Australia - £750.
Western Australia - £750.
Tasmania - £1,000 plus £25 for each dependent child.
Seamen’s Compensation Act (proposed in bill)- £100.
Commonwealth Employees Compensation Act- £100.
New South Wales - £50 (extra in special cases ) .
Victoria - £75 (£100 in special cases).
Queensland - £50.
South Australia - £25.
Western Australia - £100.
Tasmania - £50.
Seamen’s Compensation Act (proposed in bill) -No limit.
Commonwealth Employees Compensation Act - No limit.
New South Wales - No limit.
Victoria - £1,250.
Queensland - £1,000.
Western Australia - £750.
Tasmania - -£1,250.
asked the Leader of the Senate, upon notice -
– The answers to the honorable senator’s questions are as follows : -
asked the Minister representing the Minister for Information,upon notice -
Will the Minister state whether any attempt was made under any National Security Regulations to censor the report appearing in the daily press of Australia recently of a meeting of the Liberal party of Tasmania, which stated that a Mr. Desmond Lyons, who is a son of the honorable member for Darwin, had attacked the right honorable member for Kooyong and demanded that he resign his office of Leader of the Opposition in this Pa rliament?
– The Minister for Information has supplied the following answer: -
There is no censorship in peace-time except the censorship which the newspapers themselves exercise to suppress items which do not conform to their particular policies.
asked the PostmasterGeneral, upon notice -
– The answers to the honorable senator’s questions are as follows : -
asked the Minister representing the Minister for Commerce and Agriculture, upon notice -
SenatorCOURTICE.- The Minister for Commerce and Agriculture has supplied the following answers: - 1.No. An approach was made to the British Government on the 14th April regarding the re-opening of Tasmanian dehydration factories to provide food for the United Kingdom. The Ministry of Food replied on the 23rd April, to the effect that there was no justification for this as by the time shipments arrived from Australia in June and July. United Kingdom local production would suffice to meet demands.
asked the Minister for Munitions, upon notice -
– The answers to the honorable senator’s questions are as follows: -
asked the Minister representing the Minister for Transport, upon notice -
– The Minister for Transport has supplied the following answers: - .
asked the Minister representing the Minister for Commerce and Agriculture -
– The Minister for Commerce and Agriculture has supplied the following answers : - 1 and 2. The following amounts per bushel for the total crop of apples and pears, both delivered and tree-measured, were paid during the years 3940 to 1946: -
The figures represent payments for fruit only and should be increased in respect of fruit delivered to the Board by amounts ranging f rom 2d. per bushel dir. L942’ to 6d. per1 bushel- in the years 1944 ,to 14)46. In, addition te the above, the Apple and Peir Board paid all the costs of packing, transportation and cool storage, &c, at prices which gave the processors (including growers) their normal profits.
*>. The following table sets out the financial position of the operations of the board from 1940 to 1946:-
It will be noted tha.t in four years the board made a trading profit in connexion with fruit delivered but that with the exception of 1945 these credits became debits as the result ‘of the payments made by the board on treemeasured fruit.
Motion (by Senator McKenna agreed to-
That leave be given to bring in a bill for an act to declare that certain enactments relating to social services have “full force and effect, and for other purposes.
Bill presented, and read a first time.
Motion (.by Senator MoKenna) agreed to-
That leave be .given to bring in a bill for an act to amend and consolidate the law relating to the payment of age pensions, invalid pensions, widows’ pensions, maternity allowances, child endowment, unemployment benefits and sickness benefits, :and (or other purposes.
In committee: Consideration resumed from, the 9,th Ma.y (vide page 2.174)..
Clause 5 -
Sections two and three of the Principal Act are repealed and the following sections inserted in their stead-: - “ 2. The -chief objects of this Act are - (/;) to constitute a Commonwealth ‘Court of Conciliation and Arbitration having exclusive appellate jurisdiction in matters of law arising under this Act and, limited jurisdiction in relation to industrial disputes; and
Upon which Senator McLeay had moved by way of amendment -
That, in proposed new section two, paragraph /, the words “exclusive appellate jurisdiction in matters of law arising under this Act and limited “ be left out.
– Under this proposed new section as it now stands, appeals from the Arbitration Court or from decisions of conciliation commissioners to the High Court will be barred. The effect of the amendment I have moved will be to retain this right,of appeal. I hope tha* in the interests of the normal processes of law, the Government will not insist upon this shortcut.
The Minister for Health (.Senator McKenna) referred to the number of cases that had been taken from the Arbitration Court to the High Court on appeal, but an examination of records reveals that in the ten-year period from , 1930 to 1940 appeals to the High Court from the Arbitration Court totalled only 22. It is reasonable to assume that as time goes on, and various matters of interpretation are determined, by the High Court, appeals to this superior jurisdiction will become fewer.
– There is nothing extraordinary about the provision that decisions of the Arbitration Court shall ha ve final and conclusive effect. Referring to the original Commonwealth Conciliation and Arbitration Act of 1904, we find that section 31 (1) provides -
No award of the Court shall be challenged, appealed against, reviewed, quashed, or called in question in any other Court onany account whatever.
Sundry amendments were made to that section down the years, until in 1930 the Senate, against the wish of the Scullin Government, imported certain amendments into that section, and in particular, to the sub-section that I have quoted. It was then that the appeal to the High Court was instituted. I dealt with this matter fully last Friday. TheGovernment wants speedy decisions in relation to matters affecting industrial disputes. It has strengthened the appellate jurisdiction of the Arbitration Court, until now, for the first time, it is the final court of appeal from all judicial decisions of inferior tribunals in proceedings for breaches of awards, offences against the act, matters of interpretation, and so on. So, rather than the status of the Commonwealth Arbitration Courtbeing undermined by this measure, that court is having vested in it an appellate jurisdiction which hitherto has been lacking. The Leader of the Opposition (Senator McLeay) referred to the number of appeals to the High Court over a period of ten years. On Friday, I said that I was not aware of the exact number of appeals involved, but that I considered that they would not have been numerous. I also indicated that I was more particularly interested in what had transpired during the war years, when certain appeals were made from the Arbitration Court to the High Court in circumstances that negated justice. I invited the Leader of the Opposition to have regard to these developments down the years from 1940 to the present. With great respect to the Leader of the Opposition and to other honorable senators opposite, I inform them that the Government has made up its mind to limit appeals fromthe Arbitration Court.
Question put -
That the words proposed to be left out (Senator McLeay’s amendment) be left out.
The committee divided. (The Chairman - Senator T. M. Nicholls.)
Majority . . . . 11
Question so resolved in the negative.
Clause agreed to.
Clause 6 (Definitions).
– I ask the Minister whether the words “industrial authority “ are defined in this bill or in the principal act. If not, I presume that the term, “ industrial authority will cover a conciliation commissioner.
– On the brief notice given to me by the honorable senator, I can only say that I do not think that the term “industrial authority” is defined at all in the Commonwealth Conciliation and Arbitration Act. I believe that the honorable senator is concerned with the definition of “industrial authority “ in the Wage Pegging Regulations, and, therefore, I refer him to section 14 of those regulations. The full definition is as follows : - “Industrial Authority “ means the Court and includes any other tribunal or person constituted by or under any law of the Commonwealth for the purpose of hearing and determining industrial disputes and making awards or orders in settlement thereof, and any tribunal which is a State Industrial Authority within the meaning of the Commonwealth Conciliation and Arbitration Act 1904- 1934, and also includes the Public Service Arbitrator and any tribunal, body or persons having power, by virtue of any law, to determine rates of remuneration for apprentices.
That definition covers not only Common.wealth authorities aud State authorities, but also every other conceivable form of tribunal that might deal with relations of employers and employees.
– The clause states that “industrial matters “ means all matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes - (/) the question whether monetary allowances shall bc made by employers in respect of any time when an employee is not actually working.
Does that paragraph refer to sick pay, annual leave, or attendance money? If not, what is its application?
– That portion of the definition of “ industrial matters “ is not intended to refer to the matters mentioned by the honorable senator. It,assumes immediately that the relation of employer and employee has been established. It relates to matters which the Arbitration Court, or a conciliation commissioner, might consider in relation to travelling from home to work, ‘or, particularly, to periods of rain or intense heat, when conditions of the elements might interrupt work” for a considerable period. It will bring within the scope of the definition matters to which the court and the conciliation commissioners may direct their attention and, ultimately, their awards.
.- I have a question relating to the definition of an “ organization “. It seems to me that an anomalous position will he created in Victoria, where over 1,200 members of the Graziers Association have been, cited before the Arbitration. Court. The association is an unregistered body. Does this mean that every member who has been cited will have to attend in person before the court and appear for himself, because individuals may not appoint paid agents? Will the Minister clarify this position?
– The definition of “ organization “ is not dealt with in this clause. The point with which the honorable senator is concerned might well be raised when the. committee is considering proposed new section 43o in clause S of the bill. That proposed new section deals with the representation of parties before the court or a conciliation commissioner. However, I see no reason why an organization existent in Victoria that is affiliated with other bodies, should not be registered with the Commonwealth Arbitration Court. I consider that it would be desirable for a body having interstate affiliations, thus demonstrating the possibility of an interstate industrial dispute, to be registered with the court. Honorable senators will agree that the ambit of the court is constantly expanding, and it is highly desirable that bodies engaged in an industry that spreads throughout Australia should be registered with the court. I believe that the difficulty envisaged by Senator Gibson would disappear if the body which he has in mind would become registered as an organization under the act.
.- The Victorian Graziers Association may have some difficulty in obtaining registration. Already three graziers’ organizations in New South Wales, including one in the southern Riverina area, are registered with the court. I understand that there is great difficulty in securing registration for a body if another body bearing the same name is already registered.
