22nd Parliament · 1st Session
The President (Senator the Hon. A. M. McMullin) took the chair at 2.30 p.m., and read prayers.
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Assent to the following bills reported:
Parliamentary Allowances Bill 1956. Income Tax and Social Services Contribution Assessment Bill (No. 2) 1056.
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– I have received from the Premier of New South Wales a letter of thanks for the message of congratulations sent to the Government and the Parliament of New South Wales on the occasion of the 100th anniversary of responsible Government in that State. I have also received a letter of appreciation from the Speaker of the Legislative Assembly.
DEATH OF EX-SENATOR THE HONORABLE A. J. McLACHLAN.
– I have received from, the nephew of the late ex-Senator Hon. A. J. McLachlan a letter of thanks for the resolution of sympathy passed on the occasion of the former senator’s death.
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– Will the Minister representing the Minister for Defence inform the Senate whether it is a fact that a large amount of the allocation for defence expenditure in this financial year has not been spent? If that is true, will the Minister inform the Senate whether the Government, in making allocations for defence in the next budget, will take into consideration the fact that those allocations have been underspent by some millions of pounds in the past three years?
– I believe the honorable senator is aware that it is very difficult to time the precise date for the expenditure of departmental votes. The Department of Defence and the depart-
8- [SS]
ments administering the Navy, Army and Royal Australian Air Force operate according to a programme, generally covering a period of years. I might mention, as examples, the construction of ships and the establishment and erection of barracks. Sometimes, although the commitment has been actually entered into, the cash is not dispersed because of late delivery of materials or delays in construction. I have no reason to believe that the amount allocated for defence in the 1955 budget will not be expended.
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– 1 preface a question to the Minister for National Development by stating that, during visits to Newcastle, I have heard much criticism of the facilities for loading coal at Bullock Island. I believe- that all coal that is shipped out of the port of Newcastle is loaded at Bullock Island, and that the loading arrangements are inefficient. As there is competition between oil and coal as a fuel, it is important to New South Wales that the coal-mining industry should be efficient. Will the Minister describe the coal-loading arrangements at the port of Newcastle, and state whether the price of coal could be reduced if those facilities were improved?
– The honorable senator has posed a question, concerning coal loading facilities at Newcastle, which necessitates a long answer. It concerns an old story which is known to those who are associated with the coal industry. At Newcastle, the coal is loaded by cranes which, by common consent, are hopelessly inefficient. I think that there are fifteen or sixteen cranes to handle some 3,000,000 tons of coal a year. I think, too, that the most modern of the cranes is about 45 years old, the majority of them having been installed before 1900. The result, of course, is that there is congestion in loading trucks to take the coal to the wharfs, and ships are held up at the port. This has been an open wound for some years. Back in 1951, plans were prepared for improvements which were to cost ?500,000. I think that the New South Wales Government actually spent ?100,000 and then did not carry on with the work. The last that I heard of the matter was that the colliery proprietors had offered to instal cranes themselves if the State Government would not go ahead with the job. As to what effect this situation has on the cost of coal, I do not know, but I should say that, at the least, it would amount to 7s. 6d. a ton.
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– Is the Minister for Repatriation able to inform the Senate whether he has yet arrived at a favorable decision concerning the contemplated closing of the Anzac Hostel, Brighton, in regard to which I have received a number of requests? “Will the Minister give a direction to the Repatriation Commission to restore the free bus service which used to carry nurses between the remote Repatriation Hospital at Heidelberg and the city, particularly during the winter months? It is a well known fact that many nurses have left the hospital because of this unwise decision. Will the Minister consider sympathetically the proposal that the Repatriation Department should arrange for the immediate medical examination of all ex-prisoners of war? It has been reported that nearly 50 per cent, of returned prisoners of war have died.
– I am surprised that the honorable senator should ask such a question concerning the Anzac Hostel at Brighton. When I was there on Friday last I went out to the hostel and interviewed all the patients and staff. Following that, I released a statement to the press to the effect that the hostel would remain open and carry on just as it had in the past.
– I have not read the press, and apparently other people have not read it, either.
– This was a very live question in Victoria, and I am astounded that the honorable senator has not read that statement. In regard to the honorable senator’s question concerning the bus service to the Repatriation Hospital at Heidelberg, I point out that the service was terminated on the 1st November, 1954, over eighteen months ago, for the reason that there was no need for it. There was adequate transport to the hospital. In other States, such as New South Wales, where the Concord Repatriation Hospital is even more difficult to reach from Sydney than is Heidelberg Hospital from Melbourne, it was considered that there was no need to run a free bus service. When the Department of the Army first built the Heidelberg Hospital, the suburb of Heidelberg was not nearly so thickly populated a? it is at the present time, and transport facilities were not nearly so good as they are now. I point out to the honorable senator that the Heidelberg Hospital is not the only hospital in Australia, or in the world, that has difficulty in obtaining staff. However, 1 think that the staffing position at Heidelberg is as good as that of any other hospital, both in regard to the quality of the staff and the length of time that the members of the staff remain there. The staffing position at the present time is perhaps not as good as it might be, but I do not know of any hospital at which the staffing position is as good as it could be. However, the fact that that is so has no detrimental effect on the patients of the hospital. There is a sufficient number of staff, and also a sufficient number of wards open, to provide patients with the best possible treatment. The honorable senator’s third question related to ex-prisoners of war. I inform him that no other members of the forces engaged in World War I., World War II. or the Korean war received such an extensive and thorough examination as was given to the ex-prisoners of World War II. The Repatriation Department got in touch with all ex-prisoners of war with whom it could make contact, and gave them special medical examinations. According to the latest figures compiled in connexion with this matter, there were only a little more than 1,000 of the exprisoners of war whom the Department could not locate. Of course, I am speaking from memory, and the number that, could not be located throughout Australia, including those in the Northern Territory, could have been slightly more than that. All of the ex-prisoners of war who were located were given a thorough medical examination, the result of which is recorded on their medical history sheets. In the future, therefore, there will be available a record of the state of their health on their return to Australia, as nearly as that could be ascertained.
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– My question to the Minister for National Development arises out of his answer to Senator McCallum’s question, and I ask it because of the very great importance of that answer to Victoria. Will the Minister say whether it is true that there is consumed in Victoria about 1,200,000 tons of New South Wales coal each year? If that is true, and if, as the Minister said, a saving of 7s. 6d. a ton could be effected by installing bulk loading equipment, would it not be possible, by installing that equipment, to effect a saving to Victoria of £450,000 a year, with a consequential reduction of costs generally? Am I to understand that New South Wales refuses to make a capital expenditure of £500,000 in order to effect a yearly saving of £450,000 in. Victoria, alone, and is also refusing to allow the colliery proprietors to make that capital expenditure? Is there anything that the “Federal Government can do to prevent this absurd situation from continuing to damage the Australian economy?
– I think that the honorable senator has stated the position correctly. I think I made it plain that the amount of 7s. 6d. was my own estimate of the possible saving, and that it might prove to be accurate. Of course, I was answering a question that was asked without notice. I realize that this is a serious matter for Victoria. It is also a serious matter for New South Wales, because, from the Port of Newcastle, about 3.000,000 tons of coal is shipped each year, and at present the threat to the coal industry from the use of oil for fuel is very real. Victoria is the most competitive market. It is vital to the 18,000 employees of the coal industry in New South Wales that coal shall be supplied at the most competitive price. I should not like to go on record as saying that my estimate of the probable saving is accurate, although it must be a very substantial amount each year compared to the small capital outlay that would be needed to rectify the position.
– -I should like to ask the Minister for National Development a supplementary question concerning coal prices. South Australia is very interested in this matter as it buys nearly 900,000 tons of coal a year from New South Wales. Could the Minister obtain a statement from the Joint Coal Board setting out what the new plant would cost, how much it would be called upon to handle, and the extent to which the board estimates the new plant would reduce the price of coal ?
– I think Senator Buttfields suggestion is sensible. 1: is difficult to deal with these things offhand, and the situation is serious. Itwould be as well if I were to treat the honorable senator’s question as being upon notice, and ask the Joint Coal Board to give me a considered reply so that the Senate can have the facts before it. I am not quite certain of the exact position, but I think the coal proprietors have asked the New South Wales Government to let them install a modern plant. I think the complaint against the New South Wales Government is not that it will not answer “ yes “ or “ no “, but that it will give no answer at all. If the honorable senator will put her question on notice I will obtain a considered reply.
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– My question is directed to the Minister for Shipping and Transport. Has he considered the criticism by the New .South Wales press of the Austraiian Shipping Board’s failure to provide sufficient ships to transport potatoes from Tasmania to Sydney? Is he aware that the lack of regular shipping is seriously hampering the Tasmanian trade in its competition with the New South Wales rice industry? Can the Minister advise the Senate of the present position and of future prospects ?
– If I answer the last part of Senator Henty’s question first, that’ will probably supply the answer to the part of his question dealing with the availability or the adequacy of shipping from Tasmania to Sydney. The current fixtures for Sydney are as follows : - Mernoo sailed from Burnie on the 10th June with 15,000 sacks; Kootara’s estimated time of departure from Burnie is the 14th June with 14,000 sacks; and Mulubimba is to load in Devonport during the week ending the 22nd June and should sail with 10,000 sacks. In regard to Brisbane, Canberra’s estimated time of departure from Devonport, with 14,000 sacks, is the 14th June. As far as Melbourne is concerned, no request has been made for space but the Yanderra is loading timber and paper at Burnie, and could lift a quantity of potatoes if required. Forward arrangements are that Mernoo will load at north-west ports for Sydney 15,000 to 20,000 sacks during the week ending the 7th July and Enfield. which is now discharging 7,000 sacks at Newcastle, will return to Ulverstone for similar loading. The chairman of the Tasmanian Potato Shipping Committee does not require the space which was made available in Kamona next week. That ship is due to sail from Burnie for Sydney on the18th June and he advised that he did not want the space for potatoes. The fixtures already made will cater for all potatoes available. Bad weather conditions are contributing to the slow harvesting of the crop. The normal requirement for Sydney is 15,000 sacks a week, but no more. Mr. Moore, the chairman of the Tasmanian Potato Shipping Committee, has notified the board that he does not require any further shipping fixtures from any Tasmanian port to any mainland port until the week ending the 30th June. No vessel has yet been allocated for that period, but the Tasmanian traffic committee will probably do so next week. This answer constitutes aft emphatic denial of charges regarding the adequacy of the shipping available to lift potatoes for Sydney or other ports.
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– Since asking the Minister representing the Minister for Trade, last week, a question about the dismissal of employees from the fac tory of the United Carpet Mills Proprietary Limited at Preston, in Victoria, I have received information that the firm of Carpet Manufacturers Limited at Harris-road, Five Dock, Sydney, has dismissed 50 employees, and that the remainder of the staff are working only part time. I ask the Minister whether it would be possible to restrict, further, the import of carpets from overseas so as to allow these employees to be re-employed in their industry.
– My best course would be to obtain a reply to the honorable senator’s question from the Minister for Trade, setting out the extent to which existing licensing arrangements apply to the importation of carpets. Obviously, one cannot keep them in mind, but last week I think I made the point that these licensing arrangements can hardly be modified to cover the position at particular factories. They can only apply to the situation as a whole. However, I shall obtain for the honorable senator an answer from the Minister for Trade.
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– I direct a question to the Minister for Shipping and Transport bearing upon the continued terrible loss of life on the highways of Australia, especially at weekends and on holidays when the density of traffic increases on country highways. Will the Minister request the Australian Road Safety Council executive to call a full meeting of the fifteen constituent members of that body to consider, without delay, what further steps they can take to arrest this appalling death rate? Will the Minister consider appointing a member of this Senate as a parliamentary representative to the Australian Road Safety Council, in an effort to inspire a more vigorous campaign of road safety by that body? Will the Minister request the Government to raise this matter at the next Premiers’ Conference and ask the Premiers to consider the desirability of uniform traffic regulations, and more stringent laws to deal with cases of dangerous driving, excess speeding, and driving under the influence?
-I assure the honorable senator that it will not be necessary for me to call a special meeting of the Australian Road Safety Council for the purpose he mentions. I assure him that this matter will most certainly be discussed at its next meeting. The incidence of road deaths and accidents is a matter of great concern and continuing perplexity to the road safety council, which is very much alive to what is happening on the roads. It has been very active in its attempts to reduce the toll of the road, taken in death and injury. I am. not certain when the next meeting of the council will be held, but I say again that this matter will be discussed, as also the results of the special campaign which was launched in New South Wales prior to last Easter in an effort to minimize road accidents over the Easter holiday period. Consideration will be given to whether similar campaigns may profitably be launched in other States. I say, with respect, that I do not think the appointment of a senator to the Australian Road Safety Council would do anything to quicken its interest in its own work. I pay a full compliment to the road safety council, many members of which work in an entirely honorary capacity, and do a splendid job. However, I will consider the suggestion, and if there is any method by which the field of interest in this problem can be broadened I shall be most interested to hear about it. I shall also consider the suggestion that this matter should be placed on the agenda for the next meeting of the Commonwealth and State Ministers, but my first reaction is that such a course would not be necessary. One of the continuing tasks of a subcommittee of the Australian Road Safety Council is to send progress reports to all the States, and receive back from them reports upon the headway that each State has made in implementing common standards of safety throughout Australia. However, I shall consider the honorable sena tor’s suggestion.
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– Will the Minister representing the Minister for Immigration give the Senate an assurance that before the present sitting ends he will bring forward a report about the allegations of forged passports or vises used by persons coming into this country? Will he also advise the Senate of the nature of the inquiry that is being made, what progress has been made in it, and how widespread has been the use of forged passports or visas?
– I shall bring the request of the honorable senator to the notice of my colleague, the Minister for Immigration.
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– My question is directed to the Minister representing the Postmaster-General, and by way of explanation may I say that the Postal Department recently undertook to deliver unaddressed letters throughout South Australia under its householder service. Those letters contained information about a Tasmanian lottery, and without going into the merits of the matter, may I state that lotteries in South Australia are illegal. The fact that this information from Tasmania has been delivered to householders in South Australia to encourage them to contravene State laws has proved offensive to many South Australian citizens. Will the Minister examine the regulations concerning bulk postage under the householder servicewith a view to ensuring that the service cannot be abused in the way that I have indicated ?
– I shall be very pleased to bring the matter that the honorable senator has mentioned to the notice of my colleague, the PostmasterGeneral, and obtain a considered reply from him.
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– Has the Minister for the Navy seen the Melbourne newspaper which to-day announced that legislation was likely to be rushed through the Senate this week like mincemeat through a sausage-making machine? If he has not seen the newspaper, will he accept a copy from me so that he may note its contents ?
– I have not until this moment seen the report referred to by the honorable senator.
I believe that the statement constitutes a most unbecoming reference to this chamber, and I assure the Senate that it shall be given every opportunity carefully and thoroughly to consider any legislation that comes before it.
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– My question to the Minister for National Development is supplementary to the other questions that have been asked about coal. Is it a fact that the port of Gladstone, in Queensland, can load 6,000 tons of coal in 24 hours with only one man working? Is it also a fact that this coal compares favorably with New South Wales coal? Does the Minister agree that there is little difference in freight on bulk cargoes from Gladstone to Melbourne and from Newcastle to Melbourne? Could not some of the coal required by Victoria and South Australia be obtained from Queensland at a cheaper rate than New South Wales coal, and thus assist our Queensland mines?
– I think that 1 have done fairly well to answer already three questions on this subject. I am afraid that Senator Kendall’s nautical knowledge is a little above me. However, I know that the port facilities at Gladstone are very modern and effective, and it is through them that Callide coal has become available to other States of the Commonwealth. As for expressing an opinion about the merits or demerits of various types of coal, I ask to be excused.
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– I ask the Minister representing the Minister for Primary Industry whether he has noticed the recent press report that a Queensland grazier has overcome his shearing problems by using a spray that eliminates the employment of shearers? Will he bring this article before the notice of those shearers who have refused to accept the new shearing award so that they will not share the fate of the coal-miners, who, through similar militancy, killed the goose that laid the golden egg?
– I have seen the press announcement of this most interesting development. I do not doubt that my colleague, the Minister for Primary Industry, has also noticed it. 1 do not doubt either that he will make the best possible use of it in his endeavours to settle this unfortunate dispute which has been going on for so long.