– Section 59 of the existing Commonwealth Conciliation and Arbitration Act is as follows: -
The various graziers’ bodies have a Graziers’ Federal Council of Australia, which embraces the associations in New South Wales nml other associations under various names i” the different States. I notice that the list of associations federated with the council includes the Victorian Graziers Association. yen;) tor Gibson - No. The Victorian Graziers Association is not registered.
– No, but the bodies are federated with the Graziers Federal Council of Australia, and I notice that at .least the Graziers Association of New South Wales is registered as an organization.
– And the Pastoralists Association and .the Graziers Association of the .Riverina.
– That is so. I do not know whether the Graziers Association of Victoria has made application for registration with the court and encountered difficulties. However, it occurs to me that, as a first approach, it might make such an application., and, that, if no objections were raised by the kindred bodies already registered, the Registrar might have no hesitation in. according registration. If the honorable senator assures me that an application has been made and rejected by the Registrar-
– I do not think so.
– The association might well explore that avenue. It may encounter no difficulty if objections are not raised by the somewhat similar ‘bodies already registered. That would give it the status in the court which it seeks.
Clause agreed to.
Clause 7 agreed to.
Clause S -
Part III. of the Principal Act is repealed and the following Parts are inserted in its stead :- “‘20. - (1.) An award or order of a Conciliation Commissioner shall not be challenged, appealed against, reviewed, quashed, or called in question, or he subject to prohibition, mandamus or injunction, in any Court on any ieconnt whatever. “43c:. - (1.) In any proceedings before the Court or a Conciliation Commissioner -
a party (not being an organization) may he represented by -
an employee of that party; or “ 43s. (3.) Where the Court or a Conciliation Commissioner, by an order or award, prescribes a. minimum rate of wages, the Court or Conciliation Commissioner may provide for the. payment of a lower rate for an employee who is unable to earn the minimum wage s<« prescribed, in which case the Court or Conciliation Commissioner shall provide that the lower rate shall not, be paid unless; a person or authority specified by the Court or Conciliation Commissioner has certified that the employee is unable i.o earn the minimum wage “.
– Proposed new section 15 provides that the Chief Judge may assign a conciliation commissioner to a particular industry or group of industries, and proposed new section 16 provides - (1.) Subject to the last preceding section, it shall be the duty nf the Chief Conciliation Commissioner to organize and allocate the work of all ‘the Conciliation Commissioners.
It appears to nic that there is a likelihood of misunderstanding as the result of giving authority both to the Chief Judge and to the chief conciliation commissioner to delegate various commissioners to different groups of industries. If there is conflict I presume the Chief Judge will decide the matter, but is there any possibility of conflict between the proposed commissioners themselves? Is there anything in the bill which makes it compulsory for a commissioner to accept an assignment from, the chief conciliation commissioner 1
– I ‘do not think there is any possibility of conflict because proposed new section 15 (1.) empowers the Chief Judge to assign, a conciliation commissioner to a particular industry or group of industries, while section 16 (1.) provides that - “ Subject to. the last preceding section, it snail be the duty of the chief conciliation commissioner to organize and allocate the work of all the conciliation commissioners “. The Senate will notice that in -option 15 (1.) the word “ may “ is used, so that the sub-section does not impose the duty upon the Chief Judge,, but provides merely that he “ may assign a conciliation commissioner to a particular industry or group of industries “. The question has been asked : “What will happen if the Chief Judge decides not to assign particular commissioners to particular industries? To overcome what might have been a hiatus, provision is made in the bill to meet this contingency by section 16 (1.), which, as I have already said, reads -
Subject to the last preceding section, it shall be the duty of the Chief Conciliation Commissioner to organize and allocate work of all the Conciliation Commissioners.
All that the chief conciliation commissioner can do is to organize the work of a conciliation commissioner within a group of industries. He might, for instance, direct a particular commissioner to investigate and adjudicate upon a dispute in the metal trades industry to-day and to go to another industry to-morrow. I assure the honorable senator, that there is no possibility of conflict between the provisions of sections 15 (1.) and 16 (1.). The honorable senator also inquired whether the hill confers power to compel conciliation commissioners to obey all behests of the chief conciliation commissioner. Section 16 (2.) provides -
Each Conciliation Commissioner shall’ comply with’ any direction given for the purpose of the.- last, preceding sub-section which is applicable, to him.
Therefore, it is clear, that the Chief J udge has permissive- power, to. allocate commissioners to different industries. If he fails to act the chief conciliation’ commissioner must do so. Furthermore, the chief conciliation commissioner can organize the work of the commissioner and they are obliged to obey his direction, both, in regard to the allocation of their work and its organization.
– I regard this clause as the most important part of the bill, because it provides for the- selection and appointment of conciliation commissioners. The selection of the proposed appointees will be the determining factor in the success or otherwise of these people in their’ application. I should like- the Minister to give some indication of what arrangements are to be made with regard to the- allocation of work in the several States. The Minister indicated, in reply to the Leader of the Opposition (Senator McLeay), that the conciliation commissioners may be alio’cated to different industries. Doe3 thai mean that they will be selected because of their special knowledge of particular industries? Will the proposed commissioners be stationed permanently in particular States- of the Commonwealth, or will they be sent from one State to another as disputes arise ? I am still unconvinced that the Government- will be able to withstand the pressure that will undoubtedly be brought to bear by big industrial unions to have men appointed who’ have had previous affiliation with the trade union movement. I feel that such appointees will not be able to adjudicate impartially on the questions thai come before them for decision.
’.- I think that there is bound to he conflict under this clause, because power to allocate the duties of the commissioners is conferred, on both the Chief Judge and the chief -conciliation commissioner. I do not see how the appointees can be expected to function.1 under two authorities. Apparently, in. the first place, the Chief Judge will allocate industries to particular commissioners, leaving- the entire residue of industry to be the province oil’ any commissioner.
– ;Is any penalty provided in the bill, other than the power to remove him on an address of both Houses of Parliament, in the event of a commissioner refusing to accept a direction?’ Adverting to the words, “The Chief Judge may assign”, I suggest that the Chief Judge, who is a person of considerable experience and prestige may be tempted to assign the entire regulation of industry to conciliation commissioners. Is that a possibility?
– The matters raised by Senator Cooper are important. He asked whether the persons to be appointed, conciliation commissioners will be. selected by reason of their affiliation with trade unions. For his benefit I repeat the assurance given by the Attorney-General (Dr. Evatt) in the House of Representatives, that the Governm’ent, recognizing that the success of this new approach to industrial disputes rests entirely upon the calibre of the men .tb be Selected for these appointments, will -nave regard to the qualities of integrity, ability and under- standing of the industry. “When I say, “ understanding of the industry “, I do not mean that a ‘detailed knowledge of a particular industry “will he required of a commissioner at the time he is appointed, but that he should possess the caf) a city ‘to assimilate ‘that knowledge. The conciliation commissioners must possess -a Wen sense of justice and must be of -such status an’d character that they Will ‘convey a -sense Of impartiality to both sides in industrial disputes in which they will be called upon to ‘adjudicate. If a conciliation commissioner lacks the confidence o’f either side it is inevitable that he will ‘fail, arid ‘that ‘consequently this experiment on which the Government is embarking will come. to nought The Government has a very full realization of that. At the same time, previous affiliation with the trade union movement or the Australian Labour party will not debar’ a man from appointment any more than the possession of legal training will disqualify him. There is a clear recognition by the unions themselves of the value of, and ‘the necessity for people with legal qualifications Reference to the bill shows that provision is made for legally qualified -persons to appear before the court. Of c’Ours’e, before such persons can appear they must obtain the leave of the court and the consent of both parties. The Commonwealth Court of Conciliation and Arbitration has had a most extraordinary array pf legal talent appearing before it since last May, and in all major industrial determinations legal representation is the order of the day.
asked a question regarding the allocation of duties’’ between the commissioners. The Chief Judge will first of ail decide whether -any commissioner is to be allocated to -‘any particular industry. H’e may elect to Utilize the alternative’ power ‘con’tain’ed in section 15’ (21), and himself assign a ‘conciliation commissioner to a- particular industrial dispute. I do not think the legislature should ‘tie ‘the hands of the ‘Chief Judge but should 1’e’ave ‘both avenues “Open to Min. Quite frankly, I think what will happen will be this : A man of outstanding ‘qualifications will be selected for the position, of chief conciliation commissioner, and the Chief Judge” , will then allow him to allocate the work between the conciliation commissioners because the chief conciliation commissioner will have -a much closer liaison with the commissioners. I ‘do not suppose that the Chief ‘Judge will interfere with the allocations made by the chief conciliation commissioner unless’ he finds that something is going wrong or unless a dispute of particular urgency arises and -he is riot satisfied with the allocation made by the chief ‘conciliation ‘commissioner. I assure Senator Gibson that there is no possibility ‘of conflict between the Chief Judge and the chief conciliation commissioner iri ‘the allocation of duties because the bill ‘clearly provides that if the, Chief Judge acts iri the matter the chief conciliation commissioner has nd power to interfere with that allocation. In the past the practice has been to allocate conciliation commissioners to ‘ particular States. For .instance, brie’ ‘commissioner is how allocated to cover disputes in Victoria and Tasmania, whilst two ‘other commissioners deal with disputes in South Australia arid Western Australia. From time to time a hia-n with’ particular qualifications may be selected to deal with a dispute anywhere in Australia.- The Government does . not think that in matters of this kind there should be rigid provisions. It admits that this is a new approach to industrial problems, and that to a degree this legislation which is based on judgment and hopes, is experimental. Accordingly, the Government prefers to leave a degree pf flexibility in the legislation so. that, i’f necessary, we may proceed by the process 6f trial and error. Although it -is important that the conciliation commissioners shall be selected because . of their knowledge of industry generally, that does not necessarily mean that they shall have’ worked through every” stage of ari industry.
– A complete knowledge of an industry gained by p’rac’tica’l experience: would be ari advantage.
– I agree, but such practical experience is not the only qualification called for. It will be possible to station commissioners in various States, or to group them as suggested by Senator Gibson. That is a matter which will be left to thejudgment of the Chief Judge or of the chief conciliation commissioner.
Apart from the power vested in the Parliament to remove a conciliation commissioner for proved misconduct or misbehaviour, no other sanctions are imposed. These men will’ be selected for their outstanding qualifications, including character, so that the likelihood of any of them ceasing to comply with lawful orders is about as remote as is the possibility of a justice of the High Court following such a course. No real difficulty is expected in that connexion. I assure the committee that the AttorneyGeneral recognizes the necessity to appoint the right kind of men as conciliation commissioners. As the Government realizes that the success of this legislation will depend largely on the choices that are made, great care will be taken in the selection of conciliation commissioners.
.- Subsection (1.) of proposed new section 20 reads -
Before dealing with any suggested amendment of proposed new section 20 to provide for a right of appeal to the ArbitrationCourt. I should like the Minister for Health (Senator McKenna) to explain the position in regard to wagepegging regulations, particularly the effect of statutory rule No. 49 of 1947, dated the 9th April, 1947. In order that we may understand what the law will be when this measure is assented to, I propose to read the regulation covered by the statutory rule mentioned. It relates to an amendment of National Security (Economic Organization) Regulations, and reads -
Regulation 18 of theNational Security (Economic Organization) Regulations is amended by omitting sub-regulations (3.) and (4.) and inserting in their stead the following subregulations: - . “ (3.) Where the matter of an alteration of a rate of remuneration comes before an Industrial Authority or Public Employment Authority by a plaint, reference or application or by a proposal for an industrial agreement lodged with or made tothat Authority, and that Authority has not, under any other provision of this Part, authority to do any Act or thing to effect the alteration, that Authority shall if, after a preliminary hearing or examination of the matter, the Authority is of opinion that the grounds on which the alteration is sought provide primafacie evidence that an alteration should be made, submit -
I understand that when this legislation is proclaimed proposed section 21 will stand, and also that wage-pegging regulations to which I have just referred will stand. If that be so, a peculiar situation will arise. If the wage-pegging regulations remain, before any of the fifteen . conciliation commissioners can make an award providing for increased rates of pay he will have to obtain the approval of the Chief Judge of the Arbitration Court. This matter was raised in the press and it was discussed in the House of Representatives, but for some unknown reason the Attorney-General (Dr. Evatt) did not refer to that aspect of the measure in his second-reading speech. Perhaps he thought that it was a matter of high political importance, but whether it was by accident or design, the fact remains that he did not deal with- that point. This committee ought to know that the general opinion held by the public is that the conciliation commissioners will be free, and that their decisions will not be subject to appeal. That misunderstanding may lead to confusion and illfeeling. I do not know how many cases are likely to be affected, or what types of cases which would be subject to those regulations might arise, but I am certain that when this legislation has been assented to there will be hundreds of cases which will come before the conciliation commissioners for determination. If my contention that the’ wage-pegging regulations will still remain in force be correct, I can visualize a state of affairs arising which will make it physically impossible for the Chief Judge to say whether an increase of wages will, or will not, be in the interests of national economy. As this is a matter of great importance, I sought legal advice regarding it. Among those from whom opinions were sought was the Leader of the Opposition in the House of Representatives (Mr. Menzies). The first paragraph in his opinion reads -
Further consideration of the Conciliation and Arbitration Bill now before Parliament discloses a feature of immense importance which so far appears to have escaped parliamentary attention.
That paragraph draws attention to the disadvantages associated with the use of the guillotine - a practice by which legislation is rushed through before it has been thoroughly discussed. The right honorable gentleman,’ who is a recognized authority , on these matters, then asks the following questions : -
Is it the intention of the Government that the new Conciliation and Arbitration Bill should terminate -wage-pegging? If so, the public and particularly the trade unions, should be told this plainly. If, on the other hand, the Government believes that the new bill does not over-rule the previous regulations will it say so plainly? Will it equally make it clear to the public that, on that view of the legislation, there will be in effect an appeal to the Chief Judge on questions of remuneration on a great number of the decisions of the conciliation commissioners, since the last wage-pegging regulations gave this control to the Chief Judge and not to the. Full Arbitration Court?
Time will be saved if the Minister in charge of the ‘ bill will explain exactly what restrictions will be imposed on the conciliation commissioners by the wagepegging regulations to which I have referred. I again ask the Minister whether the conciliation commissioners will be limited by the wage-pegging regulations. Having obtained that information, the committee will be in a position to discuss the matter fully.
– The Leader of the Opposition (Senator McLeay) has suggested that the question of the relation of the wage-pegging regulations to the bill now under consideration escaped parliamentary attention. It is true that it escaped parliamentary attention when the bill was before the House of Representatives; but it is also true that the matter had full consideration by the Government. If there was a failure to deal with the matter in the Parliament, the fault does not lie with the Government; and that for another good reason, too, that the legal position is obvious. It is true that the wage-pegging regulations operate to-day, not under the National Security Act but under the Defence (Transitional Provisions) Act, and with limited operation only to the 31st December next to override and control the provisions that are .being inserted in the Commonwealth Conciliation and Arbitration Act under this bill, which is of a permanent nature. I do not like throwing Latin phrases at honorable senators, but I suggest that this matter is governed by the. phrase, generalia specialibus non derogant, which means that special provisions override general provisions. To reduce that to lay terms: Here we have a special act, the Defence (Transitional Provisions) Act, giving the virtue of statutory law to the regulations which the Leader of the Opposition has read. When the bill was drafted it was decided not to incorporate anything in it which was related to an act, or regulation, of such transient operation as the regulation cited by the Leader of the
Opposition. But for another reason, too, the wage-pegging regulations apply. The Leader of the Opposition read the regulation dated the 9th April, and. I shall not read it again. The effect of it is, as he has stated, that where an industrial authority, and’ that will include a conciliation commissioner, is about to make an award he must first seek the concurrence of the Chief Judge if, and if only, the rate of remuneration is affected. The broad question of rates is left to the court; and there are numerous matters outside the question of remuneration that a conciliation commissioner can attend to under the wage-pegging: regulations to-day without any reference at all to the Chief, Judge.
I draw the attention of the” committee to this position: The wage-pegging regulation cited’ by the Leader of the Opposition determines what shall happen before an award is made. An industrial authority, contemplating the making- of an. award, must go to the Chief Judge and tell him what he has in contemplation, the principles he- proposes to apply and the reasons for the proposition he is putting to the Chief Judge. Section 20 (1) refers to “ an award, or- order of a conciliation commissioner. That; unquestionably, means a valid order, or a valid award; and a– conciliation commissioner, under another law dealing- with anterior aspects of making an award, must consult the Chief Judge. The two thing?- are in water-tight compartments; and the intention in the mind of the Government, at- least, has always been that the wage-pegging regulations- shall apply, despite the amendments only that are now being- effected 1 to the principal act: I- donot think that is going- to cause- any industrial trouble, or1 unrest: There,, certainly, was no attempt on the part of the Government to conceal that’ position. I disagree with the Leader of the Opposition- when he says that there is a general impression that this bill will dispose of wage-pegging regulations. From my association with the’ industrial units of the country; that is completely wrong; There is the clearest’ understanding: industrially that wage1 pegging regulations shall continue to apply. The unionists’ understand, too, that those regulations must come up for parliamentary review before’ the end of the year. They understand, further that the Government’ is continually reviewing’ the position regarding wage-pegging, and has given ample evidence of its desire’ to terminate the operation of those’ regulations as soon as possible. Honorable senators will remember that in March last year the first relaxation: took place when the- unions’ were permitted to go to the Arbitration Court on the two main questions of hours and wages; and, in fact, if the Leader of the Opposition has followed closely the trend of events’ from that day lie will find that the initiative has remained’ with the Government throughout; because it was the AttorneyGeneral who intervened in the printing industry case and elevated- the question of the 40-liour week, and, later, the’ question of the basic wage] to a position which had: a general application to1 all union’s coming within the ambit of. theCommonwealth Arbitration Court. Further relaxation of those regulations were effected- in December’ of last1 year’ and March and April of this year, and the Government had been’ active- in’ seeking to get- rid ofl those regulations- in common with all other war emergency regulations. The Leader of the Opposition can rest assured that no unionist is under ,any misapprehension about the point: he raised.
Regarding the difficulties which the Leader of the Opposition says might arise because fifteen conciliation commissioners may need to approach the” judge and’ thus chit tei- up the court with work and’ cause difficulties that will make for entanglement, I repeat the point I made a moment ago, that many matters before th’e conciliation commissioners will’ not relate to the one aspect that is required’ in the wage-pegging regulations, that is, where the rate of remuneration is affected. But. in any event, I point out” that throughout the war period when we had a spate of industrial unrest and more instances of industrial unrest than hitherto, the. Chief Judge, aided by eight commissioners, was able to cope with them. Frankly, f do’ not expect that. there will.be any. greater difficulty under, the new proposals. It is obvious that- by the time this measure:is proclaimed and’ conciliation, commissioners are set up and’ allocated, their various duties, some reasonable time will elapse: Lam not- prepared, at this stage; because the matter has- not been considered, to forecast- whether, the wagepegging regulations will” still be in1 operation when this- measure comes,into force. That may, or’ may not, be the position.
– Hats. - That i’s ali important question.
– The wagepegging regulations are limited in their, operation by the law of to-day to the 31st December of this. year. They’ cannot be extended without the matter coming before the Parliament. They may however, in the interim, be -repealed. They may also, in the interim, ‘be varied, as has happened in this case. The point is important, but the Government regards the wage-pegging, regulations- as havingfu 11 force and effect,, despite the provisions in the bill we are now considering.