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– Can the Minister for National Development state whether in his opinion the Snowy Mountains Hydro-electric Authority is satisfied with the work which it is doing to prevent erosion in that part of the catchment area which is under its control? Is the Snowy Mountains Hydro-Electric Authority satisfied with the anti-erosion work being done on that part of the catchment area which is not under its control? If it is not satisfied with th: work being done in that part of the catchment area which is not under its control, has the Commonwealth taken any steps by which that authority might take over the administration of antierosion work in such area? If no such steps have been taken, is the Commonwealth contemplating doing so?
– That is a rather big question to answer without notice, but I should think that the Snowy Mountains Hydro-Electric Authority is quite satisfied that the work that it is doing will repair any damage that might be done and which might be calculated to cause erosion. It is impossible in works of this magnitude to lay down rules for construction that will entirely eliminate the creation of conditions that could give rise to erosion. I hope the honorable senator is aware that there is a big programme within the works programme of the Snowy Mountains Hydro-Electric Authority which not only enables the damage to be repaired but which also covers work further afield in areas adjacent to the actual construction. As to whether the Snowy Mountians HydroElectric Authority is satisfied with the conditions in areas that are not under its control, I hesitate to say. Erosion is one of those things that has been going on for years, and there is a great field of argument about the use of those areas that are known as snow leases. There is a certain opinion that they should not be used to the extent that they are for the purpose for which they are now being used. I understand that it is suggested that undergrowth is being eaten out with the result that the catchment areas is being destroyed. As to the honorable senator’s third point, I understand that there has been a series of discussions but I doubt whether the Commonwealth would be prepared to volunteer to step in and take over the task. After all, it is primarily the responsibility of the New South Wales State Government, and that Government has behind it a long history of investigations into the way in which these catchment areas are used. Government departments in New South Wales have studied r.his matter over a long period of years, and they have certain views about it. The last suggestion I heard was that some sort of advisory authority comprising the Snowy Mountains Hydro-Electric Authority, the Water Conservation and Irrigation Authority of New South Wales and some representatives of the Murray Valley Development League might be set up so that the Government concerned and the users of the water might feel assured that what should be done is being done.
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asked the Minister representing the Minister for External Affairs, upon notice -
With reference to the Minister’s reply to a question on the 22nd May in which he stated that, through Australia’s association with the International Geophysical Year, facilities had been offered to any country wishing to set up scientific stations in Australian Antarctic Territory, will the Minister inform the Senate what facilities are there for the Soviet Union in Australian Antarctic Territory for aerial and ocean exploration?
– The Minister for External Affairs has supplied the following answer to the honorable senator’s question : -
Vor the purposes of the International Geophysical Year the Soviet Union has, with the agreement of the Australian Government, fct up a scientific station in Australian
Antarctic Territory. Two other scientific stations are likely to be set up by the Soviet Union in the Australian sector. Beyond the grant of this consent, no facilities have been provided in Australian Antarctic Territory, although there will probably be an exchange between countries engaged in the International Geophysical Year of various kinds of scientific data which they obtain.
In regard to the Australian mainland, we have agreed, in connexion with the International Geophysical Year, to the transit of Soviet expedition aircraft through Australia at stated intervals and subject to stated conditions. Likewise, Soviet expedition ships have called at> Australian ports. The Soviet Union has been informed of the conditions under which servicing and other facilities are available.
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asked the Minister representing the Treasurer, upon notice -
– The Treasurer has supplied the following information in reply to the honorable senator: -
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– On the 30th May, Senator Robertson asked the following question : -
Will the Minister representing the Minister for Health inform the Senate whether the National Health Act permits the addition to our water supplies of fluoride without the consent of the people concerned? Is it a fact that the majority of members of the British Medical Association, including Sir Stanton JJ Bicks, Professor of Human Physiology and Pharmacology, Adelaide University, agree that fluoride has a very limited use in the prevention of tooth decay, and are opposed to its addition to our water supplies? Will the Minister inform the Senate of the attitude of the Commonwealth Government to what amounts to an infringement of human liberty by the addition of fluoride to drinking water’ supplies?
The Minister for Health has now furnished the following reply: -
The question of the addition of fluoride to town water supplies comes within the jurisdiction of State health authorities, which are free to determine their own attitude.
– On the 31st May, Senator Maher asked the following question : -
I ask the Minister representing the Minister for Health whether he is aware that the Yass Municipal Council is reported to have secretly introduced fluorides into the town water supply. Is the Minister aware that any other municipality or water authority is secretly adding fluorides to public water supplies? Will he undertake to bring to the notice of the State health authorities the need to forbid water authorities to put poisonous fluorides in public water supplies without full public debate on the matter or the taking of a referendum on it of the people who must use such water?
The Minister for Health has now furnished the following reply: -
The Commonwealth Government has no jurisdiction in respect of matters such as those referred to by Senator Maher. These decisions are the concern of the relevant local authorities or the States themselves, which have exclusive powers in the public health field.
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– Or. the 24th May, Senator Robertson asked the following question : -
Has the attention of the Minister representing the Minister for Health been directed to the fact that in Western Australia the supply of pharmaceutical benefits under the National Health Act 1!>53 is not being effected in accordance with the provision of the act, which states specifically that all such benefits shall be dispensed by, or under the direct supervision of, a qualified doctor or a pharmaceutical chemist? Is the Minister aware that these drugs and medicines are supplied in bulk to all hospitals in Western Australia from the State Drug Depot, and that, when doses are ordered for patients by doctors, the drugs are obtained from the bulk supply by a member of the nursing stall”, and administered by her? Does the Minister consider that an element oi danger exists in this practice, which is contrary to the regulations under the National Health Act?
The Minister for Health has now furnished the following reply: -
The answer to the first question is that im attention has been drawn to complaints, that proper supervision is not being exercised in the supply of pharmaceutical benefits in public hospitals in Western Australia. However, 1 have been assured by the Western Australia Medical Department that the handling of drugs in hospitals in that State is properly supervised and all legal requirements are being niel.
The answer to the second question is yes.
The answer to the last question is no. All medicaments supplied to the smaller public hospitals in Western Australia are dispensed by, or under the direct supervision of, n registered pharmacist, and are properly labelled and supplied from the Government’s own dispensary. Medicines so supplied are handed out or administered by the sister-in-charge of the hospital under the direction of a medical practitioner. Every hospital in Australia, whether it employs its own pharmacist to dispense medicines or not, must, to some extent, rely on the nursing staff to administer medicines.
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– On the 31st May, Senator Brown asked the following question : -
Can the Minister representing the PostmasterGeneral inform the Senate of the amounts charged for the rental of telephones in New Zealand, Great Britain and the United States of America?
The Postmaster-General has supplied the following information in reply to the honorable senator: -
As promised, I have obtained information regarding rental charges for telephone exchange services in New Zealand, Great Britain and the United States of America. The details available arc as follows, the amounts being expressed to the nearest ls. in Australian currency equivalents : -
New Zealand.
Auckland, Wellington, Christchurch and Dunedin. - Exclusive business service, £32 lis.;, exclusive residence service, £18 12s.
Country Exchanges. - The annual rentals range (depending on the size of the exchange ) from £15 10s. for a business line and £11 12s. for a residence connexion up to £24 16s. for a business service and £15 10s. for a residence line. The rentals include unlimited free local calls.
GREAT Britain.
London. - Exclusive business service, £15 Is exclusive residence service, £12 l1s.
Birmingham, Glasgow, Liverpool andManchester. - Exclusive business service, £148s exclusive residence service, £11 18s.
Provinces. - Exclusive business service, £13 l6s. ; exclusive residence service, £116s. The residence service rentals include 50 free unit calls per half year.
United States of America.
The rentals vary from city to city typical charges being -
New York.- - Exclusive business service, £45 17s.; exclusive residence service, £29 12s. The rental charges in New York include 75 free unit calls per month.
Los Angeles. - Exclusive business service, £311s.; exclusive residence service, £2019s. The business service rental in Los Angeles includes 85 free unit calls per month, whilst the residence service rental is at the flat rate, that is, all unit calls are free.
The rates at country exchanges differ depending on the size of the exchange and the State concerned. For instance, in the State of Minnesota, the annual rentals at exchanges serving up to 500 subscribers are £32 l1s. for a business service, and £166s. for a residence connexion. These rentals are at the flat rate, no charge being made for unit calls.
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Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Spicer) read a first time.
Senator SPICER (Victoria - Attorney-
General) [3.17]. - I move-
That the bill be now read a. second time.
This bill will make some substantial changes in the Commonwealth’s conciliation and arbitration legislation.I shall begin by explaining shortly the reasons which, in the view of the Government, have made it necessary to bring the bill forward. Industrial relations and the just settlement of industrial disputes are matters which, quite obviously, directly affect the prosperity and contentment of any country, but they have special importance in Australia. From a combination of circumstances, they have become more controversial and more complicated in this country than probably in any other country, and the reasons for that are not hard to find. One is - and I say this in no spirit of criticism - that Australia has become the most highly unionized industrial country in the free world. We have some 60 per cent, of our wage and salary earners, both male and female, members of some appropriate union. By way of comparison, I could mention that the United Kingdom, which is a highly unionized country on standards of other parts of the world, has only 40 per cent, of its wage-earning population members of unions. Another highly industrialized country, the United States of America, has only 27 per cent.
In addition, there is probably more political activity on the part of the organized trade union movement, and individual unions, in this country than in any other, and the tendency is for major industrial issues to become political issues. We have had, over recent years, a sustained experience of full employment, and this has greatly strengthened the bargaining power of the individual employee ‘and of the unions. There is a potentiality in the industrial movement of this country for the exercise of power unsurpassed in any other democratic country, but would we claim that our industrial movement has yet developed that recognition of the responsibility which power carries with it, and which is to be found in other countries of the world? Such a responsibility is certainly not as well established here as, for example, in the United Kingdom. Nor has there yet developed in Australia, although I believe there are encouraging signs of improvement in that direction, that widespread recognition that the welfare of the employer and the employee go hand in hand, which I believe exists in the United States of America.
In Australia, management is well organized in the sense of belonging to employer organizations, and in most areas of industry it is well conducted; but for reasons which again are familiar to most honorable senators, it does not function on so highly competitive a basis as in the United Kingdom or the United States. We have a tariff protection whichhas enabled our own industries to grow without as much competition from overseas as might otherwise be the case. We have a much smaller population which does not encourage the extent or diversification of industry that may be found in more populous industrialized countries of the world. This has a significant bearing on the question as to the type of arrangement needed to deal with industrial disputes. For example, we find the more widespread use of the collective bargaining process, both in the United Kingdom and 121 America. In the United Kingdom a well disciplined, rather more responsible trade union leadership has developed than is to be found, with quite commendable exceptions, generally in this country.
In the United States, the competitive activity of industry is such that any employer entering into collective bargaining - and there it generally takes place at the factory level - knows that if he gets too far out of line with his competitors he will suffer accordingly. At the same time, in the United States, the trade unions have come to recognize that the welfare of the individual unionist is closely bound up with that of the employer, and consequently there is a greater realization that if demands are carried too far, the industry will suffer and the employee in that industry also will suffer. “We find, therefore, in America trade union support for mechanization, for automation and so on, based on the belief that, through greater efficiency, employees will get better pay, and enjoy higher living standards.
In Australia, we have to keep in mind that this Parliament has limited constitutional powers. Our power is one of conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. More than one government has felt itself circumscribed in dealing satisfactorily with industrial issues because of this limitation, and there have been six referendums seeking a widening of the industrial power. But the electorate has proved just as reluctant to extend this power as it has to make other constitutional changes that the Parliament has placed before it. All six referendums have been rejected.
In the Commonwealth sphere compulsory arbitration goes back to 1904. Consequently, when people advocate major reforms of our compulsory arbitration system they should keep in mind that we have a long-established practice. Notwithstanding the criticisms that may have been directed towards the system from time to time, it has received the support of all governments and all major political parties. During the period of its operation there has been, as a direct, outcome of the decisions made under it, a steady and progressive improvement in real wages and conditions of employment. It has been a strong shield for the wageearner when, because of the existence of unemployment, his bargaining power has been much weaker than it is to-day. “We, as a government, believe in a strong efficiently conducted trade union movement. Nothing that I have said about the industrial outlook in Australia should be taken as implying any criticism of the way in which the industrial movement has gradually strengthened and increased its membership in this country.
We are certainly by no means opposed to direct negotiation between management and labour in an endeavour to reach an agreement on issues that may arise from time to time, provided always that agreements have proper regard for the public interest. I think that it can be fairly said that our record in office has been one of good relations and active co-operation with industrial organizations of both management and labour; but there is a public interest, which must be protected.’ It is not difficult to imagine, in a country like ours, where industry is not. as competitive as it is in some other countries, agreements between management and labour in a particular section of industry, which are profitable to both but ave likely to place an additional burden on the consumer. There is much less danger of that occurring in countries such as the United Kingdom and the United States of America, but it is more than, a theoretical danger here. A recent instance occurred in Victoria in the building trade. When there was great activity in the building industry, and labour was scarce, the employers and employees agreed upon a considerable increase of wages, but the arbitration tribunal was not prepared to certify the agreement because it considered that it was not in the public interest. The public interest, then, is just as much involved as is the interests of management or of organized labour.
All these considerations, which I have only been able to touch on, as well as many others which could be put forward, demonstrate convincingly the need for the most effective system of compulsory arbitration, with suitable personnel and adequate powers, that this Parliament can devise. I stress that, because might without right can be tyrannous, and right without might can be futile. That applies in an especially significant sense to the industrial situation in Australia, and to the arbitration machinery of this country.
The improvement of industrial relations generally in Australia has been one of the principal objectives of the Minister and of this Government, and as a further step along this road, we came to consider the question of effecting some useful improvement in our conciliation and arbitration legislation. Since 1904, when the first act was introduced, successive governments have attempted the task of improvement. Indeed, 32 amending measures have been introduced since that year. However, the fact that so much amending legislation has come before the Parliament does not mean that the system has not worked reasonably satisfactorily. Indeed, although we have made many attempts to improve the system, our system has, for those who have come to it with goodwill and an intention to make it work, proved useful and of great value.
At this point, one may conveniently ask whether any legislative change is desirable at this moment. I believe that there will be general agreement that there is need for a change. For some time, there has been a widespread and growing feeling throughout Australia that a review of our arbitration system is necessary. L” shall mention briefly some of the reasons : First, the division of the
Arbitral function between the judges and the conciliation commissioners effected by the legislation of 1947, and not entirely remedied by subsequent amendments, cannot be said to have produced all the results hoped for by the sponsors of the legislation. Again, the exercise of conciliation cannot be said to have increased under the 1947 legislation, under which the number of conciliation commissioners was augmented. The conciliator has also been the arbitrator. So parties before a conciliation commissioner who might have boon disposed to engage in conciliation have always had in their minds the fact that the man to whom they were talking would finally make the determination. There was, in many cases, no doubt an understandable fear that if the negotiations broke down and conciliation failed, the arbitrator would decide the issue and any concession made as part of the process of conciliation might then be taken only as a starting point for the subsequent arbitration. There has, as well, been a growing criticism that, over the years, especially in recent years, the system has become unduly legalistic in form and atmosphere. There have been objections to the arbitrator being given the responsibilities also of enforcing awards. I shall have more to say on this point a little later, but it is one of many factors which have induced a feeling that there should, be a. review of the system.
Because of these, and many other factors which might be mentioned, the Prime Minister announced, on behalf of the Government, in the course of the last general election campaign, that we had a review in mind. We said that we would conduct suitable discussions with representative organizations, particularly the Ministry of Labour Advisory Council. Those discussions took place. Urgency has been given to the review by the outcome of the High Court decision in the Boilermakers case. By a narrow majority, the High Court - by four justices to three - decided that the judges of the Arbitration Court could not, as that court is now constituted, validly exercise the judicial power in addition to the arbitral power. This means that the Arbitration Court, as we have known it, cannot interpret awards, cannot deal with election irregularities, cannot deal with questions of law referred to it by a conciliation commissioner, cannot deal with some of the problems of jurisdiction which arise as between the court and the conciliation commissioners, cannot hear and determine issues relating to membership of organizations, and cannot enforce awards and punish contempts of its authority.