:- The Minister for Health (Senator McKenna) has stated the position very- clearly and frankly. He says that th& conciliation commissioners- will “be- handicapped- when dealing, mainly- with remuneration: I suggest that in” 99 per- cent, of the cases that will come before’ the conciliationcommissioners the question of: remuneration will be included, because the basic wage, hours; remuneration >of female l abour and - sick leave and holidays do not come within their jurisdiction. What are the fifteen conciliation commissioners going to- do? I anticipated that a- considerable amount’ of work’ would ‘be given to’ them, and that1 they- would be called upon to deal with hundreds of’ cases. If their jurisdiction is limited there will’ be chaos and confusion. So far as -lie wagepegging’ regulations- are concerned, the committee must bear1 in mind that many of the serious strikes which have taken place during the last two years- have occurred because’ of the Government’s’ policy with respect to wage-pegging. Those strikes have really been’ a ‘challenge to the Government; and it; is interesting to note that during that period the Government has been forced by political pressure’ to appease and to retreat. It;is interesting -to read the comment of a well- known authority upon these wage-pegging’ regulations, particu-la’rly: the- latest regulation, which places upon the Chief Judge the onus of deciding; more or “less; the eco- nomic policy of the Government; l.l seems’- ludicrous that the Chief Judge should be obliged to make’ that decision; but, under’ this measure, there is no right, of appeal from the conciliation commissioners’ decisions- to the Arbitration Court as a court, in spite of.” the fact: that’ fifteen different opinions may he” given. The last1 absurdity- occurred’ when Cabinet: shuffling out of its responsibility ‘for economic policy, transferred to the’ Chief Judge,’ and in the’ coal-mining industry to another” authority, the obligation to decide whether it would be- in the national interest to grant applications !for increases of wages. I should have thought; that the economy of th.ev country was the responsibility of the Government. The. Government created the wage-pegging regulations. That is the Government’s own law ; yet now, in effect, it says’ to one judge of the Arbitration Court,. “Will you please accept the responsibility for deciding when, and under what conditions, our own. law is to come into the matter.? “ That transfers to a judicial authority the whole of the Government’s responsibility- for economicpolicy. It represents a complete abdication on the part of the Government.; and that abdication has accounted fbr practically’ every strike which has occurred during the last twelve months: Honorable senators from South Australia will, be aware that during the last week steps were taken in a prominent trade union organization to bring, pressure to bear upon the Government to dismiss Chief Judge Drake-Brockman, because those unionists thought that it would be impossible for them to get all ‘ they, wanted while he. remained Chief Judge of the court. The law must be observed. The Government must govern. It cannot afford to appease. It cannot afford to continue its retreat from the wage-pegging regulations- whenever political pressure is brought to bear upon it. Even when this measure becomes law, it will not be possible to get quick decisions on matters affecting’ wages because such decisions will need the approval of the Chief Judge of the Arbitration Court, or, in the case of th’e coal industry, the chairman of the Joint Coal Board, to be effective. It would’be better’ to’ scrap the wage-pegging regulations and provide for the right of! appeal to the Arbitration Court. Th’e
Government itself and political leaders generally should do everything possible to preserve peace in industry by keeping as many cases as possible away from the Arbitration Court and from the conciliation commissioners. Let the employers and the employees get round a table and show a sane approach to the problem of ending the industrial civil war that is doing so much to-day to retard production, prevent a higher standard of living, and nullify our efforts to render humanitarian service to people overseas who are starving for our goods. We shall not improve the position by passing measures such as this ; we shall only make it worse.
– Dealing first with the formal matters relating to the bill raised by the Leader of the Opposition (Senator McLeay), I’ wish to say two things. Thereafter, I shall take the honorable gentleman to task for several of his later comments which were unquestionably on the political level. Down the years the Chief Judge of the Arbitration Court has been in the same responsible position as he is in to-day, and has had matters going to him, not only from Commonwealth and State tribunals, but also from every industrial authority in this land. The Chief Judge is not without assistance. ‘He has his brother judges who are specialists in particular industries, and I have no doubt that he co-opts them for their assistance and advice. At all events, the Chief Judge has not been sending out any distress signals. I repeat that apart from the provision inserted by the April amendment, the honorable gentleman will find in section 18 of the National Security (Economic Organization) Regulations, many matters relating to remuneration that can- be dealt with by an industrial authority, including a conciliation commissioner, without reference to the Chief Judge of the Arbitration Court. There is, for instance, the much discussed formula relating to the increase of marginal rates by approximately 25 per cent.
I take strong exception to the comments made by the Leader of the Opposition in regard to what he described as the appeasing and retreating policy of the Government in relation to industrial un rest. His utterances were. unquestionably propaganda, and I regret that they should have been imported into a debate which I hoped would be confined to the bare merits of the legislation with which we are now concerned. Of course, the honorable gentleman has a perfect right to raise any matter he wishes, but I say to him at once that his statement that the Government has appeased and retreated is quite at issue with the truth. Apparently, the honorable senator has forgotten what happened a year ago last Christmas when there was an ironworkers’ strike at Port Kembla. With Sydney, and most of* New South Wales lacking electric light, power, transport and so on, it would have been very easy for the Government to have intervened against constituted authority, but anybody who has studied industrial relations in the last year or two will realize that the Government made a stand against those who were seeking to destroy the .arbitration system - a stand that has been reinforced and has had a potent influence on the cleansing of destructive elements from the industrial sphere in New South Wales. In that regard, the Government has also given a lead to the moderates, if I may perhaps improperly refer to them as such - the ordinary trade unionists - to take similar action throughout the rest of the Commonwealth. There was no appeasement in relation to the recent Victorian metal trades strike that dragged on from October of last year until quite recently. Time and time again this Government has said, and has insisted that whoever is on strike must sooner or later come back to the processes of law, and of arbitration and conciliation. The Government has upheld those processes most strongly throughout its history. If that can be called retreating and appeasing, then the Government is guilty. Does the Leader of the . Opposition suggest that the Government should intervene in matters that are before the courts? If it were to do that, I have no doubt that the honorable gentleman would say immediately and with justification that it was interfering improperly. If the Leader of the Opposition ponders for a moment on the settlement of the metal trades strike in Victoria, he will realize that there was a triumph for the processes of conciliation because it was the conciliative processes of the court that settled that strike after the court had intervened by calling a compulsory conference. It showed too that the court had in its hands all the coercive powers that it required.
– Why did it fail to lake action?
– I am not prepared to debate in this chamber why the Arbitration Court did or did not take action.No doubt it had very good reason for the course that it adopted. It is an expert tribunal with a very wide understanding. It also has complete tolerance. Down theyears, it has accumulated a great deal of wisdom and its judges, more than any one else in the community, realize how easy it is to throw a flame into a petrol tin and start a conflagration spreading from one end of the Commonwealth to the other. I do not propose to go into what might have influenced the judges in not acting sooner or more drastically, but I am prepared to pay them the tribute of saying that rhey acted wisely. I repeat that the initiative in industrial matters in this country has lain with this Government. On its own motion, it has modified the wage-pegging regulations. From the beginning, its object has been to get rid of emergency regulations as soon as possible. The Government has moved under its own power. It has listened to representations from all sections of the community, and it has made its own decisions.
I thought for a. moment from the way that the Leader of the Opposition was developing his argument that he was about to suggest that the wage-pegging regulations should be re-imposed. I do not know whether or not that was his intention, but apparently he is prepared now to concede the need for conciliation commissioners. He said. “ Letus appoint our conciliation commissioners”. That is the third voice with which he has spoken on that subject. Last Thursday he said that he wanted nothing to do with conciliation commissioners. He favoured the appointment of more Arbitration Court judges and the strengthening of the court. I invite the honorable senator to decide what he really does recommend to the Government. The Government has made up its mind, and is pursuing two courses to, an end that it believes will give a reasonable chance of industrial peace in this country. As one instance of Government initiative and activity, I point to the war-time referendum. In the war period and during the most disturbed industrial era that this country has ever known, the Government was prepared to take the full responsibility for industrial conditions. Would it have done that had it lacked courage? However, the people of the Commonwealth, acting on the advice of members of the Opposition amongst others, did not concede the powers that the Government sought. I ask the Leader of the Opposition, in view of what I have said, to let us hear no more of charges of appeasement and retreat, but. more credit for the results that have been achieved. .
SenatorMcLEAY (South AustraliaLeader of the Opposition) [5.16]. - I move -
Hint, in proposed new section 20, sub-section (1.)be left out with a view to insert in lieu thereof the following sub-sections: - (1.) An appeal shall by leave of the Court lie to the Court constituted by the Chief Judge and not less than two other Judges against any provision in any award or order of a Conciliation Commissioner affecting -
a ) wages;
any condition of employment which in the opinion of the Court is likely to affect the public interest. “ (1a.) Any such appeal shall be made in the manner and within the time prescribed by the rules made in accordance with section forty-three of this Act. “ (1b.) On the hearing of an appeal under this section the Court may -
take fresh evidence:
confirm, quash or vary the award or order or part thereof which is under appeal :
refer the award or order, or any part thereof, back to the Conciliation Commissioner for reconsideration, and with or without such directions or suggestions as the Court thinks fit; or
make an award or order dealing with the matters under appeal.”.
This amendment, varies from a similar amendment moved in the House of Representatives by the Leader of the Opposition (Mr. Menzies) in regard to leave to appeal by either party from a decision of a conciliation commissioner to’ the High Court. The amendment moved in the House of Representatives provided for the : right of appeal - on any grounds whatsoever. However, as the Government was adamant or pigheaded about the matter, I thought perhaps it would consider the proposal if the provision for the granting of leave by the court itself were inserted with the object of ‘preventing the ‘cluttering up of the court unneces”sarily. .The Minister for Health (Senator McKenna) accused me of having shifted my ground in regard to conciliation ‘commissioners. That -is not true. The conciliationcommissioners that this measure provides for will not in my opinion be properly constituted “authorities. They will be dictators, -or “ sheep, in wolves’ clothing “. The Opposition puts .forward these .proposals ^sincerely. We know that the numbers are against us and. “that the amendment will” be defeated,, but if that “happens, ‘the’ Government “will have to accept the consequences and at least the Opposition will have done everything .possible to induce the Government to see the light. One decision by a conciliation commissioner who is out of -step with the nest could ica-use untold harm to the economy -of this country, -and -provision for an appeal to the Arbitration Court would be as much a safeguard for the employees as for the employers. There is a stupid impression abroad that if one section o£ the community is given an increase of wages that ‘is out of all proportion -of the economy of the country, -that is’ a great achievement. ‘Those who believe that fail to appreciate the effect of. such, a decision on the rest of the community.
The amendment is designed to give parties to a dispute the right of appeal against any decision made by a conciliation commissioner clothed with the powers of a dictator.
– I support the amendment. As the Minister for Health (Senator McKenna) has explained, this bill is more or less of an experimental nature: Furthermore, we- have, been informed, by interjection, d at the conciliation commissioners will ha.ve virtually, the same status as. judges have at the present time. It- has been said that there will be no- appeal against the -decisions of. a. judge.- That is true.However., I maintain that, as the* bill is experimental and :as “the ‘commissioners will not have ‘had ‘the long ‘‘experience of judges, it ‘would be ‘in ‘ the interests of conciliation and th’e -maintenance of .peace in industry ‘if “the amendment, vere accepted. The need for a right of appeal was shown by the recent dispute ‘in Victoria, which was. -largely due to the fact that the parties had no right .of appeal against the decision made by Mr. -Mooney, the commissioner who dealt with that ease. In the end, -the parties had to be called, together -so that Mr. “Mo’oney’s decision could *be reconsidered.” The amendment is not designed to assist employers only. History has shown -that, -in many cases, -it is to the advantage of employees to -have the right -of appeal against the decisions of arbitrators. I ask the Minister to consider the -amendment ‘carefully on the ‘grounds that I have stated. He -has admitted that the bill is more or less exprerimental, ‘-and I ask ham to ‘have regard- for the lesson of the recent ‘dispute in- Melbourne-.
.”“I ‘draw the attention. “of Senator “Cooper to the ‘fact that the decisions given by the conciliation commissioner in the metal trades dispute in -Victoria, Mr. Mooney, was s’u’bject ‘to appeal ‘The Industrial Peace Regulation’s merely interpolated during the period of war certain new provisions and’ sections in th’e existing ‘Commonwealth ‘Conciliation an”d Arbitration Act. I refer the honorable senator to* section- ‘31 a of “the- act, which states plainly- (.’L.) Aft appeal’ shall -lie to ‘the court constituted by the: Chief Judge and not’ less than two other, judges’ against any provision’ in any a ward or order of a conciliation commissioner or a. conciliation ‘committee. . . .
The trouble in Victoria did not arise because there was no appeal from Mr. Mooney’s decision,. Provision for such an appeal is contained in the section to whian I have just referred.
Senator Sheehan Will that provision, be eliminated’ by the bill ?
-A.-Yes. It? was inserted by the Senate against the will of the Scullin Government1 in 1930: It will he eliminated.- The Government recognizes that there- are two strong viewpoints’ in relation to appeals and that only time will tell which of the two is right. Past experience has indicated the wisdom of trying out this new provision. I repeat that the appellate jurisdiction ofthe Arbitration Court will be strengthened very considerably by the bill and that the High Court will retain a certain over-riding jurisdiction. It is necessary for the High Court to retain such power in order to ensure that the Arbitration Court and other bodies remain within the bounds of the Commonwealth Constitution. That requirement is not abrogated.
Question put -
That the words proposed to be left out (Senator McLeay’s amendment ) be left out.
The committee divided. (The Chairman - Senator T. M. Nicholls.)
Question so resolved in the negative.
SenatorMcLEAY (South Australia - Leader of the Opposition) [5.32]. - I move -
That, in proposed new section 43g, subsection (1.), paragraph (6), after the word “ employee the following words be inserted: - “ (including a person who is iregularly employed as an industrial officer)”.
Paragraphb of sub-section 1 of the proposed new section states -
A party (not being an organization) may be represented by -
The Opposition is anxious to insert in sub-paragraph i. the words “ (including a person who is regularly employed as an industrial officer)”. Many organizations in secondary industries and in rural industries are not registered as organizations under the Commonwealth Conciliation and Arbitration Act. I have not been able to discover the reason why they are not registered. I know that there must be hundreds of such bodies throughout Australia. In this connexion, section 59 of the existing act, which was mentioned by the Minister for Health, is interesting. As I interpret that section, it is not very easy to secure registration. The section states -
The Registrar shall, unless in all the circumstanceshe thinks it undesirable so to do refuse to register any association as an organization if an organization, to which the members of the association might conveniently belong; has already been registered.
I refer to the various Chambers of Manufactures which exist throughout. Australia.. It is well known that, in spite of the fact that these organizations have a federal body; the State organizations have industrial officers regularly employed to deal with industrial matters. This is due to the large area of Australia. I am informed that so far as the chambers of manufactures in Australia are concerned, the only chamber that is registered is the Victorian chamber. I have been requested: by the Victorian Chamber of Manufactures and the various State chambers, the Chamber of Commerce and its various State chambers, the South Australian Builders and Contractors Association and other organizations to make a plea to the Government to alter this clause so that the industrial officer regularly employed by them will have the right to appear before a conciliation commissioner. I know that solicitors and barristers are barred, but where an organization has an industrial officer who is neither a solicitor nor a barrister he will -according to my interpretation of the clause - be disqualified from appearing before a conciliation commissioner. Furthermore, conciliation commissioners are to be appointed for all States of Australia and it is quite possible that cases will be heard simultaneously in more than one State. I understand that it is a sheer impossibility to get men with experience of industrial arbitration to appear, and F desire , to place on record the request of the South Australian Builders and Contractors Association. Their letter states -
This matter is of very great concern to my association and to al] other associations of the master builders in the Commonwealth with the exception of the Master- Builders Association of New South Wales which is a registered association.
The amendment will preclude the industrial officer of this association from appearing before the conciliation commissioner on behalf of members of this association unless this association becomes registered in the court. 1
That is a statement of the facts so far as the various master builders associations in Australia, are concerned. I understand that these bodies have made direct representations to the Minister for Health (Senator McKenna) and the AttorneyGeneral (Dr. Evatt), pleading for an alteration of the bill so that some concession will be extended to them to overcome their difficulty, and T. urge that he give sympathetic consideration to their request.
The Associated Chamber of Manufactures of Australia in a letter to the Attorney-General, dated the 28th April, 1947, summarized their case as follows: -
In regard to paragraph (4) relating to the exclusion of the appearance of solicitors, counsel and paid- agents before conciliation commissioners, we would point out that most manufacturers these days are members of an association or organized body such as the Chamber of Manufactures, the Metal Trades Employers Association, &c. So far as the Chambers of Manufactures are concerned, only one chamber - the Victorian Chamber of Manufactures - is registered as an “organization” under the Arbitration Act.
This means that so far as manufacturers who a.re members of the various Chambers of Manufactures are concerned, only those in Victoria could be represented by “ a member or officer of an organization “ within the meaning of section 43r (1) (6) (ii) of the amendments to the Arbitration Bill. In other words, the bill contains no provision for representation of members of Chambers of Manufactures in all other States apart from by an employee of that manufacturer concerned.
The general practice in the past has been to allow the representation of manufacturers in court and before conciliation commissioners by officers of State chambers, which are not registered organizations under the act, and we consider that it would cause great inconvenience and hardship to such manufacturers if the existing practice in this regard were discontinued.
I understand that the same position applies so far as the federal council of the Graziers Association is concerned, and that there are scores of organizations representing rural groups which have their own employees who appear as industrial officers. Because these officers are not. registered to appear before the Commonwealth Conciliation and Arbitration Court they will not be able to appear before any of the commissioners proposed to be appointed.
I trust that the Government will do something to overcome the difficulties 1 have outlined. T. have not stated the case so- far as the trades unions are concerned, but presumably they will be similarly affected.
– T think that there has been much ado about nothing. The position has not altered substantially since ]!J04, when section 27 of the Conciliation and Arbitration Act enacted that barristers and solicitors were prohibited from appearing before a. court or before a conciliation commissioner “except by consent of all the parties or by leave of the President”. The provision in this bill is, therefore, substantially a reenactment of the relevant provision in the original act. In 1910 the section was altered and the prohibition was extended to include a paid agent. In 1938 a further provision was inserted stating that ‘ no party shall be represented by counsel or solicitor or ‘by paid agent except by leave of the court”. In 1940 the section was further amended, the words “ or by “ being deleted and the word “ and “ inserted. That amendment was intended further to discourage legal representation. Honorable senators opposite know that barristers, solicitors, and paid agents have enjoyed an enormous practice in the Arbitration Court, and I have no doubt that, when major matters arise for determination involving fundamental principles, statements of account and matters traversing the economy of this country, employers and employees will still find it necessary to engage expert assistance. I emphasize the fact that professional representation has always been, possible with the consent of the parties and by leave of the court. So far as the court is concerned the position is not altered by the bill. Now that we are giving a new emphasis to conciliation we want to eliminate from that jurisdiction all elements of legal and tactical manoeuvring by persons retained to placate their clients rather than to conciliate the other party. The measure of efficiency that is applied to lawyers and professional advocates in a jurisdiction such as this is completely foreign to the spirit of conciliation, and f agree with what the Leader of the Opposition (Senator McLeay) said last year when he urged that it was desirable to bring employers and employees together. [ agreed with him then, I agreed with him the other day, and I agree with- him now. I think that it is a logical deduction from those premises to say : “ Let us eliminate all the people who are sent into the courts to fight on , bell alf of their clients, whether they be barrister, solicitor or paid agent of any kind, and let us bring the actual parties together “. If there is any. hope for conciliation that hope can be realized only in the way that the Leader of the Opposition himself suggested, namely, in an atmosphere where employer meets employee without formality, and where they may freely confer without the intervention of professional advocates, who measure their ability by how little they give away and how much they receive. That atmosphere is completely foreign to conciliation, as we. on this side of the chamber understand it, and we are adopting the suggestion made by the Leader of the Opposition that we should push everybody else out of the way so that we can bring face to face the employer and employee.