The bill, therefore, has two principal aspects. Both of them, while proceeding from different causes, one from the normal review we would have made, and the other from the decision of the High Court in the Boilermakers case, are directed to a more satisfactory system of conciliation and arbitration. We are doing this as one of the principal means in our power of bringing about better industrial relations and greater contentment and efficiency in Australian industry. The bill is, as will be seen, a longish measure. It is the product of much thought, much research and a great deal of discussion. It is not inappropriate to interpolate at this stage, that, since the bill was introduced, the Minister has had further discussions with the Australian Council of Trades Unions and the employers’ organizations. In the course of these, the Minister found it possible to accept certain suggestions for amendments, and these were incorporated iii the bill when in another place.
It will be convenient to refer first to the manner in which we are dealing with the situation arising from the High Court decision. We have been told that the judicial power can not be exercised by the Arbitration Court. Assuming, as is undoubtedly the case - and the list of functions of a judicial character that I have mentioned should bring that home to anyone - that there is a need for the exercise of a judicial power in these industrial questions, by whom should it be exercised? We have given a good deal of thought to this matter. We have considered whether the High Court might be the body to deal with these matters. We also considered the Supreme Courts of the States. We have rejected those courts because, as I am sure a little thought will convince most honorable senators, it is entirely undesirable that those courts, the High Court in particular, which is the highest court in this country, should be projected into the hurly-burly and the emotionally charged atmosphere of industrial politics and industrial disputation. I could imagine nothing more damaging to the prestige of those courts than for them to be required to deal with these very complex and emotionally charged issues.
So we have decided to constitute « special Industrial Court to exercise the judicial function. It will be called the Commonwealth Industrial Court. It will consist of a chief judge, and not more than two other judges. It will be a superior court of record and the judges will be appointed from the present judicial members of the Commonwealth Court of Conciliation and Arbitration. It is in this Commonwealth Industrial Court that we are vesting all the powers which a majority of the High Court has said cannot be exercised by the present Arbitration Court.
As to the conciliation and arbitration function, this will in future be discharged - subject to qualifications as to conciliators which I will mention - by a Commonwealth conciliation and arbitration commission. This commission will consist of some members with the qualifications required for judicial appointments. One of these will be the president of the commission and the others will be known as deputy presidents. The remainder will be lay members. It is intended that those judges of the Arbitration Court who do nol become judges of the new Commonwealth industrial court will be the first presidential members of the commission and, likewise, the present conciliation commissioners will be the first lay members of the new commission. The functions of the commission will be carried out as follows : - In the past the Chief Judge of the Arbitration Court has assigned industries to individual conciliation commissioners. They handle disputes in those industries. In future, the president of the commission will assign individual industries to lay members of the commission and they will, generally speaking, attend to all industrial disputes occurring in the industries assigned to them. I say “ generally speaking “ because there may be occasions when some major industrial issue arises when the president will feel that he or one of the deputy presidents should handle it. In addition, in much the same way as at present, the president will assign deputy presidents to handle disputes in relation to the Snowy Mountains project, the maritime industries, and the stevedoring industry. Honorable senators will be familiar with the practice in operation at the present time in respect of those sections of. industry. The presidential members of the commission will, as has been the case with the judges of the Arbitration Court, continue to handle, and handle exclusively, the major cases formerly reserved to the judges, such as the basic wage, standard hours and long-service leave.
We have tried to streamline, as I indicated earlier, procedures relating to references and appeals. We are providing the opportunity to refer important matters from a single commissioner to not less than three members of the commission. One of the lay commissioners may find that the matter before him raises questions of such importance that, it is desirable to have it dealt with by more than one member of the commission. An illustration of the sort of thing which could happen is to be found in the margins hearing which occurred before Conciliation Commissioner Galvin. It was a very important issue which had ramifications virtually running through the whole range of industry. In a case of that sort we would expect the commissioner to go to the president and, in an informal discussion, indicate to him the view that there should be a reference. There will only be a reference when the president agrees. We certainly do not want to have the situation where some commissioner may find this a. convenient way of relieving himself either of work or responsibility. The commission in these circumstances will comprise at least one member of presidential status, and one of the remaining two members will normally be the individual commissioner who has made the reference. This will ensure that the member of the commission who i3 expert in that particular industry will be sitting on the referred hearing. The third member will be appointed from the presidential members, or the lay members, at the discretion of the president. Appeals from the decisions will lie where the commission considers a matter of great public importance is involved, and only then. The appeal will go to the commission constituted by not less than three mem bers. at least two of whom will be presidential members. At least one lay member may thus be included in the hearing of an appeal. This can be very useful wore a lay commissioner, other than the one against whose decision the appeal is being made, has had experience of the same industry olof the same problem in his particular industry.
Associated with the commission will be conciliators. They will, as their name indicates, be expected to exercise a conciliation function. This is not to say that members of the commission, presidential or otherwise, will lack opportunity for conciliation. On the contrary, in the course of matters coming before them, there may be many occasions on which they may usefully find solutions through conciliation. What we have tried to do in providing for conciliators is to meet the very real difficulty that the parties to a dispute, generally speaking, are not prepared to conciliate in the presence of the person who, if conciliation fails, will be the arbitrator.
– I think it is a very good idea. The bill provides that these conciliators can be made available whenever their assistance is requested by the parties, or whenever a member of the commission dealing with a particular section of industry in which the dispute arises feels that a conciliator might help the parties to resolve their differences. If conciliation fails, the conciliator can only report to the member of the commission in terms agreed to by the parties. This will avoid prejudice to the subsequent arbitration. Occasionally, the parties may find that there is very little outstanding after conciliation has played its part. They may be willing, in these circumstances, to have the conciliator settle any remaining points - usually, no doubt, of a minor character - rather than involve themselves in another and more formal arbitration before a commissioner. If the parties all consent to his doing so th, conciliator may, in circumstances such as these, determine the points outstanding.
Of course, any agreement arrived at out of tins conciliation process will, if it is to have the effect of an award, still need to be certified by the commission. Even from the somewhat sketchy outline I have given, some of the advantages of this measure will be readily apparent. There will be, I hope, more flexible arrangements for hearings and less likelihood of delay occurring because arbitrators are not available. The commission should be even better placed than at present to deal with issues coming before it because it will now be possible for commissioners who have intimate knowledge of particular industries to sit on the hearing of important cases requiring a three member commission. I am referring here particularly to references and appeals. There will be opportunity for conciliation without the arbitrator being actually present. There will be a better prospect of a uniform and co-ordinated approach because of closer association between presidential and lay arbitrators. Questions of enforcement will be dealt wilh by a tribunal other than that which will be arbitrating on claims.
The new system will enable proceedings to be conducted with less formality and the Government hopes with less of a Iitigous atmosphere. In regard to the enforcement of awards, upon the basis of a decision of the High Court in the Boilermakers case, the Arbitration Court lias lost the power, it formerly possessed of enforcing its awards. That power will be restored to the arbitration system by this legislation, but in a manner which I believe will work more satisfactorily and give far less cause for the more valid objections which have been directed against enforcement processes.
The enforcement power will be one of the judicial functions exercised by the industrial court. The process of enforcement, however necessary it may be on occasion, is never likely to be welcome. Strong emotions can be stirred, and strong feelings may develop which do not assist a calm, dispassionate approach to issues in dispute in subsequent arbitration processes.
The Australian Council of Trades Unions has made public its own objections to the enforcement process. At its 1955 biennial congress, it called for an immediate campaign against the existence and use of penal powers contained in the Conciliation and Arbitration Act, the Crimes Act, and in the industrial legislation of the various States. It directed, among other things, that demands should be made to the Federal Government and all State Labour governments for immediate repeal of all such provisions in Commonwealth and State Acts. However strongly this viewpoint may be held by some trade union officials, it is certainly not shared by the Australian people as a whole. Most sensible people, who take a realistic view of these matters, and see them against the background of the Australian industrial situation, recognize the need for their arbitration system to have authority to uphold its decisions. A recent gallup poll is illuminating on this point. When asked whether they favoured the use of sanctions by the Arbitration Court, of the 85 per cent, of people who expressed an opinion on the matter, 71 said they favoured sanctions; only fourteen were against them.
While no doubt the Opposition will attack these sanctions, they cannot be unmindful of the fact that they exist in one form or another in the industrial legislation of all the States, including those which have been led by Labour governments for many years. When the Opposition, then on the government benches, made the Arbitration Court a superior court of record in 1947, it enabled the court to enforce its awards by the contempt process - at least that was what every one thought it could do until the Boilermakers decision. The Bolermakers decision, of course, rested upon grounds which in no way affect that statement.
– If sanctions were imposed on profiteers the Government would not have to do this.
– Would honorable senators opposite remove sanctions from the act, so that trade unions could not enforce against employers awards made in their favour? There can hardly be serious objections, even taking into account what has been put forward by the Australian Council of Trades Unions, to the existence of sanctions in our arbitration system, when it is realized that the unions would most certainly object to a situation in which the employers would be under no obligation to pay the wages or observe the conditions laid down in awards. The unions would certainly want sanctions against any breach on the part of the employers. I think it is a fair question to ask whether any union would seriously consider excluding from its rules provisions authorizing it to discipline its own members when they committed a breach of those rules.
We would be wise not to forget that we operate under a compulsory arbitration system which all parties in this Parliament have supported. Is it to be compulsory for one side of industry only? The Government believes that enforcement provisions are necessary, but it also believes that they should be regarded as a reserve of power, to be applied with good sense and sound judgment only when the occasion requires them. Any one who studies the experience of recent years will agree that, generally speaking, enforcement powers have been used comparatively rarely, and their use on those occasions has been in relation to trade unions, or members of trade unions, where a complete disregard for the public interest has been revealed. I remind the Parliament that enforcement provisions have existed for more than 50 years in our federal arbitration system. Does the record of those years suggest that the substantial improvements in wages and conditions of employment which have occurred have been prejudiced by their existence?
As I have mentioned, the Government has carefully considered whether enforcement powers should be vested in the normal courts, that is, the High Court of Australia or the Supreme Courts of the States. We rejected this. It was tried before, from. 1918 to 1926, and it is interesting to recall that it was as a result of the experience of those years that the trade unions themselves pressed the government of the day, in which Sir John Latham was Attorney-General, to transfer the exercise of these powers to the Arbitration Court itself.
We certainly do not wish to have the new Industrial Court concerned solely with award enforcement. It will, as I mentioned earlier, have the full judicial powers formerly exercised by the Arbitration Court. It is the Government’s hope that if political parties and industrial organizations are prepared to give this new legislation a fair trial and to cooperate in a responsible way, one with the other, in operating its machinery, there will be few occasions in the future where enforcement will be necessary.
Now, a word on procedures and legal representation. Observers of our arbitration system, from other countries, have been rather unfavorably struck by the extent to which conflict between management and labour enters into the picture. Frequently, however, this conflict is much more apparent than real. Our constitutional requirement that the conciliation and arbitration machinery gets into motion only when there is a dispute to be resolved, leads to the creation of a dispute in form, even where the parties, in an entirely friendly spirit, merely require some independent determination of matters in issue between them. Over very wide areas, industrial relations between management and labour are good in this country. The incidence of working time lost through industrial disputes is comparatively small. If we exclude the two notorious trouble areas of coal-mining and the waterfront from our calculations, the working time lost per employee in the rest of industry amounts to less than one-quarter of a working day a year. But there is undoubtedly scope for much improved relations in important sections of industry, including the two I have mentioned specifically.
It cannot be denied that there is some substance in the criticism that the procedures and the atmosphere of the Arbitration Court over recent years have been unduly legalistic. We all have, I hope, a proper appreciation of the importance of maintaining the solemnity, dignity and traditional forms associated with a British court of law. But it is questionable whether those forms and procedures, and that atmosphere, are wholly appropriate to the exercise of the arbitral function in industrial matters, more particularly when, as will be the case in the future, the tribunal dealing with them exercises no judicial function whatsoever. The Government thinks it would be desirable that in the sittings of the commission there should be less of the atmosphere of a law court.
On the subject of legal representation, we have provided in the bill that there should not be an unlimited access by counsel to arbitration hearings. The assistance that counsel can bring to the work of the tribunals should not be underestimated. There will be major cases in which it will be most desirable to have them appearing. On the other hand, it is unlikely that the issues raised in many hearings before a single commissioner will call for counsel. Many organizations, both of employers and employees, have officers who are trained and skilled in the presentation of industrial arguments, and who, over the years, have acquired a special knowledge of the industry to which they are attached. They get to know each other in an intimate and friendly way. There is more probability of conciliation in this kind of atmosphere. There will, of course, be no limitation on the appearance of counsel before the industrial court. At the arbitral level, counsel will, by leave of the commission, be able to appear in any case in which the Attorney-General has intervened. In all other cases counsel will be entitled to appear where the parties consent to, and the commission approves of, their appearing. There is a further qualification, however, that in cases where the consent of all the parties is not forthcoming, but, in the view of the commission, the issues raised before it warrant the attendance of counsel, it can so approve. In the judgment of the Government, these provisions should cover all reasonable requirements.
Before I conclude I want to say a word or two about the appeal to the Privy Council against the decision of the High Court in the Boilermakers case. The Government will contend before the Privy Council that the High Court’s decision imports into the constitutional law of Australia a new and serious element of rigidity, not in any way required by the previous doctrine of the High Court. The implications of the decision extend far beyond the industrial legislation of the Commonwealth. They may affect provisions in many other acts passed by the Parliament. Illustrations are the Bankruptcy Act, the patents legislation, the Electoral Act, and the Navigation and Stevedoring Industry Acts. All of these contain provisions which may be affected directly by the outcome of the Boilermakers case. The appeal, therefore, is based on broad constitutional grounds. With this appeal pending, it was obviously necessary to keep in existence the present Commonwealth Court of Conciliation and Arbitration.
As honorable senators will observe, the bill does not disturb the sections of the act which constitute the present Commonwealth Arbitration Court, and under which the present judges were appointed. The arbitration court will, however, be authorized to complete the hearing and determination of arbitral matters it has already started to deal with. That, of course, is most desirable.
Pending the determination of the appeal, the present court will be unable to exercise any judicial functions. .Prom the Government’s point of view, this is unfortunate. As the decision of the majority of the High Court stands, the judicial interpretation of awards has to be vested in the new Commonwealth Industrial Court. But, in practice, who could be better equipped to interpret an award than the presidential members of the commission which made the award?
However, I want to make absolutely clear that, although obviously some of the provisions I have mentioned may have to be reviewed in the light of the Privy Council’s decision, the object of the appeal is not to permit the Government, in the event of success, to restore the present Arbitration Court set-up or, for that matter, to give to the new arbitral tribunal - the commission - the power to enforce wards. In short, the present measure before the House has nothing of a stop-gap character about it.
I should say here that associated with this measure are some other bills. These will be before this chamber at a later stage. They are the Public Service Arbitration Bill 1956, the Snowy Mountains Hydro-electric Power Bill 1^56, the Navigation Bill 1956, the Australian Capital Territory Supreme Court Bill 1956, the Evidence Bill 1956, the Stevedoring Industry Bill 1956, the Northern Territory (Administration) Bill 1956, and the Judges’ Pensions Bill 1956. With the exception of the Stevedoring Industry Bill 1956, these are amending measures which are purely consequential upon the provisions contained in the main bill.
I have earlier referred to some of the improvements made by the bill in the working of our arbitration system. I shall mention another - that is, in future, our industrial legislation will be in a much more readily understandable form. Whatever other criticisms honorable senators opposite may make, I am sure that they will agree that the bill, if passed, will provide, in its final form in one piece of legislation, a clear, closely connected presentation of practically the whole of the Commonwealth’s conciliation and arbitration machinery.
In a period in which industrial problems are challenging the attention, and affecting the well-being, of so many people in all sections of community life, it is highly desirable that they should be able to learn quickly and accurately just what the rights and obligations of themselves and others really are. The final form of the bill will enable them to do this conveniently. But, the greatest advantage which can flow from this legislation is something intangible - namely, goodwill and co-operation. Given a fair trial and a general willingness to make the machinery work, I believe that these reforms will promote that goodwill and co-operation. In the absence of that kind of support, no machinery, however well constructed, will do the job expected of it.
The proposals which the bill contains have been carefully devised after much discussion, to meet the needs of our special Australian situation. Every Australian household has a direct interest in industrial peace and greater production. We have based our approach to this problem on liberal principles, and our belief that most Australians genuinely desire to deal fairly with one another. Because I firmly believe that these proposals oan work justly and for the benefit of all, I commend thom to the Senate.
There are six other bills associated with this measure, and it might be convenient to have them on the notice-paper.
I understand that the Leader of the Opposition (Senator McKenna) is prepared to take up the debate on this bill immediately, and perhaps if he were now formally to request that the debate be adjourned, I could make it an order of the day for a later hour to-day, and so introduce the other bills which I have mentioned.
Debate (on motion by Senator McKenna) adjourned.
page 1413
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Spicer) read a first time.
[4.3 J. - I move -
That the bill be now read a second time.
As I indicated a few moments ago, this bill is solely consequential on the Conciliation and Arbitration Bill 1956, as is also true of the other measures that I shall presently introduce. I do not propose to say anything more about these measures at present.
Debate (on motion by Senator McKenna) adjourned.
page 1413
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Spicer) read a first time.
Motion (by Senator SPICER) proposed -
That the bill be now read a second time.
Debate (on motion by Senator McKenna) adjourned.
page 1414
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Spicer) read a first time.
Motion (by Senator Spicer) pro posed -
That the hill be now read a second time.
Debate (on motion by Senator Mckenna) adjourned.
page 1414
Bill received from the House of Repre sentatives.
Standing Orders suspended.
Bill (on motion by Senator Spicer) read a first time.
Motion (by Senator Spicer) pro posed -
That the bill be now read a second time.
Debate (on motion by Senator McKenna) adjourned.
page 1414
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Spicer) read a first time.
Motion (by Senator Spicer) pro posed -
That the bill be now read a second time.
Debate (on motion by Senator McKenna) adjourned.
page 1414
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Spicer) read a first time.
Motion (by Senator Spicer) pro posed -
That the bill be now read a second time.
Debate (on motion by Senator McKenna) adjourned.
page 1414
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Spicer) read a first time.
Motion (by Senator Spicer) pro posed -
That the bill be now read a second time.
Debate (on motion by Senator McKenna) adjourned.
page 1414
Debate resumed (vide page 1413).
– The Opposition takes the rather unusual course of proceeding immediately with the debate on this very important bill. It does so for a number of reasons. The first of them is the importance of the measure; secondly is the fact that the session is drawing to a close ; and thirdly, we want as much time as possible to debate the measure and to present amendments to the Senate. There will, in fact, be an amendment from the Opposition to the motion for the second reading. The bill before the chamber embarks upon a very extensive review of the Conciliation and Arbitration Act, and the approach of the Opposition is along the same lines, but the question of review being opened up, we think it is proper that we present in an amendment, in a succinct and quite comprehensive form, the views of the Opposition in relation to the whole scope of that very important act. That amendment has been circulated to honorable senators and presently, so soon as the Government Printer can complete the printing of them, amendments proposed to be moved by the Opposition in committee will be available to honorable senators. There is quite a number of such amendments. In addition to that, we shall also vote against particular clauses rather than seek to amend them; and in that way we shall take the opportunity to express our viewpoint upon what the Government proposes.
At this stage I propose to put before the Senate the amendment to the motion for the second reading. I now formally move -
That all words after “That” toe left out with a view to inserting in lieu thereof the following words: - “ (a) In the opinion of the Senate the bill should be withdrawn for reconsideration because of the following matters: -
) The bill confirms rank injustice by continuing some of the worst features of the existing legislation, e.g., penalties enforceable by process of contempt of court. These should be eliminated. In practice they have been enforced only against trades unions, their officers and members and have caused grave industrial unrest.
The bill maintains and extends the present systems of appeal from decisions and reference of matters. These systems have caused frustration, delay and grave injustice to salary and wage earners within federal jurisdiction.
In relation not only to matters of penalty and contempt of court, but also to the legal interpretation of awards, the bill vests exclusive judicial power in a small group of the present Commonwealth arbitration judges who were originally appointed, primarily because their main duty was to decide in a common sense and speedy manner practical problems affecting certain aspects of industrial disputes. The judicial power of the Commonwealth, so far as it is required to be exercised in industrial matters, should be vested in the existing courts of Commonwealth and State and not in a newly created court of Judicature.
The present bill contributes nothing to the solution of the problem of industrial unrest and chaos arising from decisions under the present system and the manner in which it has been operated.
Therefore, in the opinion of the Senate, the bill should be reconsidered and, in order to avoid injustice and delays in the processes of conciliation and arbitration for the effective prevention and just settlement of industrial disputes, legislation should be passed so as to provide for the following matters: -
The grant of final and exclusive jurisdiction in relation to industrial disputes to officers (however styled) charged with the duties of conciliation and arbitration and specially conversant with the industry concerned, reserving for the determination of the Judges or Presidential Commissioners ‘ final and exclusive jurisdiction limited to standard hours, basic wage and long-service leave
The making of special provisions strengthening the processes of conciliation including the appointment of additional conciliators charged exclusively with the function of mediation.
In all cases where agreement is reached between parties in dispute whether under the act or otherwise, the making of provisions whereby the agreement between the disputants shall be certified by the appropriate authority and shall be conclusive and binding on all parties to such agreement quite irrespective of the subject-matters of the agreement or any part of it.
The correction of irregularities in union ballots by judicial procedures in accordance with the act of 1949.
The elimination of all unnecessary forms and technical legal formalities, orders for costs and professional legal advocacy.
And, in the further opinion of the Senate, an essential feature of an adequate and effective Australian industrial arbitration system should be to vest in the Parliament of the Commonwealth full powers both in relation to industrial matters generally and also to just fixation of prices and profits on an Australiawide basis “.
That puts down in writing, for the consideration of honorable senators, the Opposition’s approach to this matter. Despite what the Attorney-General (Senator Spicer) hassaid in his secondreading speech to the effect that the preparation of the bill was given much thought and that it was subject to review, research and discussion, it is apparent that the bill has not had as much thought as it should have received. Soon after the measure was introduced in another place, the Government introduced eleven pages of amendments. That does not savour of adequate thought. Again, the Minister spoke about the multiplicity of discussions that the Minister for
Labour and National Service (Mr. Harold Holt) had had with representatives of various organizations. In introducing the numerous amendments to us, the Minister stated that several of them were the result of discussions that had taken place after the bill had been introduced. It would seem that this legislation was hastily produced, despite the fact that the Prime Minister (Mr. Menzies) promised to review of the act in December last.
Apparently, this hasty step on the pari of the Government was provoked by the decision of the High Court of Australia in the Boilermakers case. The High Court held that the Commonwealth Court of Conciliation and Arbitration, being charged primarily with arbitral functions, was not such a body as could exercise the judicial power of the Commonwealth. That, of course, created immediate difficulties, and I believe that one reason for the haste with which this bill has been presented wa3 the fact that that situation arose, and the court was without power of enforcement. The bill, which began in another place with some 45 pages, has now reached 51 pages. That has caused great difficulty for those who wanted to follow the bill through the various stages from its introduction in the House of Representatives to this moment. They have been compelled, by reason of the many amendments, to waste many hours of effort and work in studying the documents that were before the House of Representatives, but they are of no use ro us now that the bill has come before the Senate for the first time in an amended form.
The fact is that the Commonwealth Government is charged with the duty of seeking to regulate industrial conditions, hut the Commonwealth Parliament has no power over disputes in the industrial field, not even when they are industrial disputes. It may merely seek to apply the processes of conciliation and arbitration to the prevention and settlement of those disputes. It is under the disability that it cannot provide for the making of a common rule - that is, an award of a conciliation or arbitral tribunal - to apply generally throughout an industry. That involves trade unions in great expense and delay.
One tragic feature, from the viewpoint of industrial relations, is that every word of the laws conferring this power has been the subject of judicial decision on innumerable occasions. Only those lawyers who have made a study of industrial affairs are familiar with those decisions and their effect. That means that the ordinary worker in Australia can have no clear understanding of the principles upon which this Parliament works. The matter is far too complicated even for most lawyers. Only the specialists can really understand and be familiar with it. It is unquestionably a tragedy for this country that, in the various economic crises through which it has passed, this Parliament, to which the people look for complete economic control, lacks even elementary power in one of the most vital factors in the economy - the control and regulation of industrial conditions.
As the Attorney-General has indicated, there have been six referenda seeking authority from the people to confer such power on the Parliament, but that power has not been referred, and the Government must accept its share of blame for the fact that it does not enjoy to-day a much needed power in the economic field.
– Perhaps the committee to review the Constitution will help to solve that problem.
– I am really hopeful that it will. It is undoubtedly one of the matters to which I hope the committee will address its mind, but 1 cannot resist recording the fact that it was on the advice of the present Government, when it was in Opposition, that the people rejected the proposal to confer power over terms and conditions of employment in industry, although thai power was subject to the provision that it was not to authorize any form of industrial conscription.
– We are taking action to amend the Constitution.
– That matter might arise from the activities of the committee to review the Constitution.
– The present Opposition had the opportunity also to take action in this matter.
– 1 accept whatever measure of blame is attributable to both the major political parties for making a political football of a matter such as constitutional reform. The Government is to be commended for the approach it is making now to the matter by the appointment of a joint parliamentary committee, with equal representation of the major parties, in the hope that some area of agreement can be reached in the national interest. I can assure the Senate that the Opposition members will search very hard for that area of agreement. It is not likely to be reached easily, but at least we shall give of our best to that end. I give that assurance in advance. The Conciliation and Arbitration Act that is under review has, as the Minister indicated, been subjected to some 32 amendments throughout its history. This further proposal, a most comprehensive amending bill, represents the sixth amendment of this act by the Government since it took office approximately six and a half years ago. As I see it looking at the inadequate constitutional position, based upon the head of power to which I have referred, supplemented by the incidental power, the approach by means of this bill is just one more patch on a multi-coloured and rather threadbare quilt.
Hitherto, in the industrial field we have had two elements : We have had an arbitration court, and we have had conciliation commissioners. Under this bill, we are to have five elements in the field. There will be still the old Commonwealth Court of Conciliation and Arbitration; there will be a new Commonwealth Industrial Court; there will he a new Commonwealth Conciliation and Arbitration Commission; there will he commissioners; and there will he conciliators. Whilst there are in that arrangement some very good principles to which I shall pay a meed of tribute shortly, I think that this will merely add to the confusion in the sphere of industrial relations. I hope that I am wrong, but I fear that it will not resolve industrial unrest but merely add to it.
The broad scheme of Labour’s main arbitration legislation, namely the 1947 legislation, was to have a court and to appoint a number of commissioners with major powers over basic wage fixation, male and female, and standard hours. We provided for annual leave and sick leave, which was later altered to long service leave alone, to be reserved to the judges of the court. All other matter? were to be entrusted to conciliation commissioners. The court, of course, was to have authority over matters that were purely judicial. That was the broad scheme of the act. What is the broad scheme of the bill now before the chamber? First, there is to be an industrial commission which will exercise the functions of conciliation and arbitration solely. It is to be constituted of some judges from the present Commonwealth Court of Conciliation and Arbitrationthree of them at least - and they will be known as presidential members of the commission. There is to be a senior commissioner and at least five other commissioners.
I note that the Government has preserved the great basic principle of the 1947 act, in that to those presidential members are to be reserved the great matters of the basic wage, standard hours and long service leave. The one big difference is that whereas, previously., the judicial members of the court were not free to enter the province of conciliation commissioners, in future they are to be enabled to embark into the field occupied by conciliation commissioners. The president himself, or his nominee from amongst the presidential members, may move into any particular dispute. In fact, it is true to say that the bill permits the president or a presidential member to displace entirely a commissioner who has been allocated to a certain industry. He may do that in relation to a. major matter affecting all the conditions of an industry, or he may step in in relation to a particular matter.
– This will be a more flexible arrangement.
– That is a. point of difference between the Government and the Opposition. We can only have opinions on that matter, and whilst we may express them, time alone will show whether the provision works well.
– The bill gives power for that to be done.
– The bill gives presidential members the power to displace commissioners whom the president may appoint for that purpose.
– As conciliators.
– And as arbitrators, not only as conciliators. A presidential member who is assigned to a dispute, or a particular industry, will, of course, primarily have arbitral functions, but he undoubtedly will have conciliatory functions also.
– When he can be a conciliator.
– I am coming to that. At the moment, I am dealing only with the commissioners themselves.
Next, there is to be a system of conciliators who will not be members of the commission at all. That is a departure that has been justified by the Minister on the ground that parties before a conciliator, who may turn arbitrator, may be reluctant to really show their hands, if I may put it that way, in an endeavour to meet each other. There may be merit in that explanation. We are not opposing this matter. We think that it is quite an interesting experiment and one that may bear good fruit. We aTe prepared to see it in operation and to give it our blessing in the hope that it will succeed.
– Surely, it is a corollary of true conciliation.
– It is conciliation simpliciter, without the fear of the conciliator turning into an arbitrator who would make decisions. According to the bill, the conciliator shall make no report to the commission, which may come in as arbitrator, unless the report is in writing and agreed to by both parties to the conciliation. We have no objection to that; 1. want to make that quite clear. We shall watch it in operation with real i nterest.
Then, there is to be a Commonwealth Industrial Court, which will be an entirely new body. It will comprise judges of the present Commonwealth Arbitra tion Court, and it will deal with judicial matters. The Attorney-General, in his second-reading speech, in another context, rather effectively summarized the activity of the judges by saying that they will deal with the interpretation of awards, election irregularities, questions of law referred to them, problems of jurisdiction, issues relating to membership of organizations, the enforcement of awards and punishment for contempt of the court’s authority. At the moment, I am merely outlining the scheme of things. Fourthly, there will be the Commonwealth Arbitration Court which has not been abolished.
I should like to deal separately with each of those elements. Let us take the Commonwealth Arbitration Court first. This bill leaves that court intact as a body but divests it of all its powers under the present act and confers upon it certain new powers. Honorable senators will see, on page 45 of the bill, that the court may complete matters that are pending. There can be no objection to that. But then, on page 31, in clause 9 there are the interesting provisions that the court - not the new Industrial Court but the old Arbitration Court - is to have power to interpret awards, to give opinions on questions of law that are referred to it, and to perform functions that may be assigned to it under other acts. Whilst the Attorney-General referred to the old Court of Conciliation and Arbitration that is preserved in that way I suggest that he did not give the Senate a proper picture of the future of that tribunal. What is in the mind of the Government?
If honorable senators refer again to page 35 of the bill, they will find that both the old Commonwealth Court of Conciliation and Arbitration and the new Commonwealth Industrial Court are given power to make an interpretation of an award at the instance of an organization or any party affected by the award. Furthermore, if honorable senators will continue to look at page 35, in conjunction with what appears on page 34, they will, find that questions of law may be referred from the commission to either the old court or to the new Industrial Court.
– How is it to work for the time being?
– I am inviting attention to the duplication, and I am asking the Minister to indicate what will happen if an individual or an organization makes an application, whether it be simultaneously or alternatively, to both the old Arbitration Court and the new Industrial Court.
– It is no good going to the Commonwealth Arbitration Court at the moment in connexion with a judicial matter. That is clear.
– That is true, but if this bill becomes law, I have no doubt that the Attorney-General will agree that it will strip the Arbitration Court of all its powers except those that are conferred on pages 31 and 45 of the bill to which I have referred.
– And it will only become law by passage through this Parliament and the success of a Privy Council appeal.
– I do not think a Privy Council appeal has anything to do with it. If this court is re-constituted with powers that are completely judicial, such as the interpretation of awards and the expressing of opinions on questions of law, it can function as a judicial court. Otherwise, what is the purpose, after completely stripping the federal Arbitration Court of ali old powers and giving it new powers - purely judicial ones, like the interpretation of awards and the consideration of questions of law - of revesting those judicial functions in the court? Is it only a farce? Or is the provision intended for some other purpose? Obviously, there is a duplication. On. the face of it, a party might apply io both the old court and the new court for an opinion of law upon the one matter. Those bodies, being differently constituted, could give him two entirely different answers. L am simply posing ?he question for the Minister to deal with, if lie would be so good, when replying. T also refer the Attorney-General to proposed new section 19, in clause 8, which provides - (1.) The qualifications of a Judge (including a Chief Judge)-
This refers to the old Arbitration Court, not the new Industrial Court - appointed after the commencement of this section are that he must be a presidential member of the Commission.