If I am not mistaken, it was the Leader of the Opposition who said, during the last few days, that there should be a “ peace iri industry “ conference. He is reported as having importuned the Prime Minister (Mr. Chifley) to adopt the suggestion that was on the tapis some twelve months ago. If there is any value in that suggestion there is infinitely more in bringing together the employer and employee in the very establishment where a dispute occurs and in any particular sec tion of industry where trouble develops. I have no doubt that a “peace in industry “ conference held on the’ highest levels would achieve some good because it would undoubtedly promulgate some sound principles; but the real work that has to be done to achieve permanent peace in industry can be accomplished only when employer and employee sit around a table and discuss their difficulties informally and without recrimination. That is the keynote of the Government’s policy in this matter. Whilst I accept the suggestion of the Leader of the Opposition that there should be more conciliation in industry, I regret that I cannot accept his amendment, and 1 point out that in strict fact it is quite unnecessary. If he will refer to sub-para i of para b of sub-section 1 of proposed new section 43g he will see that it is provided that a party, not being an organization, may be represented “by an employee of that party. The honorable senator’s amendment reads - “ including a person who is regularly employed as an industrial officer “. If such a person is regularly employed in any capacity, he is an employee.
– Would that be so if he acted for more than one firm or organization ?
– No. The honor- . able senator’s amendment refers to a person “who is regularly employed”. It therefore refers to an employee. If he has in. mind a person who acts for more than one firm or organization, as his interjection suggests, his amendment should refer to a person “who is regularly engaged “. There is a degree of intermittency about a person who is engaged ; he might have a series of separate engagements.
– I am willing to amend my amendment by substituting the word “ engaged “ for .the word “ employed “.
– I can understand that; but I regret that I cannot reciprocate and say that I am willing to accept the honorable senator’s amendment as he would amend it. I have already given my reasons for not accepting his amendment.
Reference has been made to chambers of manufactures and similar ‘bodies, but
I fa LI to understand how any such body could be registered as an. industrial organization or’ as an ‘organization of employers:’
– They have difficulty in getting registration.
– I can understand that.’ The point is whether they come together as employers iri- particular’ industries or whether they represent industry at large. As chambers of’ manufactures represent industry at large, rather than particular industries; they a re not employers in industry but rather an aggregation of employers at large. If bodies of employers desire to form organizations to protect their interests, I suggest that they seek registration with the Arbitration Court before they ask. the Government to break aWay from a principle that it believes should be established.
.- It would appear that the- Minister’ is a daw ant. He. now makes- the suggestion that organizations of employers should seek registration with the Arbitration’ Court. I understand that section 19 ‘ of the principal, act prevents certain’ organizations from being registered with the Arbitration Court. If, however, the Minister thinks that they should be registered, and should take steps to that end, will the Government amend the law to make that possible?
Whenever’ I speak of conciliation or conciliators the Minister immediately says that that is provided for in the hill. Doubtless; he refers to that dual personality, the conciliation commissioner, who will be 1 per cent: -conciliator and 99 per cent, dictator. If a conciliation commissioner calls the parties to a dispute together he may act as a conciliator for five minutes. Failing immediate success in that capacity, he can adopt the role of a dictator and deliver a judgment provided, of course, that’ it is acceptable to the Chief Judge. Some of these organization’s will find it impossible to obtain industrial officers who .will meet the’ requirements of this legislation, because numbers’ of ‘ organizations will be making claims at the same’ time and a considerable number of such officers will be required; If this measure’ provided only for conciliation, I should agree thatpaid agents- should.’ he kept out, but it. goes beyond conciliation.
.. - Under” the Victorian wages board system, which is a form of” conciliation and arbitration, neither employers’ organizations noi- organized industrial workers were originally represented. Trade unions could not utilize the services of a trade union official to assist in presenting a case to a wages board. Later, certain, employers appointed from among themselves representatives who were actually engaged in- the industry affected by a claim. Thereupon the. organizations of” workers adopted a similar clause. The result was that both sides to the dispute were represented” by- persons actually engaged in the industry concerned..
– Who was chairman?.
– The chairman, was an independent person, who was not a judge- or a legal man. In many instances, the chairman was a justice of thepeace or a police magistrate. In Victoria it is not necessary for” a police magistrate to be either a barrister or a solicitor. Despite the ramifications of the .Commonwealth Arbitration Court, Victorian wages boards deal with large sections of industry. If employers believe that they should be represented at* hearings before conciliation commissioners they shouldselect’ from among themselves some person or persons to represent them. In that way their views could be made known in an atmosphere of conciliation, rather than in the strained legal atmosphere associated with paid agents acting, for their clients. I have had experience of” the Victorian wages board system, and there is nothing in it of which honorablesenators opposite need be afraid’.
Sitting suspended from, 5.58 to 8 p.m.-
– I have nothing to add to what I said before the sitting was suspended. I can only hope that the Minister in- charge of the bill is- now in a better frame of mind. If he- is not, the- Opposition has done all iti can do to effect the- improvement which. I .propose.
Question put -
That the words proposed to be inserted (.Senator McLeay’s amendment) be inserted.
The committee divided. (TheChairman - Senator T. M. Nicholls.)
Ay es . . . . 10
Majority . . . . 6
Question soresolved inthe negative.
– I move -
That, in proposed new section 43s, subsection (3.), the words “ a person or authority specified by the Court or Conciliation Commissioner has certified thatthe employee is unable to earn the minimum wage “ be left out with a view to insert in lieu thereof the following words : - “,(a) a person or authority specified by the Court or Conciliation Commissioner has certified that the employee is unable to earn the minimum wage; or “ (b ) the employer and employee have entered into an agreement in writing for the payment of the lower rate “.
The amendment means thatanemployee and employer may enter into an agreement in writing whereby the employee may be paid less than the basic wage. I have in mindin particularconditions in She shearing industry. When, because of old age or physical unfitness aman may not be able , to do a full measure of work, provision shouldbe made whereby the partiescancome to the arrangement I have indicated. This provision is em bodied in the lastawardtobe made for the pastoral industry. Honorable senators will appreciate that very often a man comes to a shearing shed and wishes to earn his keep, or a few pounds, but. for reasons ‘of the kind I have mentioned, he is not capable of earning the basic wage. In such circumstances, it should be possible for the employer and employee to enter into an agreement as to the rate of remuneration to be paid. The clause provides that before such an. arrangement can be made the employer and employee must obtain the approval of a person authorized by either the court or a conciliation commissioner. In isolated areas this would involve the parties in unnecessary expense and delay. Generally speaking, the provision in the existing shearing award has given satisfaction.
– I regret that I cannot accept the amendment, because it would negative the whole purpose of the change proposed to be effected in the law. Experience has shown that an employee who is under : a disability, whether it is physical or otherwise, is at a very grave disadvantage in negotiating forwork; and it has been found particularly in the rural industries that employers have taken advantage of a man’s disability, or evenslightdisability, to engage him at far less than award rates. The clause is designed to soe that justice is done between the employer, who is in the superior position, andthe employee who may be suffering from a disability. If I were to accepttheamendment, the position would be entirely the reverse of what the Governmentseeksto set up under the bill. It is not a case of bargaining where one man is under a disability and the other is not, but of another interposing to see that justice is done. The Government will not give way on this matter. It has a good deal of information with respect to irregularities under the law as it stands at present. The Leader of the Opposition (Senator McLeay) will understand that his amendment is a direct negative of the clause.
Question put -
That the words proposed to be left out (Senator McLeay’s amendment) be left out.
The committee divided. (The Chairman - Senator T. M. Nicholls.)
Majority . . . . 9
Question so resolved in the negative.
Clause agreed’ to.
Clauses 9 and 10 agreed to.
Clause 11 (Recovery of wages).
.- This clause. I understand, provides that an employee may within a period of twelve months apply to the court for the recovery of wages. That, period is not long enough. In Tasmania there are numerous minor employers who work their men normal hours during the day and then employ them in shops at night. I know of a market gardener who employs a man during the day in his gardens, and then. ] puts him in has shop on Friday nights, :-‘nd also, I understand, on Saturdays. I n most cases employees who are- called upon to work overtime in this way do not, receive any extra wages.’ Fearing dismissal if they claim overtime, they usually wait until they are dismissed or decide to leave before taking action to recover the extra money due to them. An employee might continue his employment for three or four years before getting an opportunity to claim overtime. I know of a man who worked overtime . for his employer, but received no payment because he was afraid to ask for it. Labour was not scarce at that time, and he feared losing his job. I told him to keep a record of the overtime that, he worked. This went on for two years, but as the limit for recovery was six months, he could only claim for that period. I am sure that the Minister for Health (Senator M.cKenna.) ‘will give sympathetic consideration to this matter, because he agrees that twelve months is not long enough. In fact, two years is not long enough. In my view, no time limit should be specified. When employment is scarce some men will work overtime for nothing, and when they lose their employment they cannot sue in the courts for money owing to them beyond a period of nine months under the present law.