Thus, it i3 contemplated that all future appointments to the old Arbitration Court - and they are obviously in contemplation, by this section - will be made only from the presidential members of the commission.
– Whilst 1 am not questioning the provision, how has the honorable senator got the idea that the word “ Judge “ refers to the old court ?
– If the honorable senator refers to the principal act that is being amended, he will find that section 19 refers to that court, the appointment of which it preserves. That is unquestionably what proposed section 19 relates to - the old court - and it has nothing whatever to do with the new court.
– There is no duplication of the personnel.
– I am not suggesting that. I am merely saying that the effect of this legislation will be, if the old court is to continue, that all new appointments, as its members resign or die, must come from the presidential members of the new commission. Of what use is it to have two bodies with identical personnel, and to provide that one may refer questions of law to the other? I can understand that it might sometimes be necessary to seek an interpretation of an award, but if that clause is given effect, the old court will be preserved, and every member of it will be a presidential member of the commission so that, in effect, there will be an appeal or reference from Caesar to Caesar. This raises an interesting matter regarding the future and functioning of the old Arbitration Court. I am surprized that the sections that deal with the new Industrial Court give to it power to interpret awards and questions of law. There is a particular provision that those two sections may be repealed by the Governor-General, by proclamation.
– To what proposed sections is the honorable senator referring ‘(
– I have referred to sub-section (5.) of proposed section 35, and sub-section (4.) of proposed section 38.
– How else could it be done, in view of the existing situation ?
– I have merely asked the Minister what is meant by these provisions, and what is to be the future of the federal Arbitration Court. I come now to the Commonwealth Industrial Commission, which is to be a most extraordinary hybrid body. I have never known a composite body with so many different elements in it. It shall consist of presidential members, who are judges or lawyers, a senior commissioner, and no fewer than five commissioners. First of all, let us consider the difference in status of the judges and the commissioners. The judges are given the status of judges of the Industrial Court. That is a big thing. It not only is an academic distinction - a professional distinction - but it also makes a great social distinction. Then there is the important aspect of pay. Of the presidential members, the chief of them will receive £6,500 a year, the vice-presidential members will receive £5,500 a year, but the commissioners, who will be charged under the legislation with prime responsibility for industrial relations in great industries, are to receive £3,000 a year.
– That will be an increase on what they are getting now.
– I agree with what the Minister has said. I am merely directing attention to the fact that some members of a commission, when it is sitting as one entity, one body, shall receive £6,500 and some £5,500, while those who do the spade work will receive £3,000 a vear.
– Does not the honorable senator consider that persons who are charged with such high responsibilities should receive salaries of £6,500 and £5.500?
– I am not arguing about the payment of those salaries. In fact, I have supported them. I am simply drawing attention to this extraordinary position, that the members of a commission charged with great responsibility in the industrial field will be of different status, will receive different salaries, and will enjoy different tenures of office.
– Presidential members have different responsibilities.
– Yes, but they are reputed to be members of one body, a commission comprising judges and laymen.
– Is there anything wrong with that ?
– It makes a completely invidious distinction, but allow me to continue my theme. I shall tell the honorable senator all about it. Now let. me deal with the difference in tenure. The judges hold their position for life. Then, if the number of presidential members is added to, the new appointees, elevated from the bar and having had five years’ experience at the bar, will be entitled to remain in office until they reach the age of 70.
– The present judges have a life appointment.
– I am not querying that aspect ; they have already earned that, but let us pass to the others who would join them from the bar. They have to retire at the age of 70. I have always understood that members of the legal profession are very bad insurance risks : and why they should be preferred from the point of view of mental capacity and longevity to a conciliation commissioner I simply do not know. The lay conciliation commissioner is compelled to retire, under the bill, at the age of 65.
– The same as- a: present.
– The same as a; present, but what an extraordinary position. What a mix-up in the one com.mission. I would say in answer to Senator Vincent that the lay commissioner? are in a most inferior position from beginning to end on that body. They will not only feel their position, but they will be made to feel it; that is inescapable. They are in a far worse position than the junior Ministers in the federal Cabinet. That is an easy arrangement compared with this one where there is a vast difference in status, tenure of office and pay.
– What pension do the commissioners receive ?
– They subscribe to the ordinary superannuation scheme.
– They do not get a pension like the judges?
– Nothing comparable with that. That is another point of difference.
– That was the same tinder the legislation introduced by the Labour party.
– But there was a complete separation of functions under the 1947 act ; they were not amalgamated as they are under this bill. My own feeling, and it is the belief of the Opposition, is that this commission is so heterogeneous with these great differences between its members that it will not settle down to do good work in this field, and that in truth the lay commissioners will be completely dominated by the judicial or presidential members.
– The workers will have no confidence in it.
– That is the feeling, and that is why I speak as I do.
I pass now to the next aspect, the conciliators. They are to be directed to move into an actual or pending dispute and to apply only the process of conciliation. That may be good. It calls for the highest, attainments of mind and character to be a successful conciliator, but T do not understand why they should be paid less than the lay commissioners. They are to be paid £2,750 per annum and that is a point - a minor one if you like - which the Opposition thinks is wrong. We believe that emphasis should be placed on conciliation ahead of arbitration and that a good conciliator who can prevent a dispute, or prevent its development, is worth more than any arbitrator. We thin1: it quite incongruous that such a distinction should exist.
I congratulate the Government upon one other aspect in relation to conciliators. The bill as introduced provided merely that the Governor-General may appoint conciliators, but the Australian Council of Trades Unions, and the printed amendments circulated by the Opposition, proposed that the bill should be altered to make the appointment of conciliators mandatory. I am delighted that the Government has accepted that amendment and that the appointment of conciliators, instead of being discretionary, will, under the bill as amended, be mandatory in accordance with the suggestions made by the Australian Labour party and the Australian Council of Trades Unions. The Opposition will watch that experiment with real interest.
– Does the Leader of the Opposition think that conciliators should be paid as much as judges?
– I have not said that. I have said that they should be paid as much as commissioners.
– And the Leader of the Opposition suggested that commissioners should be paid as much as judges.
– The AttorneyGeneral (Senator Spicer) could not have understood what I said. I drew attention to the difference in pay; I did not say that the commissioners should receive the same as the judges.
– Would it not be a fair inference to draw that because conciliators are being paid so much less they will not work in harmony with the judges? Is that the honorable senator’s proposition ?
– That is not a proper inference. I think that the mere quality of the judges, their status, tenure of office and pay will give them a superiority over the lay commissioners that they will continue to exert, and they will not regard them as colleagues of the commission.
– The Leader of the Opposition is putting the proposition in the same way hut in a different form.
– No I am not, [ am putting it exactly as I want to put it, but not as the honorable senator wants me to put it. Let me pass to the Commonwealth Industrial Court. Under this bill all judicial power is to be taken from the industrial commission, of which I have just spoken, and is to be vested in a court comprising judges and barristers who are to be appointed for life. The Attorney-General has given the Senate an indication of what that jurisdiction will be. The Opposition feels that that is quite a wrong approach to the problem. One of the main reasons for the creation of this Industrial Court is to enable it to enforce awards and orders of the commission. The Opposition thinks that is elevating the matter of enforcement to an unduly high level. The mere presence of the court, and the fact that it is waiting to deal with enforcement matters, gives too much emphasis to that aspect. Its mere presence will be an invitation to the parties in a dispute to invoke its power more readily and more freely.
The Opposition is not objecting to the new principle that the body that makes conciliation and arbitrary decisions should be divorced from enforcement provisions, but it differs from the Government on the point that it is wrong to vest those enforcement provisions in an entirely new court that will have enforcement as one of its main and primary functions. The Opposition differs entirely with what the Attorney-General said in introducing the measure.
– Why does the Leader of the Opposition say that?
– I am going to deal with that. The Attorney-General said that the issues to be dealt with are emotionally charged and ought not to be left to the ordinary courts such as the State Supreme Court or the High Court. J. put it to the Attorney-General, who knows the law, that there is scarcely a litigious matter in the country that is not emotionally charged so far as the parties are concerned. After all is said and done, State supreme courts deal with every other phase of human relationship, and it is difficult to believe that they would not be competent to deal with matters affecting the enforcement of awards. It is the type of thing they are doing every day in the year. The Attorney-General said it was not suitable for them to enter into the industrial atmosphere which was so emotionally charged. I simply say to him that all litigious matters are causes of excitement, irritation and emotion, and that his answer is no answer at all. The Opposition feels that the Government is making a grave mistake in creating a new court charged with enforcement powers primarily, because the court will, like a magnet, inevitably attract to itself more and more activity in that field of enforcement whereas the Opposition thinks such activity should be less and less. That is a general and quick criticism of the Government’s proposals.
In criticizing the bill the Opposition concedes that the Government has introduced some good things, in particular,, the new principle in regard to conciliators and the taking from the arbitral body judicial and enforcement powers. However, we think it quite wrong to centre this in another and separate court.
I now pass to another phase in regard to which this bill fails, namely, the matter of penalties, and on that point I have foreshadowed an amendment to the motion for the second reading of the bill. The Government, in this amending measure, has made no review of penalties. The history of the legislation shows that, as far back as 1930, all severe penalties and prohibitions imposed on strikes and lockouts were taken right out of the act, with the complete concurrence of the then Opposition, and no administration has restored them since. It was realized that this is not a jurisdiction in which breach of orders and awards constitutes criminal activity. This is a jurisdiction dealing with the regulation of industrial relations, and in the view of the Opposition the Australian community will not accept the proposition that men, who assert their right to strike and embark upon direct industrial activity, should he subject to imprisonment, and have their activities treated as crimes. It is not part of the proper concept of conciliation and arbitration which the Opposition upholds.
In 1947, when the then AttorneyGeneral (Dr. Evatt) introduced the Commonwealth Conciliation and Arbitration Bill, he circulated in the Parliament a summary of the proposals it contained, and paragraph 11 dealt with penalties, which outlined the Labour party’s attitude, and which it still maintains. The right honorable gentleman said -
The bill retains all the methods provided for in the existing act for securing the acceptance and observance of awards. One extreme view, presented by a section only of employers, was that ali the penalty clauses which wore repealed by the Scullin Government in 1930 should now be restored. This view we have rejected. It was not put forward by all employers, but by a section of them. Equally we have rejected suggestions that all existing disciplinary powers of the court itself should be eliminated. The existing provisions relating to the deregistration of organizations, the secret ballot under court orders, the cancel! a.ti on and suspension of awards and the enforcement of sanctions inserted in awards are therefore retained.
That was the attitude of the Labour party at the time.
– When it made the court a superior court of record.
– Yes, and I think the Attorney-General (Senator Spicer) might well know how that came to be done.
– The honorable senator knows what was its effect.
– I know perfectly well what was its effect, and why it was done. I happened to be acting as Attorney-General during the absence of Dr. Evatt, when the matter cropped up. It was suggested that the court should be made a superior court of record, on the ground, primarily, that that court, as then empowered, could not deal with a newspaper, which was a corporation, for contempt of itself. That was the real reason. Representations were made by the judges themselves, and no power of committal for contempt was given to them by anything that the Labour
Government did in 1947, or at any other time, which would enable the Arbitration Court to treat, as contempt of itself, any breach of orders or awards of the court.
– But it naturally follows that the Labour government did that by making it a superior court of record.
– It was the only court in the English-speaking world at that time which did not have the power.
– If honorable senators will listen I shall develop the theme on which I began. The 1904 aci contained the provision, which is now found in section 29, which gives the Arbitration Court power to enjoin a party for the doing of anything in contravention of the act. That is as far as Labour carries it. It was not the intention of the Labour Government to give contemppower over breaches of orders or awards, and the High Court of Australia, in the Metal Trades judgment, on the 5th March, 1951, held expressly that the act did noi do so. That decision confirmed what was the Labour government’s intention. The metal trades employees went to the court for a writ of prohibition directed agains! some procedure of that kind, and the High Court said, very plainly, that specific penalties were laid down in the act for breaches of orders or awards, which were exclusive and comprehensive, and that nothing in the rest of the act touched them at all. The High Court made the writ absolute, and issued a writ of prohibition to the Arbitration Court. Thai judgment justified Labour’s attitude, and the Attorney-General knows, perfectly well, unless he has forgotten, that that was the decision of the High Court.
The government of the day, in 1951. was so annoyed and piqued by that decision of the High Court that, two days later, on the 7th March, 1951, it rushed legislation into Parliament to give the most complete power of contempt to the Arbitration Court in respect of breaches of awards and orders of the court. That was a power which, if the Government left it in the bill, would have given that court power which the Labour government never gave, as the High Court said - to impose unlimited gaol sentences, or fines of unlimited amounts. This
Government took that action in a spirit of pique and rebellion against the decision of the High Court, but the double dissolution of Parliament saved that measure from going further. It was introduced, debated and passed through another place, and although the measure came to this House, it was never debated here. I have given the history of the matter, Labour’s attitude, and the decision by the High Court of Australia.
– Was not a provision introduced after the double dissolution of Parliament, making it a contempt to breach an award?
– I am coming to that.
– When the honorable senator says “ it is Labour’s attitude “, it is not Labour’s attitude in Queensland or in South Australia.
– I am talking about proceedings in this Parliament, and r will not be diverted by the interjection of the Attorney-General. After the double dissolution of Parliament, a bill was introduced into this chamber which added to the provision to enjoin against a breach of the act, words to the effect “ or against any breach of an order or award of the court That measure was introduced by this Government, and for that offence the penalties which could be imposed were not unlimited, but very severe - £500 for an organization, £200 for an employer or an official of an. organization, and £50 for an individual. It is true that the court was made a superior court of record, but that did not have the result which the Attorney-General claimed a moment ago, and now says nothing about.
– I still claim it.
– The 1951 legislation made breaches of orders and awards of the court a contempt of the court itself, attracting the very severe penalties which I have mentioned. Honorable senators on this side consider that the act already contains quite ample powers. I refer the Senate’ to proposed new section 16a a, paragraph (c), where the commission may include in awards clauses relating to penalties of up to £100 on an organization and £10 on an individual.
The Opposition does not seek to disturb that position. The next matter that I wish to refer to is clause 11 of the bill which seeks to amend section 59 of the act. Again, there are penalties of £100 in respect of an organization and £10 in respect of an individual for breach of an award. Section 78 of the principal act still remains, where officers who incite the disobedience of orders and awards may be fined £100.
Then there are the provisions in proposed new section 16a which will authorize the commission to cancel an award where there is a breach of an award or order - an award or order can be wiped out or suspended. That is, ] submit, a major punitive power. There are also the provisions in section 83 of the principal act providing for deregistration of a union with all the consequences which flow from that act, including ejectment from the court, denial of access and the ceasing to be a corporation for the purposes of the act.
– The Opposition would not abolish those provisions?
– Not any of them. Labour recognizes that we are now dealing with compulsory arbitration which must have a two-way effect, that is. on employees as well as employers. I am pointing to the specific provisions that we oppose, and I am arguing that in this particular jurisdiction, which is quite foreign to the element of crime, they are adequate for the purposes, and have not been proved to be deficient.
– Which provisions does the honorable senator specifically object to?
– The provisions in section 29, paragraphs (a) and (c), of the Conciliation and Arbitration Act - that is, the contempt provisions which run through the procedure of awards, including prohibitions against bans and restrictions of various kinds. After such a ban an order is sought under the new contempt provisions, and the organization is enjoined and ultimately dealt with for contempt. We object to those provisions.
– The Opposition objects to injunction and contempt?
– Yes, and we believe that, as the trade union movement argues very strongly, they should not be included. I refer honorable senators to page 9 of the report of the federal executive at the last all-Australia Trade Union Congress.
– Do those objections nl so include employers?
– Yes, I believe that those provisions are foreign to the whole scheme of conciliation and arbitration, importing the arrest and imprisonment of an employer or an official of a union. “We think that is quite foreign, to this field of industrial relations.
– The honorable senator does not object to clause 5?
– I have already recited the particular clauses to which we are objecting. [Extension of time granted.] I thank the Attorney-General (Senator Spicer) and all honorable senators for the opportunity that they have given me to continue my argument, t hope that I shall not take undue advantage of their courtesy. I desire to deal with appeals and references, and the certification of agreements. I also want to say something about union ballots, public interest and constitutional change. I believe that it might save time if 1 cover the whole position with some comprehensiveness.
I now refer the Senate to the latest report of Acting Chief Judge Foster, in which lie pointed out that there were at least 25 applications under the contempt and injunction provisions of the Conciliation and Arbitration Act last year. That statement appears on page 10 of His Honour’s latest report, and it is also stated that the number of applications dealt with in the contempt and injunction proceedings was 25. I suggest that that 1*3 undue activity in a field which is supposed to be concerned with conciliation and arbitration, covered by an act which has such high-sounding objectives as those which have been written into it.
The Opposition, and the trade unions, fear these provisions, because not so long ago we had the combination acts in England which made it a criminal conspiracy for men to combine together in unions of the type that we are dealing with. It was not until 1875 that the element of criminal conspiracy was removed, and then it became a civil tort punishable in damages for men to picket and try to interfere with work going on in a place where a strike had taken place. The men taking such action were open to be mulcted in damages, as also was the organization to which they belonged. Action along those lines was taken up to as recently as 1906. Moreover, it was not until 1913 that trade unions in the United Kingdom were allowed to use their funds for political purposes.
We do not want to take any steps back towards those days, and I believe that every honorable senator will agree with that sentiment. There is a feeling in these injunctions and contempt proceedings that we are on the way back - that we are taking steps in the wrong direction. In any event, that is the view taken by the Opposition.
Now, let me pass to the important matters of appeals and references. In the 1947 act, which was Labour legislation, the decisions of commissioners were stated to be final, and through that we achieved one of the essential things in this field, that is speed in resolving disputes. I suggest that speed is almost as important as getting a right decision in order to cure the ill feelings that develop during a dispute. It is most important to avoid bad feeling, inflamed tempers and that sort of thing in industrial relations. The most urgent thing in the whole field is that when a dispute is pending or has arisen, there should be quick intervention and, above all, a speedy resolution of the matter. That is why we put such emphasis on the work of the commissioners. They gave immediate decisions which could not be appealed against.
Owing to what has happened since the last Labour Government relinquished office - and our legislation had had a very brief period of operation to that time - we now realize that what we feared has come to pass - that is, the gradual domination of the commissioners by the judges. I suggest that that sort of thing will happen again. It was completely apparent that that would happen from the time when, early in 1952, Mr. Commissioner Galvin decided that, in the public interest, he would do nothing about margins. He was followed by Mr. Justice Kelly in Adelaide, on the 6th February, who put fourteen points to a meeting of representatives of employers and employees who had come together to discuss standard hours. His Honour covered the whole range of economics, and stated that he considered that dividends should be reduced and reserves should be reduced, and that the reduction should go into revenue; also that overtime should be worked for at least four hours each week at ordinary rates of pay. He also said that there should be a standstill of the basic wage and that no additional marginal payments should be awarded for three years. Those are the views that the judge expressed quite publicly.
– “Who did that?
– Chief Judge Kelly, in the Arbitration Court at Adelaide on the 6th February, 1952. For years after that moment, no conciliation commissioner would entertain the question of margins. It is obvious that their minds were influenced by the public pronouncement of the judge that there ought to be a standstill on this question.
Then, we come to the act introduced by the present Government in 1952, which provided for three types of appeals - reference from a commissioner to the court, reference on a question of law, and, finally, complete appeal after the whole matter had been disposed of by the commissioner.
– The honorable senator is making a shocking indictment against the unfortunate conciliation commissioners.
– I would not argue with the honorable senator about that.
– The honorable senator is almost insulting them.
– Indeed, I am not. I am saying that this is the fact, and I am confirming it. I am saying what is obviously the fact. It is completely clear that the judges of the Arbi tration Court, as hitherto constituted, have had a potent and dominating influence upon the work and minds of the commissioners from the time when the principle of appeals was instituted.
– That is a terrible statement.
– It is not a terrible statement. It is true. Where is there any moral turpitude in it as a fact ?
– It emanates from a belief, and it is sought now to discredit the commissioners.
– Nothing of the kind. Far from wanting to discredit the commissioners, I point out that above everything else the system of appeals instituted by this Government has made the commissioners subservient to the judges because they know that they are appealable at every point.
I wish now to refer to what I said when the 1952 bill was before the Senate. I shall quote one brief extract which puts very well what I still feel about it. 1 said -
What I have said on these three matters-
That is, the three principles of appeal - leads me to the important conclusion that this procedure is designed to undermine the confidence of the conciliation commissioners. A conciliation commissioner will never know when a matter is going to he taken out of his hands or when questions of law will be raised by the people appearing before him. If requested, he must refer them to the court and wait its determination. Even when he has reached a decision, perhaps after a hearing lasting for months, he will not know whether it is to be appealed against and perhaps over-ridden “ by the court. He will be made hesitant in the exercise of his jurisdiction. His decisiveness and certainty will be completely undermined. I mention that in explanation of my earlier statement that although this measure is not a frontal attack on the authority of conciliation commissioners, it is an oblique attack for the reasons that I have given.
There is nothing that I can add to that. It has turned out to be the exact position. I do not want to refer to the whole line of appeals, which I might do. where there has been great delay, where the element of speed has been eliminated and where the confidence of the conciliation commissioner himself has bee.n undermined. I merely refer in passing to the tramways case in Adelaide in which, after twelve months, an appeal has not been resolved and a union of some 1,4’00 members has had to spend £6,000 on the appeal. The Senate will remember what happened in the appeal from the Public Service Arbitrator. I cite those two cases without going into more of them.
– What about the margins case?
– To what is the AttorneyGeneral referring ?
– If it had not been for the appeal provision, there would not have been a decision of the Arbitration Court granting margins against Commissioner Galvin’s decision.
– Yes, but Commissioner Galvin should have made the decision and the decision, having been made, should have stood and not been appealable. I will come to the general question presently. It is rather interesting to know what has happened in connexion with appeals. According to information that has been supplied to me by the Australian Council of Trades Unions in conference, there were 29 applications for leave to appeal under this legislation. Sixteen were made by the employers, and in fifteen of the sixteen cases, leave to appeal was granted. There were thirteen applications by the unions and of that number seven were granted and six refused. Of the fifteen appeals made by the employers, nine were upheld, two were rejected, two were withdrawn, one was dismissed and the hearing of the other two has not yet been completed. Out of the seven appeals that the unions were allowed to make, all were dismissed. So, in actual fact, the employers succeeded with nine appeals and the unions were successful in none out of their thirteen applications.
– They must have had poor cases.
– That is a possible conclusion. All I am putting to the Senate is that we are trying to get the ordinary trade unionist to approach this matter with an understanding of the position. What he sees and what is put to him by his leaders is that the employers can win appeals while the trade unions cannot.
– They might not have sound grounds for their appeals.
– The honorable senator may be quite right but I am not arguing that at the moment. One would have to go into each of these appeals in order to determine that. Does it not strike even the honorable senator’s mind as extraordinary that employers’ appeals are successful quite often while employees’ appeals are never successful? Nothing will convince the ordinary trade unionist or trade union leaders that this appeal provision is not heavily loaded against them and in favour of the employers.
– I will not have that, at all.
– I am merely putting the trade unionists’ viewpoint. What I say is that these appeal provisions should be abolished because of the delay they entail. There ought to be quick and certain decisions which, once made, are not appealable.
– Not because they are loaded against the worker?
– I am not putting it on that ground. I am merely saying how the trade unionist feels about it. I am not saying that the court or anybody is unfair. I am not even implying that, directly or indirectly.
– Would it not be fair to assume that the court would determine these appeals on the law and on the merits of each case?
– It would be fair to do that. I admit that, and I am not throwing any bricks at all; I am simply pointing to the ultimate result and the effect it has on the mind of the trade unionist.
– In short, the honorable senator is saying that litigants like to win their cases, not lose them.
– Of course, they do. Now let us come to the question of agreements. We feel that once the parties to a dispute reach an agreement, even if it involves variations of any of the four great matters committed to the presidential members of this commission, that agreement ought to be certified in the interests of good relations.
– What about the public interest?
– That is a factor. I have to deal with that. My first comment on it is that it is a very indefinite term. Again and again we have the expression that matters have to be done “ in the public interest “. It is vague and indefinite ; and it becomes a matter of opinion in the mind of each individual who addresses himself to it. I think, quite frankly, that it is not fair to a body like the Commonwealth Arbitration Court to make it the absolute, custodian of the public interest when the public interest is a matter that is not represented before it.
– Has the honorable senator any information as to refusal to certify to agreements on the ground that they are against the public interest?
– Yes. That was done quite recently in the builders’ case.
– I have referred to that.
– That is so. It was done quite recently. There have been instances of refusal. One can concede that the public interest is a factor in every situation, but I am suggesting to the Attorney-General that perhaps this is novel and has not been considered up to date; and I put it to him and the Senate for consideration at some future date. After all, if the public interest is to be concerned, whose duty is it to watch the public interest? Who is the custodian of it absolutely? In the first instance, it is the primary responsibility of the Government. I think that a new approach will have to be made to serving the element of public interest in this matter by including some provision, whenever the question of the public interest is raised in these arbitral proceedings that there shall be notification to the AttorneyGeneral. He would need a staff of a new character with arbitral and industrial experience. I believe he could determine - and has the responsibility of determining - when he should act in the public interest.
– On notification from the court?
– Or from the commission. There is no reason why, when public interest is raised in any proceedings, there should not be an immediate notification to the Attorney-General, who would then decide whether or not he had a viewpoint to put in the public interest.
– Refer it to the Parliament ?
– That is the position, in short.
– The public interest is always involved.
– I agree, but it is involved in minor and major degrees, and it should be competent for a government and the Parliament, through its Attorney-General, to be notified and decide whether, through the instrumentality of his officers, or not, he will intervene. As a member of a government charged with full responsibility for the public interest, he should be prepared, not to take a negative attitude, but to put a viewpoint.
– As the Government is the biggest employer in the Commonwealth, he would have a definite assignment there.
– Yes, he has a definite assignment. I think that is one aspect that must be examined. Public interest must be served, but it is quite wrong to throw the whole responsibility upon a body such as the Commonwealth Court of Conciliation and Arbitration, which has not been elected by anybody, has no responsibility to anybody, and on many occasions has not had anybody representing the public interest before it, and charge it with all the responsibility of preserving the public interest. Surely, that is a political responsibility, and it should be served at the political level.
– It would be a departure’ from: the normal, practice.
Senator- McKENNA - The AttorneyGeneral’ is authorized to intervene,, whenever he thinks fit, in the major matters-, and on questions of reference and appeals.. En the matters of reference and appeals’, the present bill purports t’o allow the A ttorney-General to intervene at’ any time.
E shall now direct my attention to union ballots, and I shall concentrate what I proposed to say. The Opposition believes that there should be a return to the provision that was made by the Labour Government, in. June,. 1949,. to cure irregularities and malpractices- in union ballots. I have a report by Judge Dunphy, who administered the regulations under the legislation. It was attached to a report” of the Acting Chief Judge- of the time, Judge Foster, covering, the period’ from the 8th October, 1949, to October; 1950, and in it Judge Dunphy stated!-
The litigation so far resulting has tested the new legislation pretty thoroughly . . . F oan say that it is really a very well drafted division and is reasonably capable of achieving Parliament’s main purpose’ . . . As _ a general summary, it. may be- said that with respect to the matters which have come before me, the legislation has provided ample procedural scope; has allowed for efficiency with respect, to the actual conduct of the inquiry; and has provided effective remedies for any irregularities which may have been discovered.
– That is only after the horse has bolted.
– Oh,, no. The broad objection that we have to the legislation of the Government, which it will not review, lies in the power that it confers on small minorities in unions to invoke the court - or an outside body - to direct the Chief Electoral Officer to conduct a ballot”. That is the principal provision to which we object; The legislation of 1949 was accepted in the following September, by the congress of the’ Australian Council of Trades Unions and the trade union movement adheres to that position. It was a revolutionary step for it to take. I had a great deal to do with, persuading the unions to accept that provision- following the
Sharpley disclosures of that year. We object to the fact that the Government has not done anything about it.
– Has the Leader of the Opposition read Judge Dunphy’s report of tho 28t)i October, 19521
– I referred to the report covering the period to October. 1950, after the legislation was passed. I do not recall the other report at the moment.
– The Leader of the Opposition is referring to the Labour Government’s legislation I
– Yes, after our own legislation- had been operating1 for eighteen months, Judge Dunphy indicated’ that it was operating adequately and well, and we suggest that it should be restored. We think that this bill will render more unstable the very unhappy conditions that exist in industry to-day where the basic wage- has been pegged for three years, apart from the rise of 10s. that was- given recently. Margins of a great many men operating under federal awards have not been adjusted to their satisfaction, and there is a most annoying conflict, of State and Federal jurisdictions in the industrial field.
Many, men, in order merely to preserve their standard of living, are obliged to engage in two jobs, or to work a great deal of overtime-. They are very resentful of the fact that they are asked to carrythe whole burden of halting inflation by accepting die pegging of wages and similar measures. They resent the fact, that additional burdens of taxation- - through their beer, their smokes and pleasures - have been thrown upon them quite recently. Apart from a tax of an even shilling over, all companies; whether they a:re making excessive profits or not, the Government has set its face against the problem of controlling prices and profits. The- Opposition believes that this bill will not relieve that unrest, and might well add to it by more’ confusion and by difficult procedures.
We are reaching a position where the trade union movement is losing faith in arbitration for all the reasons that I have presented’ to the Senate. All I can hope is that this Parliament will go to the people one of these days as’- a united’ force.
– Did not the Leader of the Opposition intend to speak on union ballots?
– I did so briefly. [ had intended to speak at much greater length and to develop many more themes, but I indicated merely our main objection to the legislation superimposed on our 1949 legislation, and recommended the return to the Labour Government’s legislation of 1949. I was about to conclude on this note : I hope that this Parliament, and the parties in it, will be able to go to the people one of these days and put to them a considered plan on economic powers for this Parliament that will enable it to function as it should be able to function. Those powers would include powers over appropriate terms and conditions in the industrial field and powers over prices and profits. There are many others upon which I do not propose to touch now. I hope that I shall live to see the day when we can have some degree of unity in approaching the people on these matters.
– About 10 minutes remain before the suspension of the sitting, and in view of the break in the proceedings that will then take place, I intend to refer to a particular matter upon which the Leader of the Opposition (Senator McKenna) has spoken. I am very interested to find that the Opposition is still plugging for reinstatement of the old Labour provisions in regard to secret ballots, provisions which were heavily loaded in favour of the wrongdoer. That legislation imposed a great onus on anybody who wished to investigate the propriety of a ballot and to take the real position before a court. I marvel at the ingenuity by which some of these frauds have been uncovered. I think there would be no more difficult field to investigate than that of the propriety of ballots.
The Leader of the Opposition chose - a remarkable coincidence, I thought - to read from a report of Mr. Justice Dunphy, of 1952. Merely by chance, I happen to be in possession of a report which has arrested my attention and which was not on my file. It is a report by Mr. Justice Dunphy to the Chief
Judge, dated the 28th October, 1952, following investigation of the secret ballots held in the Ironworkers case. I should have thought that Mr. Justice Dunphy’s decision in that respect would have been one of the highlights of his performance and of such political significance that anybody who was seeking to cite Mr. Justice Dunphy as an authority could scarcely inadvertently have overlooked it. I remind the Senate that His Honour stated -
Here was an example of the faction fight par excellence, the contesting parties being Communist or Left Wing Group on the one side and A.L.P. or Right Wing Group on the other. I eventually found undoubted evidence of fraud and forgery with respect to the ballot-papers counted in both the State and Federal elections, there being some thousands of such papers totally involved.