– Early last, year I did express myself in this chamber in favour of the application of the statute of limitations to. the recovery of wages. This would have permitted action to be taken any time up lo six years after a. debt, had been incurred. In recent months, however, .1 have changed my views on the matter. With other Ministers, I attended many conferences with representatives of employers and. employees. Representations that the time for recovery be limited to twelve months were made by one of the most powerful unions in Australia. That union had found that, in rural centres in particular, men were working for less than award rates quite knowingly. In the larger centres of which the honorable sena tor speaks, such as Launceston, this difficulty really does not arise because employees know their rights. Union organizers are amongst employees all the time, and it, is unthinkable that there could be anybody in a. major centre who would not be aware of his rights or would not bc told of them within twelve months. The aim of this provision is to prevent’ men knowingly, and in defiance of awards and union principles, continuing year after year to work for less than award rates. The period has been limited to twelve months at the request of industrialists although, considering the matter apart from actual experience, one might, be inclined to think that the term should be the same as that prescribed in the statute of limitations, namely six years. The Government gave’ a very mature consideration to the representations made to it and accordingly has limited the time to one year. Tn rural centres, of course, organizers cannot get around employees m easily us they can in the cities, but we were assured that every employee would bc co n tac ted in the course of one year, and we feel that the provision limiting lim time in which arrears may be recovered to twelve months is reasonable having regard to all the circumstances. Until 1930 the limit was six months. The Scullin Government proposed to extend rite period to twelve months, no doubt actuated by the considerations that have now altered my own personal view, but the Senate objected and a compromise was reached on nine months. Therefore, this measure does what the Scullin Government proposed to do in 1930. and for the reasons that .1 have given to the committee!
.- I should like ro know whether this provision applies to wages as well as to overtime. If ti man’s wages are not claimed within the prescribed twelve months, and be continues to work for, say, two years, will he be denied the right to recover his money?
.- Section 49a Of the principal act provides -
An employee entitled to tl,e benefit of an award may at any time within niue months from any payment by way of wages in accord.ance with the award becoming due to him but not. later, sue for the same in any court of competent jurisdiction. 1 draw attention to the word? “tiny payment by way of wages in accordance with the award becoming due to bini . . .” If an award makes payments accrue from week to week they would lapse at the end of twelve months unless the employee complied with that provision.
– But that is unfair.
– It is most unlikely that an employee would allow his wages to accumulate for twelve months without claiming them. Also, if that were a matter of honorable pact between employer and .employee, it would be a very rare case where an employer would lie so dishonest as to take advantage of I hat section. Surely twelve months is sufficient time for employer and employee to resolve a matter that, relates to one week’s wages, because that is really what it means in effect.
Senator AYLETT (Tasmania) ‘[8.25 1. - I. raised this matter in my secondreading speech. I should like to know whether there is any provision for the imposition of penalties upon employers who deliberately floi.it awards. An employee should have become thoroughly acquainted with the award under which he is working within twelve months; but .1 remind the committee that Commonwealth industrial inspectors, have been responsible for the recovery of huge amounts of wages consequent upon the flouting of awards by employers. At present the period of recovery is nine, months. This measure will extend it to twelve months’, but as these abuses have occurred in the past, there is no reason to believe that they will not continue in the future, lt is most unjust to allow an employer who has flouted an award for say two years to enjoy the benefit of having underpaid an employee -for twelve months. The employee may be as much to Marne as the employer, but the deliberate flouting of the law is not fair to fellow employers and fellow employees. I believe therefore that some penalty should be imposed upon an employer who wilfully desregards an award. His obligation should not be discharged merely by making restitution of wages withheld for a period of twelve months.
Senator LAMP (Tasmania) [8.26J.- I have been requested by the Launceston Trades Hall Council and the Hobart Trades Hall Council to protest against this provision. These organizations believe that the period allowed for recovery is too short because of the peculiar circumstances of industry in Tasmania. I have in mind a recent case in which an employee recovered £1.7 from an employer for back wages, whereas he- was actually entitled to more than £60. In the opinion ‘ of the two councils the present proposals are inadequate, and I ask that the matter be postponed to give the Government an opportunity to see whether the period cannot be increased to at least two years.
.- Section 49 of the principal act provides; -
No person shall wilfully make default in compliance with any order or award.
Penalty: Twenty pounds.
As nearly every award provides for weekly payments, failure to pay wages for a year would represent 52 separate defaults, each of which would render an employer liable to a penalty of £20. So there is ample provision in the act to impose a heavy penalty on an employer who fails to carry out the terms of an award. The section that I have just quoted is also facilitating recovery under the proposed new sub-section of section 44which states - (3.) Where, in any proceedings against an employer before a Court specified in subsection (1.) of this section,it appears to the Count that an employee of that employer has not been paid an amount to which he is entitled under an order or award, that Court may order that the employer shall pay to the employee the amount ofthe underpayment but no order shall be made in respect of so much of the underpayment as relates to any period more than twelve months prior to the commencementof theproceedings.
The two points amount to this : Heavy penalties in respect of each week or each pay period of an award, may be imposed upon an employer who fails to make the payments, and in the course of the proceedings in which the employer is being prosecuted, the magistrate or the court may simultaneously order the payment of arrears up to twelve months only. I believe that this is a reasonable provision. It was thought to be so in 1930. As I have said, the Government has given mature consideration to this proposal, and it is because of strong and well supported representations that the period has been limited to twelve months. I argued quite strenuously in favour of a period of six years, but after hearing of the difficulties arising in the outback areas where it is not easy for a union representative to meet employees regularly, I am quite convinced that this proposal does real justice.
– In his explanation, the Minister used a word that in the past has always given the employer an avenue of escape. I refer to the word “may”. I want to know who is to take the initiative in launching prosecutions for offences against awards. Will action be initiated by the union whose member is affected, by the inspectors, or by the Arbitration Court, to secure a penalty against an employer who deliberately flouts an award? In the past, awards have been deliberately flouted by employers and the unions whose members have been defrauded have had to , go to the Arbitration Court to recoverarrears of payments. In so doing, they have had to expend their funds and fight against strong opposition. In such instances, no penalties have been imposed upon the offending parties. They havebeencalled upon only to pay the money owing to their employees. I consider that’ the use of the word “ may “ in the penalty provisions has allowed them to escape just punishment. This word gives the court discretion regarding the imposition of penalties. As a specific instance, I cite the timber workers’ case.
– Default in payment of money due under an award is an offence for which anybody can lodge a complaint and institute a prosecution. Sub-section 1 of section 44 of the act provides penalties for breaches for nonobservance of awards. Sub-section 2 of that section is of particular interest to Senator Aylett. It states-
Any such penalty may he sued for and recovered by -
the Registrar; or (aa) an Inspector appointed under this
This means that almost anybody in the community may institute proceedings. This provision will be tightened up by clause 13 ofthe bill.
– Only, if- the award has a, com mon, rule effect:
– An attempt is being made in this bill to implement an award ‘as a common rule, although’ up to date, it has not been possible to. achieve that result. Th’e High’ Court, as long ugo as 1910, in the case of the Austraiian Bool Trade v. Whybrow, declared against a, section of. the existing, act which attempted to empower.- the Arbitration Court to ) declare, a common . rule. As- a result’ pf.’ this, bill, any. interested’ person, may launch i a prosecution against - an offending- employer -and, in the course, Ofthat , prosecution, as. the - result of the amendment to section. 44) proposed ‘ in clause- 9 of the. bill,- the court may; without i any-, further.- parley- or proceedings, make air Under for payment to. the employee, concerned.. The. position will be further, tightened by the proposed new section contained in clause.. 13, which states -
Senator LAMP. ( Tasmania. [8.34] .-The prosecution of employers for breaches of awards can be ensured by providing -that inspectors shall do their work thoroughly. Only to-day . I. received a. letter from a man, who wrote, “Please don’t mention my name in this. case “. . The fact is. that the fear. element still exists . amongst the workers even in these prosperous times… In the past, .inspectors , have not done their work . satisfactorily… If inspectors ap? pointed under- this bill are made to do their work properly^ the fear element .will be eliminated and employers will be prevented from paying men rates lower than those’ prescribed in their awards’. I:hope that the Minister will :give an assurance that sufficient inspectors will be appointed to- enable their work to.be done thoroughly ,ina well.
– I am in a position: to give, the assurance sought by the honorable senator. It iis proposed to strengthen the: position of inspectors. This point was mentioned in my second-reading speech. The assurance I- have given should ‘serve to- overcome any doubts- that the honorable -senator, may have in this regard.
. –^Sometimes- there, is a difference of opinion as. to the. exact meaning of an award.- Such differences-: arise -in industries in, which thora is a very fain* line of demarcation- between different types of work. Arguments, develop, as to- .whether certain work .should be paid for at one award rate or at another award.ra.te. Such disputes may take some time to reach an authority competent to determinethem. There is a provision in -the bill which will ‘ enable local boards to deal with such matters which are referred tothem. The existing- act also enables Boards of Reference to clear up- disputesbetween employers- and employees- in matters of interpretation: In the railway service- of ‘ Victoria, a Classification Board ‘ was established-, and after the- union became registered with’ the Commonwealth Arbitration Court -and applied for Commonwealth’ arbitration awards,, the -court used- ‘th’e- services of that board for the purpose of investigating conditions of ‘employment .and so forth. The board still exercises its authority as a State, instrumentality in cases in which the- union is unable to prove that :a disputeis of an interstate character. Disputes regarding’ the appropriate rate -of pay for a certain class of work may not arise until an-‘ award ‘ has been- in operation for twelve months ‘or more. Then, the tribunal to -which’- the dispute-is referred may take another twelve months, to reach adecision . I have known- cases in whichrailway ‘men have been awarded higher rates- of pay than they had- ‘been receiving, the-decision being retrospective for a period of eighteen- months.- -Such anomalies have occurred, not because ‘the Railways Commissioners desired’ tounderpay th’eir i employees, or because-thc employees -deliberately worked at a -lower rate- than that fixed bv* the award with the object of claiming back pay at a later date, but because there was a difference of opinion regarding the interpretation of the award. Will the Minister give an assurance that, in circumstances such as I have mentioned, men will not be debarred from receiving money 10 which they are rightly entitled for periods of more than twelve months? I have no sympathy with men who deliberately take advantage of employers who are hot am, fait with industrial ;i wards by working for a number of years al; low rates and then prosecuting for amounts that are outstanding. However, I. seek an assurance that the interests of employees will be safeguarded in cases where claims for back pay are legitimate, and where the difficulty arises from inability to agree upon the exact meaning of an award.
– The honorable senator showed that he realizes that the function of interpreting an order or award is necessarily reserved to a. court because it is essentially a judicial task. It will not be competent for an arbitrator to interpret an award. Such questions must go to a court. That is provided throughout the bill. In the circumstances envisaged by the honorable senator, when an appeal or hearing is pending in a superior court as to the interpretation of a particular clause in an award and time is running out against men who are awaiting a decision, the men may protect their rights merely by issuing a complaint against their employer and letting it rest pending the pronouncement of the judicial body. Ti the interpretation given ‘by the court is against their view, they may simply discontinue their action. It is very easy for men to take proceedings in a court of inferior jurisdiction. The mere lodging of a claim protects their rights, even should the delay in obtaining an interpretation from the superior court extend to two years. In view of the fact that appeals, even in relation to matters of interpretation, will in future be limited to the Arbitration Court-a court that. is skilled in that jurisdiction - I do not expect that there will be any long delays. Questions of interpretation arise when actions are brought in inferior courts for the recovery of wages, for breaches of awards and for “offences against awards, and, as a result of this bill, appeals from such courts will be made direct to the Arbitration Court. Therefore, I do not expect any long delays in relation to interpretations. Howe ve] , should there be delay, the men may protect their interests as, I have explained.
– Am I to understand that, if there is. a dispute regarding, the rate of pay applicable to a certain class of work, the matter must be determined by a judge? Consider conditions in the engineering industry. In that industry there are firs-class machinists, second-class machinists and third-class machinists. The men who operate drilling machines are also classified in that way. Sometimes arguments occur as to whether certain work should be paid for at the rate provided for firstclass machinists or at that provided for second-class machinists. Such disputes occur time after time. The margins between the various classifications are not very great. I cite a hypothetical case. A union secretary goes to an employer and says”, “ The work that Jack Brown is doing should be paid for at the rate for first-class machinists “. The employer replies, “No, I think it is secOnd-class machinists’ work”. An argument develops. Does the Minister say that, in such an event, it is necessary to invoke all the machinery of the Arbitration Court in order to obtain a clear decision? I have strong faith in conciliation commissioners as opposed to judges. Generally speaking, judges know nothing about the details of a trade. My faith in conciliation commissioners depends upon the fact that they will have practical knowledge of particular industries, and that, because of their association with such industries,, they will be able to settle disputes of the character I have mentioned on the spot. Surely the parties will not have to go to the Arbitration Court to obtain an interpretation in such a dispute.
– Nothing that could be included in this bill would alter the fact, that interpretation of an award is purely a matter for judicial decision. But I do not think the honorable senator need be disturbed. It may be that a dispute as to whether an employee comes within a certain category resolves itself into a question of fact, in which case there is no question of law to be decided, so that judicial interpretation is not required. But invariably the conciliation commissioner, although he cannot exercise the judicial function of interpreting an award, expresses ah opinion. That opinion is not binding, of course, but it is usually accepted by the parties. Again, if a commissioner finds himself in difficulty he can simply amend an award, and he has complete power of amendment. I feel that in those circumstances the honorable senator need have no misgivings.
– I assume that the proposed conciliation commissioners will have power to determine rates of pay for particular categories of work–
– Order! The committee is discussing clause 11, which covers wages.
– I mention this matter in discussion of that clause, because the point I am endeavouring to impress upon the Minister is that because of delays and difficulties a worker may not exercise his right until twelve months have elapsed from the time his grievance commenced. He would then lose his rights, I assume that the conciliation commissioners will be empowered when they make awards to specify the rates of pay to be awarded in an industry.
Clause agreed to.
Clauses 12 to 15 agreed to.
New clause 15 a.
– I move -
That, after clause15, the following new clause be inserted: - “15a. Section sixty of the Principal Act is amended by inserting in sub-section (1.), a fter the word ‘ of ‘ ( first occurring) , the words the Attorney-General or of ‘. “.
In the House of Representatives the honorable member for Fawkner (Mr. Holt) was successful in persuading the Attorney-General (Dr. Evatt) to accept an amendment to section 60 and he intended, later, I understand, to move a further consequential amendmennt, but because of the expiration of the time allotted for the committee stage of the hill, he did not have the opportunity to do so. The amendment I am now proposing is, in effect, the consequential amendment he intended to move. Subsection (1.) of section 60 would then read -
If it appears to the court, on the application of the Attorney-General or of any organization or person interested, or the registrar . . and so on. The sub-section would then provide that the persons named could make application for cancellation of the registration. I understand that the Attorney-General said that he was under the impression that the Attorney-General had that right, but a recent court decision was to the contrary.
– I am not aware of the decision in the case to which the honorable senator referred. If he can refer me to it I shall be obliged to him. I have discussed the proposed addition with the AttorneyGeneral (Dr. Evatt), and his view is that the power of a person interested to make application of the type set out in section 60 covers the A ttorney-General. I concur in that view. The Attorney-General feels that as a person interested he may sponsor such an application, so that I am not now opposing the essence of the honorable senator’s proposal but, in the view of the Government it is not necessary to insert it.
New clause negatived.
Clauses 16 and 17 agreed to.
Before section eighty-one a of the Principal ‘ Act the ‘ following sections are inserted in Part VII.:- “81aa. - (1.) For the purposes of this Act there shall be a Bureau of Research and Statistics. (2.) The functions of the Bureau shall be -
.- I move -
That, in proposed new section81aa, subsection (1.), the words “a Bureau of Research and Statistics “ be left out with a view to insert in lieu thereof the following words: - “ an Office of Economic and ‘Iudustrial Research’”.
The need for thisamendment arises from a possible confusion withthe Bureau of Census andStatistics.
Amendment agreed to.
Clause consequentially amended and, as amended, agreed to.
Clauses 19 to 29 agreed to.
First, Secondand ThirdSchedules agreed to.
Title agreed to.
Bill reported with amendments ; report adopted.
Motion (by Senator -McKenna) : pro- posed -
That the bill be now read a third time.
.- It is interesting to note that since the Conciliation andArbitration Act was passed in 1904, the act has been amended no fewer than sixteen times. One of the most important amendments was made by the Scullin Governmentin 1930, after ith ad achieved a substantial victory at the polls. In spite of all that has been clone and all that the Government hopes for, something more is needed to bring to an end the industrialwarfare which the country is experiencing. In the last two years, Australia has lost through strikes andlockouts a splendid opportunity to increase its production, and gain overseas markets. It has lost a wonderful opportunity to improve its economic position. That is an opportunity which it never had before, and we have not made the best of it. Obviously, what happened after World War I. will recur. ‘The present inflated priceswill deflate, and the markets whichwill beavailable to this country for the next few years will then be closed to us.I repeat what I said in 1945, namely, that every Minister and every member of thisParliament has a duty to give a lead to employers, employees and the people generally to achieve; peace in industry, and, as far as possible,keepdisputes away from the Arbitration Court and theproposed conciliationcommissioners.I do not say where the fault lies,but unless something isdone along the lines that I have indicated the great bulkof the people of this countrywill experience hardship before long. IregretthatLabour leaders have not seen fit to condemn the actions of those fanatics in the community who are causingso much trouble. The time is ripe for the membersof all political parties to do some clear thinking and straight talking. A good deal of nonsense is talked about a shorter working week and lessened production, but these things can only lead to chaos. I do not say that the faults are all on one side. I believe that all sections of the community should use the opportunities available to them to improve industrial conditions. Employers, as well as employees, must do their part to avoid the troubles which, unfortunately, seem to occur almost from day to day. The present-state of affairs is unfair to ex-servicemen requiring homes andfarms. It is an insultto the intelligence of thepeople that practically a state of civil war should exist. I am glad thatthe Prime Minister . (Mr. Chifley)has saidthathe is prepared to convene a conference of employers and employees with a view to securing , peace in industry. Inmy opinion, that is the best means of solving the problems confronting us, and I hope that something will.be done in that direction. Great opportunities are open to us, but we are not availing ourselves of them.If we realized our responsibilities towards future generations, and adopted a proper attitude towards the Empire of which we form a part, we should be courageous enough to give effect to a principle in which we believe.
Question resolved. in the affirmative. Bill read a third time.
The following papers were pre sented : -
Arbitration (Public Service) Act-Deter- minations by the Arbitrator, &c, - 1947 - No. 26 - Amalgamated Postal Workers’
Union of Australia.
No. 27- Commonwealth Public Service
No. 28 -Amalgamated Postal Workers’
Union and others.
No. 29 - Commonwealth Temporary
Clerks’ Association ; and the Federated Clerks’ Union of Australia.
Nos. 30and31-Fourth Division Officers’ Association of the Departmentof TradeandCustoms.
CommonwealthPublicServiceAct-Appoint- ments-Department -
CommerceandAgriculture-A.C.B. Maiden,G.P.Phillips,P.A.Reid, E.J.Wood.
Cite as: Australia, Senate, Debates, 14 May 1947, viewed 22 October 2017, <http://historichansard.net/senate/1947/19470514_senate_18_191/>.