Then he set out the differences between the Communist-controlled ballot and the court-controlled ballot. I give, as an instance, the difference in respect of the election of a national president. The Australian Labour party candidate, under the Communist-controlled ballot, received 2,216 votes, and the Communist candidate received 4,022 votes. But when the court conducted the ballot, with the same candidates, the Australian Labour party candidate received 11,916 votes and the Communist 5,540 votes.
After that arresting experience, the significant point, in reply to Senator McKenna’s argument, is that the judge went on to say -
As pointed out above there is only one live inquiry still in the list. I am optimistic enough to predict that through the combined effect of the inquiries already conducted, the jurisdiction exercised by the Court under the “ direction for performance of rules provisions “ of section 81 and the amended “court controlled ballot “ provisions of section 90m-
Those being the provisions which this Government inserted in the act in 1951 - that we may be getting beyond the necessity of this type of inquisition.
No doubt the judge used the words “ we may be getting beyond the necessity of this type of inquisition “, because that legislation enabled the court to institute a ballot. He continued -
Certainly no new. application has been lodged since the 27th February, 1952. I think it is only fair comment to record my view that, history has shown this legislation to have been necessary and effective.
That is, section 96m, introduced by this Government in 1951 -
As you arc aware its terms withstood more than one- constitutional challenge in the High Court and even in minute procedural detail it has been found adequate without undue recourse to the regulation-making power. When one remembers that this was original legislation it speaks highly for the skill and foresight of the draftsmanship involved. An outstanding aspect is the dove-tailing of the new legislation with the older sections - in particular section 81.
That, I think, is a record that should come to the notice of the Senate.
I adopt what Senator McKenna said concerning Mr. Justice Dunphys special experience in this line of inquiry and the application of this legislation. Surely, if Senator McKenna. thought so highly of the opinion of Mr. Justice Dunphy as to cite him as an authority, when the honorable senator thought that the last of His Honour’s conclusions was that of 1950, to which he referred, having regard to this 1952 report, will not the honorable senator, in all reason, abandon that aspect of his approach? Will he not say that, upon the certificate of a judge whom he cited as an authority on this aspect, he is content to take the word of that judge that the amending legislation was effective and skilfully designed for the field to which it was directed?
– But it has created another field.
– I am always ready to be informed on this subject, because it is a matter that affects the industrial relations of more than 1,000,000 working people in this country. In my view, it is a subject that should evoke from every member of the legislature the best that he can contribute towards moulding legislation that will confer upon the parties to industrial disputes the benefits of proper methods of adjustment. I fully agree with Senator McKenna’s concluding remarks that all the legislation in the world will be futile unless the parties to a dispute have sufficient sense of purpose, responsibility and elementary goodwill to impel them to take advantage of the legislation, so that the organization that we set up may work in the interests of both parties.
The other matter that engages my attention is the reference bv the Leader of the Opposition to appeals and references. In 1947, the Labour Government conceived the idea that it would, in the graphic language of the Speaker of another place, “ ringbark “ arbitration. Having divested the judges of a large field of jurisdiction, commissioners were appointed exclusively to exercise arbitral functions in a wide field of this jurisdiction. Apparently, that separation of functions was frustrated somewhat radically when this Government provided procedure for matters decided by the commissioners to be referred to the court, or for a decision of a commissioner to be made the subject of an appeal to the court. When I am reminded of the intense litigation - I hazard, as a guess, that seven or more High Court appeals arose from that ill-conceived demarcation of jurisdiction alone - I should think that some procedure, whereby the gap between the commissioner and the court might be bridged and the two made to co-operate, would be welcomed by any one who had the spirit of arbitration and conciliation at heart. All that is said against referring particular matters that have been before a commissioner, and having an appeal to the court, is that it conduces to delay. The number of cases that Senator McKenna mentioned seemed to me to be a small and insignificant percentage of the total number of matters with which the commissioners had dealt.
Sitting suspended from 5.45 to 8 p.m.
– In this country, when we speak of the system of industrial conciliation and arbitration, we are inclined to think that we have something that is very special. I have seen the Hansard report of the proceedings in another place in which, even in this year of 1956, there are the most eulogistic references to this system, in terms that suggest that it excites the envy of the world. In order to put this matter in proper focus, I point out that it was merely by accident that Australia happened upon the system of conciliation and arbitration in 1900. It so happened that the House of Commons passed a bill in 189.6 ‘.providing for .conciliation and arbitration in relation ito industrial disputes, but :the legislation proved to be ‘a dead letter. It bad ‘been preceded in the House .of “Commons by other bills in, I think, 1872, 1867, and even as early as 1&24. That Great Britain rejected such a ‘System is something we , should ‘reflect upon. New Zealand accepted the system in 1894 and, of ‘Course, due to .the widespread strikes that prevailed in Australia in the !890’s, this matter was one which -excited men like Higgins and Isaacs, who were very ‘keen workers :foi industrial improvement, -a cause -that excites >our admiration. And ‘then, it just w happened that, ‘because that was the climate of opinion -at the time, ‘a provision in relation to arbitration was put into the Australian Constitution. When I recall how the introduction of this system marked the beginning of a terrific expansion of trade unionism in this country, and that all who live close to the aspirations of the working man must realize that trade unionism is a means whereby its objectives are attained, T should ‘think that they ‘would be very jealous of developing this system along lines that would continue to bring real benefits to the working nien of Australia. T. ‘myself, am very doubtful whether those who claim to be most jealous of the rights of the working man are advocating policies ‘that will bring the maximum of benefit to the working man. Some ‘of them, indeed, by their arguments and example, are doing just the opposite.
Senator McKenna this afternoon referred to the Trades Disputes Act 1906, an act which, I suppose, put a close to a century of conservatism with regard to the country’s outlook upon trade unionism, and granted ‘to trade union activities almost complete immunity from “legal responsibility. It is interesting to note that Holdsworth in his History of English Law stated -
The fact that it was possible in 1906 to pass a statute, the Trades Disputes Act 1900, which perpetrated the enormous injustice of freeing trade unions of masters or men from liability .for torts is due primarily to the prevalent ‘laisser faire doctrines which induced Parliament, at the end of the 18th and the beginning of the 19th centuries -to ‘refuse to set up any legal machinery for the equitable adjustment nf industrial disputes.
I have taken the liberty of .reading that extract to the Senate because I think it is pregnant with fundamental thought. It is a matter of extreme satisfaction to us to know that, two years before that most anomalous legislation was passed by the House of Commons, we .set up ian arbitration court in Australia in 1904, which provided the genesis, I suggest the real beginning of the life, of trade unionism in Australia. I know that trade unions were legalized before then, but this -was the actual beginning .of trade unionism in this country - this time, beneath the law. There have always been penalties in the act providing .for deregistration; and, I think, for quite a time, .there was provision for the cancellation of awards and for other sanctions for offences against the real purposes of trade unionism.
I understand that honorable senators opposite are devout admirers df Mr. Justice Higgins’s contributions to ‘this field of law. .Anybody who has any regard for his work and aspirations, I should think, would be very keen to carry on the tradition cif moulding trade unionism in conformity with the principles of the Arbitration Act, which, as I ‘have said, imposes sanctions against trade unions for breaches df the provisions of the act. All that the Constitution provides is that this Parliament shall have power to legislate with respect to the settlement of industrial disputes interstate by conciliation and .arbitration. We have no power to legislate in the general field of industrial affairs. In exercising our power .to legislate for conciliation and arbitration, no parliament has yet attempted the task of defining the principles by which the arbitrators and conciliators should proceed. I know that it is the subject of keen debate on constitutional grounds, but I want to emphasize the point that the structure of the Australian wage system is the (product of the judges of the Arbitration. Court. ‘The basic wage, the margins, and the cost of ‘living formula were not given to the court by any parliament; they were ideas which the judges put forward, and they formulated and developed the system that has contributed to an almost immeasurable degree to the uniformity *o’f industrial adjustment in
Australia, and uniformity is tremendously important for the purpose of industrial peace.
– Does not the honorable senator think that this idea was originally conceived by the unions?
– I do not say it is everything. I say that it is tremendously important to have uniformity. Anybody who reflects upon the discordance to-day between Federal and State awards sees in them one of the exacerbating influences that exist in the industrial field. Since the judges have formulated that system, this Parliament ought to take proper thought before creating the amalgum commission that is provided in this bill. [ shall return to this aspect of the matter in a moment or two. After having referred to the system developed by the judges, I want, next, to refer to a contribution which Sir John Latham, out of his vast experience, has gone on record as expressing, as to the constitutional basis. In a pamphlet that he entitled, *’ Industrial Power of the Commonwealth Parliament,” published on the 22nd October, 1952 - I ask honorable senators to note that the date is a year before the suspension of the cost-of-living adjustments - Sir John said -
It is the court which determines wage policy - policy as to hours and the like - not Parliament. Wage policy is plainly an important element in genera] economic policy. The Commonwealth Parliament cannot determine any wage policy, hasn’t got anything to do with it, has no power. The State Parliaments can; but anything they may determine is subject to being over-ruled by the Arbitration Court. The Commonwealth Parliament has full power over tariff and excise duties which affect industry. The Commonwealth Parliament controls credit and currency and, recently, investments. . . .
Later, he says -
The Commonwealth Parliament controls the matters to which I have referred - tariff, credit, investments, and the like. Control of wages is in different hands. It is impossible in these circumstances to have an integrated economic policy in Australia. Fundamentally important and essentially related elements are in the hands of separate and completely uncoordinated authorities.
When we realize that the task facing this Parliament is to get some stability in ‘the Australian economy and bring it into some sort of focus with the economies of countries with which we must trade or lower our standards of living, it is ‘a very sobering thought that this Parliament has no direct authority with regard to wage policy. All that the Parliament can do is set up a court whose only functions are conciliation and arbitration. We must appreciate the experience of Sir John Latham, first as an eminent member of the bar, then as an eminent Attorney-General in this Parliament, and then as the Chief Justice of the High Court of Australia. Out of that variety of experience, he has contributed the thoughts which I have just read; and I think they are worth very close and earnest study. He goes on to develop the idea that, sooner or later, the proper agency of government in whom should repose the responsibility for wage justice as an element in economic adjustment, is the Parliament. Parliament is the only place where the people’s representatives sit, and, according to theory, work. No doubt, the constitutional committee that has been set up will take that matter into consideration.
The other thing about Parliament’s power in this field is that except insofar as the awards of the Arbitration Court are expressed to operate on this or that person in an industry, the orders and awards of the Arbitration Court have no effect. As the Leader of the Opposition said this afternoon there is no jurisdiction in the court to say, for instance, “ We are going to fix an award for the metal trades industry “. It cannot make a common rule which affects the operation of an industry generally in the way that a wages board can. But even then, it affects only those selected industries in which disputes are created between actual persons carrying on trade within them. That leaves the current assessment of the industrial field of Australia at the present time subject to State tribunals, whether they be arbitration courts or wages boards. In this particular constitutional complexity we were no sooner out of the wood with an arbitrary increase of the basic wage in October, 1950, followed by a terrific spiral as a result of the application of the automatic statistical formula for the cost of living, than, in October, 1953, elementary wage justice demanded recognition for the man with a margin for skill. Then, the differential application of that principle as between Federal and State awards created confusion in the economy of the country. That is certainly one of the major political problems at the moment, and one as to which I should like to have seen a resolute effort made to convene an early conference of the Premiers of the States for the purpose of seeing whether or not some agreement was possible in order to stabilize that particular channel of the economy. That is an essential question which demands the best of statesmanship in this country at this moment. Until that handicap is resolved this bill is going to sit very unevenly on the economy of the country. In that particular imbalance of the economy as between Federal and State wage justice, this bill is going to be confronted with a particular handicap at birth.
I pass next to the real occasion of this bill which, I suppose, is the decision of the High Court in the Boilermakers case. I, as a Liberal, say that one of the cardinal things about a federal constitution is an absolutely independent judiciary which is untrammelled by having imposed on it anything of a legislative or executive nature and which does nothing except judicial work. In the two aspects it remains completely, exclusively and independently a judicial instrument. When the High Court found that the true function of the Arbitration C’ourt was not to interpret the law but, as between man and master, to set out a code of conditions under which they should work in future, that was legislative in its nature. The particular aspect of the Arbitration Court that has developed since 1930 has been not as a tribunal settling disputes between X and Y, but the fact that the court, by its public inquiries and the wide ambit of the various basic wage, standard hours, cost of living and margins cases, has developed a stature equivalent in importance to any legislature in the country. As was pointed out by Sir John Latham, these edicts and awards operate in such a way that anything that is passed by this Parliament, or a State parliament, inconsistent with an award has simply no effect. Therefore, the Arbitration Court was an economic legislature operating in a judicial capacity, but the High Coursaid that it was, in some respects, acting unconstitutionally. I pause merely to say that I am amazed to find that it is considered, for the proper exposition of the Australian Constitution, that that decision should be called in question by the Privy Council. These clauses in the bill to which Senator McKenna referred, continuing the old Arbitration Court and making provision for new appointments, do not in face of the provisions giving judicial authority to the old Arbitration Court, reflect great credit on us as a Parliament. The highest court in thi.land has pronounced as unconstitutional and invalid the provisions in the old act to the same effect. We are the Parliament of this country, upon the validity of whose acts the High Court is constituted to decide, and I take exception to the inclusion in the bill of provisions which are contradictory to the decisions of the High Court, and expressed to confer a jurisdiction which, on the decision of that court, is invalid. When I find provisions in the bill enabling the Executive, by proclamation, to repeal those old provisions, I think it is simply a legislative device to provide a springboard for appeal to the Privy Council against a decision which should be applauded by everybody who rejoices in that British freedom which conies from an independent judiciary, in the industrial sphere, as well as in the ordinary civil sphere.
So much for those transitory provisions. The part of the bill which establishes a new industrial court proceeds, on the basis that the Boilermakers decision, although under appeal on a question of law, is, nevertheless, accepted as suggesting to the Parliament that there is great advantage in separating the legal enforcement of industrial law from the actual making of awards and the fixing of terms and conditions of employment. That is a great improvement. If, divorced from the arbitrator, there is another tribunal whose sole function is to enforce the industrial law, there should be more co-operative confidence in the arbitrator, and none of the resentment which inevitably comes when the one authority gives an adverse decision, and then enforces the law in respect to it.
Prom all points of view, the creation of the new Industrial Court is a step in the right direction. However, for myself, 1 wish to add that if the Government had declared that its intention was t.o appoint to that court the most eminent judges or members of the bar that it could find, for the interpretation of this industrial law, it would be doing greater service than by simply appointing members from the present arbitration court bench. The division between the seven judges there now will create something of an anomaly. A new court such as is proposed should have come to the field with new appointments, and with opportunity to create a reputation and goodwill in industry - more especially a reputation which might have done great service to industrial law. This court will have the responsibility of issuing injunctions, imposing fines, making orders for deregistration, and orders for contempt of court.
This afternoon I understood Senator McKenna to say that he objects to the court having power to issue injunctions and to impose punishment for contempt of court. I cannot see that there is any valid distinction between those two sanctions, and the power to fine, de-register, or cancel awards. I should hope that all honorable senators would be completely mindful of the need not to be coercive or provocative in this field. However, the strength of law is needed, especially in the industrial field where there is a tendency to combat it, aided by the strength that resides in combination. Consequently this court must be equipped with full power to impose sanctions, but that power must be exercised by judges most wisely and with constraint.
The next functionary in this field which this bill creates is the Arbitration Commission, which is to take the place, as arbitrator in industry, of the old Arbitration Court. I am filled with dismay and disquiet to find that to this commission, at one stroke, judges and lay commissioners are to be appointed. I have advanced the view here before, and I take leave to mention it again, that the true relationship between the judges and the commissioners should be along the lines of the judges in a court of equity and masters in equity. They would thus perform the function of getting close to the litigant and working out the details of the actual awards from their tremndous practical experience. I totally disagree with the idea of honorable senators opposite, of making an . unbridgeable gulf between the commissioners and the judges. The work of the commissioners must be coordinated with that of the judges. Consequently, their work should be the subject of reference from the commission to the judges - and, indeed, the subject of appeal in the proper case. But this Bench is to be composed of a president and not les.= than two deputy presidents. The minimum, is prescribed, but no upper limit. There is to be a senior commissioner, and not less than five commissioners. I invite honorable senators to contrast that with* the constitution of the Industrial Court., which is composed of a Chief Judge and not more than two judges. I direct particular attention to the condition “ not more “. I do not like that approach. I believe that great trouble may accrue through the possibility of unlimited appointments, and I think that the difference between a commissioner and judge on the one tribunal may well lead to an absolute disappearance of the distinction between the judge and layman in this field of work.
There may be those who do not value the work of judges in the field of industrial arbitration. I have already mentioned Mr. Justice Higgins. I have viewed the last two judgments of the Commonwealth Arbitration Court, particularly the recent basic wage judgment, and as a practical piece of work put together in a form that surveys the economy of this country and then comes to a conclusion, well, it certainly is a contribution to the evolution of our industrial law. I am one who believes that that is the particular line in which the legal profession can contribute to the development of the law, and I shall think it a very sad and dark day indeed for Australia if, in the industrial arbitration field, the line of demarcation between the judges and the lay commissioners is obliterated and the distinctiveness of judges is ignored.
I now desire to mention the matter of conciliation. I am simple enough to believe that it would have given a great spirit to this legislation if the first functionaries expressed in it were conciliators. -I do not understand the argument that -has gone on as to whether the GovernorGeneral “ may “ or whether he “ shall “ appoint conciliators. Of course, I should have thought that the people whom we “most need in this field are the genuine conciliators. I believe that it would be an advantage that their status should not seem to be inferior to that of commissioners by having them placed on a lower salary than the arbitration commissioners.
I have closely studied the New Zealand legislation on this point, and if any honorable senator is interested, he will find that the New Zealand statute devotes quite a. considerable chapter to the appointment of conciliators and. the creation of a council of conciliation. On reflection, I thought it best not to advance any view inconsistent with the actual theme of this bill, because the terms of this measure do authorize the appointment of conciliators, and I have no doubt that the spirit of the Government is such that if the conciliators develop their work and show that they are achieving results, that authority will be increasingly exercised and grow of its own momentum. I certainly hope that it does. “When I notice that the arbitration commissioner, on his own motion is bound to take cognizance of a dispute when he thinks it is about to begin, and it is his duty to conciliate beforehand, and that is coupled with the other rather scanty reference in the bill to conciliation, there seems to be sufficient to support a real emphasis on the process of conciliation in the 1 lope that it can work. That which will damn it is the abuse of the conciliation process by the power of unionism in periods of full employment. If unionism had responsible leadership such as that which Sir Vincent Tewson might bring to the Australian trade union world, the process of conciliation would be a means of bringing to this system very great advantages.
Now, I have a few words to say with regard to agreements. The ultimate end of conciliation is to get the parties into agreement, and once they arrive at an agreement the parties are bound, before it becomes effective, to present it to the court for the court’s certificate of validity. I have never noticed, the emphasis before, but this year there is an increasing emphasis as to the function of the court to look to what is called the public interest. I shall have something to say about that particular, matter when the Stevedoring Industry Bill 1956 is being debated, for I have found an extraordinary conception of public interest in the Tait report. The idea seems to be current that master and man in this age and generation, carrying on a perfectly ordinary business, agreeing as to sharing the profits between themselves, are apt as a matter of legal risk to achieve a resultant agreement which is subversive to the public interest. Well now; we shall damage this system if we use it as a wage control system. We want the utmost liberty for agreement between men. and their employers, if the parties can be. induced to arrive at agreement. The penalty of an extravagant agreement on the part of employers will be the extinction of their business.
– Or higher tariff protection.
– It is said, “ Or higher tariff protection “. I say that, that will not happen if we discbarge our duty.
– Do we?
– I shall, not answer that question. I urge that it is a very good thing, indeed an essential thing, that in basic wage decisions the court must have regard to the integration of the effects of its award on public policy on economics. Mr. Justice Foster served the country badly in October, 1950, when he denied that proposition. None of his successors has followed that error. Where it is a question of. certifying an agreement freely come to, then all I can say is that if it is fundamentally contrary to the public interest it should not be certified. However, we damage the system by placing, undue emphasis upon that aspect of the court’s function. I hope that the court would have occasion to deny certification of an agreement only in the rarest and most exceptional cases. Subject to the reservations that I have mentioned, I am prepared to support - or rather not to oppose - the bill.
– We have listened to a learned and intimate disquisition by Senator Wright, on the processes of law, but I am afraid that with the exception of one or two sentences which he spoke, he did not deal with the measure before the Senate. As usual, he has shown his vindictive spleen against certain sections of the workers. He has differed even from the Government on some aspects of the bill, but through the whole of his speech there was a thread of enmity against the great working community of nf this country. For my part, I am concerned with the measure that is at present before us.
I have had a little experience in this field. I think I have appeared before three or four of the present judges of the Arbitration Court on behalf of unions, and whatever I may have thought, I did not go to the extent to which Senator Wright has gone. Unlike Senator Wright, who has mentioned Judge Foster in connexion with the basie wage case, I did not vent any spleen against any of the judges. Whilst I may have differed with the judges from time to time about awards they have made or statements they have uttered, I have always respected all of them, and I have no reason now to do anything but respect each and every one of them in every way.
What I want to know is just why this bill has been introduced. The AttorneyGeneral (Senator Spicer) became quite candid during his second-reading speech. He told us why the bill was being introduced. He said at first that the unions of this country are becoming a little too political. It would seem that because the Government believes the unions are using their industrial organizations for the purpose of gaining political strength in order to obtain better working conditions for their members, this bill must be brought down to curb them. The AttorneyGeneral went further and said that with the exception of one or two industrial organization there was very little industrial disputation. Therefore, it would seem that the bill has been introduced to curb the political and industrial activities of two or three specific unions. That assumption is given strength by Senator Wright’s reference to appeals heard by Judge Dunphy and a statement made by him in giving a decision. Every man has a right to his personal opinion. If he is fanatical, we must make allowances forthat and ignore the fanatical aspect of his statements. We find, therefore, that this bill is brought down because of that fanatical belief on the part of the Government that it is necessary to get rid of some of the people who control some of the industrial organizations because they are using those organizations for political purposes. That seemed to be the whole theme of the Attorney-General’s second-reading speech. That being so, it is necessary to analyse the position in order to ascertain just what the unions have been doing all these years.
Senator Wright said that it has not been a function of the Parliament to decide either industrial conditions or what shall be the basic wage. As a matter of fact, that was a function of Parliament at one time. It was exercised by State parliaments long before we had any arbitration courts. Increases in the basic wage and questions of hours of work were election issues long before the Arbitration Court was set up. After those courts were established in the States, we fought elections on the question of a reduction of the standard hours. The industrial organizations were part and parcel of the political move to get better standards in this country. Now, the Attorney-General tells us that because an industrial union has become political, and because of this fanatical belief on the part of the Government’ that there is something else behind it all, it is necessary to bring down this bill which seeks to split up this and that.
Under the bill, four separate authorities are proposed. The Leader of the Opposition (Senator McKenna) has dealt very ably with the question of the Industrial Court which is so correlated with these other authorities under the bill that none can act without the other. It is proposed now that we shall have a commission. The chief commissioner is to allocate certain duties to his commissioners. We are to have presidents and deputy presidents, but these are merely names; they are all part and parcel of the commission. The commissioner in turn can delegate his authority if he so desires, and eventually we come to the conciliator. SenatorWright says ho does not believe that it is right to revert to the method of conciliation that was adopted in 1947. I wonder if he and other honorable senators on the Government side have stopped to think just what happened when that method of conciliation was altered. Under the old system, if there happened to be a dispute, the registrar of the court in the State in which the dispute occurred was notified. He then notified the conciliator who exercised jurisdiction or control over the particular industry in which the dispute arose. He immediately called a conference. In some cases, the registrar was not notified. Perhaps, it was not possible to communicate with him or the conciliator might have heard about the dispute directly. That conciliator would then call the parties into conference, and time and time again industrial upheaval in this country has been averted in that way. Often when he was successful in bringing about agreement between the parties, nothing was known about the dispute except, perhaps, one or two lines were recorded in the Commonwealth Arbitration Court reports. If he was unable to bring the parties to complete agreement, the conciliator would achieve agreement so far as he could and then adjudicate upon the matters still in dispute.
Generally speaking, he did that with the consent of both parties to the dispute. The moment he announced his determination, it became operative within the industry to which it applied. There was certainly a right of appeal in those days, but it was a right of appeal only on questions of law. Both employers and employees could appeal to the Arbitration Court on matters of law.but the real point is that the conciliator’sdetermina- tion was operative and effective during the ‘whole time for which the appeal was in progress. That is the whole crux of the matter. Under the system proposed under this bill, even if the conciliator is successful in bringing the parties together in full agreement, that agreement will not become effective, if some person should decide to appeal against it, until after the appeal is heard. For instance, when this bill becomes operative, if an agreement is reached this afternoon and an appeal is lodged by some person, that agreement will not become effective until after the appeal is heard; and it could be anything from twelve to eighteen months before the appeal is even listed, let alone ‘ heard. In the interim, the employees will not enjoy the benefits of conciliation. The appeals will be shelved, and placed in the background, and the employer will benefit under that procedure. In this case, a conciliator may be appointed by a commission or a commissioner, but an extraordinary position arises. Provision is made in the bill as follows : - . . a Concilia tor . . . shall, subject to the next succeeding sub-section, furnish a report in writing to the Commissioner as to the result of the endeavours to reach agreement, including the matters upon which agreement has, and upon which agreement has not, been reached.
The next sub-clause reads -
A Conciliator shall not furnish a report unless the parties to an industrial dispute consent and agree upon its terms.
One part of the bill provides that the conciliator must furnish a report, and another states that he must not furnish a report unless the parties agree. That is not all. The bill then provides -
A Conciliator made available under subsection (1.) of this section may, where - (a) the parties to the industrial dispute are unable to reach an agreement on a part of an industrial dispute; and (ft) the parties request him to determine that part of the industrial dispute and agree to abide by his decision. decide that part of the industrial dispute.
In other words, the next clause of the bill provides that the award will not, apply. It has to go before the commission. The conciliator must give a report, or he must not give a report, or he can adjudicate if necessary, and if both parties agree and the matter goes before the commission, the commission will certify whether the agreement is right or wrong. The commission will decide whether the determination is an agreement or an award.
It is all nonsense. A man is either a conciliator or he is not a conciliator. Under the provisions of this measure, the conciliator is to be tied down and frustrated. Every obstacle will be placed in his way to prevent him from acting as an arbitrator. After going to all the trouble that is required of him by various provisions of this bill, the conciliator will have to notify the commissioner who appointed him a conciliator, and then the commissioner, in turn, will have to certify that the agreement is not against the public interest. What is the point in all that backing and filling?
The Attorney-General (Senator Spicer) has said that most matters upon which agreement is not reached in conference are minor matters, but I know from personal experience that they are generally matters of major importance. As I have :ala, after the conciliator has gone to lots of trouble, he has to report to the commissioner, who then can send the matter to a commission, of which he will be a member, and the commission will certify whether the agreement is in the public interest or not.
I invite honorable senators to _ think back to the old system of conciliation. Under that system, if an agreement was reached, either with or without a conciliator in the chair, and the conciliator certified that an agreement had been reached, that agreement became the award or determination to apply to the industry concerned. Under that system, such an agreement could not be used as a precedent to establish a provision that was not in a. case before the Arbitration Court, but this bill will wipe out all such arrangements. The parties will not be allowed to reach an agreement unless it is certified by the commission, and even then there is still the right of appeal. Therefore, it will be impossible to get a decision of any importance in any dispute.
Supporters of the Government have referred to leaders of industrial organizations in the United States of America, and have said, “ What responsible men they are ! “ Honorable senators would have a blue fit if they knew some of the things that are being done in the United States by agreement. Have any honorable senators ever heard of an arbitration court in Australia considering a standard yearly wage? Such a proposal would not be considered in Australia, yet honorable senators have lauded the industrial organizations in the United States of America, and have said that they are led by responsible people, whereas the leaders in Australia are irresponsible.
I remember when the trade unions asked for morning tea. A howl went up throughout Australia from those who support this Government and the employers. They said the claim was fantastic, and that the workers would want afternoon tea next. The unionists were declared irresponsible because they asked for morning tea. Because they are still asking for some conditions which are not in the minds of those who arc against industrial organizations, the unionists are still described as irresponsible. Is it irresponsibility to ask for comparable wage justice? That is all that the unions are requesting. The two unions that were mentioned by the Attorney-General - the Waterside Workers Federation and the coal-miners’ union - are not receiving comparable wage justice. They are trying to get it through various tribunals that have been established to hear their claims, but they have never been able to get it. When they stop work they are said to be irresponsible.
I remember when we stopped work to get a 4S-hour week and then a 44-hour week. I fought that issue for two years, but could we who fought for those conditions be described as irresponsible simply because we wanted a better standard of living ? I remember when tradesmen received 6s. 6d. a day. We wanted 7s. a day, and because we could not get it and there were no industrial tribunals to arbitrate, we stopped work. We got the extra 6d. a day. Exactly the same thing is being done to-day. The people want wage justice, and they want a better standard of living. We all know that, in the near future, some adjustment of working conditions will be necessary because of the advent of automation, the use of electronics in the manufacture of commodities in many sections of. industry. 1 have no doubt that, when the workers bring forward claims concerning those changed conditions, they will be told that they are irresponsible, although they will merely be asking for fair standards, for a decent living wage and reasonable conditions.
The Commonwealth Arbitration Court, under’ the terms of this bill, should, be empowered to ensure that the workers receive those things, but that will not be the case. The Government proposes to establish another court. Senator Wright referred to the penalties that may be imposed under the legislation, but in relation to the provisions concerning penalties I am reminded of a spider ready to pounce on anybody who comes within range. That is what this new court will do. I have no doubt that, on application to it, it will issue injunctions, and if the injunctions are not obeyed it will then issue orders. If the orders are not obeyed, those concerned will be brought before the court for contempt. Does thiGovernment think that that will result in the settlement of disputes? If it doe.” so, then it has another think coming. Not only will that course be unjust, but it also will be a departure from the old procedures and detrimental to the establishment of wage justice;.
Honorable senators opposite claim that there is nothing wrong with the bill, but I contend that it will bring about a distinct change for the worse in methods of conciliation and arbitration. As the law stands at present, if you breach a section of the act you may be brought before the court for contempt; but in no case fan you be brought before the court for failing to obey an order or award of the court made by it in the course of its duty under, the act. The Government proposes to do away with that method and to give the court power to enforce the carrying nut of its orders and awards. If they are not observed, the penal clauses of the lpsrisl.ati.OTt will apply, so that those concerned will be brought before the court for- contempt. That is- a wrong principle which will not overcome any difficul ties at all. If I thought that, this legislation had a possible chance of resulting, in the settlement of industrial, dispute?-. 1 should be prepared to give: it a trial, but I know that it will not have thai result. I am positive that nothing can be attained by penalizing people, particularly people who have been brought up t” believe that they may sell their labour in free markets. After all, what has > working man to sell but his labour power ?
This Government is- proposing to place restrictions on the only commodity that the worker has to sell and’ to prevent him from selling- it on the open market, although it permits everybody else in the community to sell their commodities on the open market. It will have nothing to do with prices control or restricting the profits of those who buy the labour of the people. Instead, it will give those people even greater concessions. We can see behind this bill the influence of the shipping companies, which have- received more from this Government than they have from all the previous governments of this country. No restriction has been placed on them, but it is a different matter when it comes to the workers.
Senator Wright spoke of getting the basic wage on an even keel, and. the need for co-operation between the worker and his employer. I quite agree with him. There should be no stultification of theability to reach agreements’. The Attorney-General (Senator Spicer), in his second-reading speech, stated that the Government wanted to stabilize, if possible, the wages of the’ workers. Senator Wright, with his legal experience, knows that it is not possible to do that throughout the whole of Australia, but he believes that the bill may take a step in that direction, and for that purpose certain provisions- have been included. It is proposed to appoint conciliators, commissioners, a chief commissioner, a’ president, and a vice-president. Those offices are all to be co-related, so that the conciliators will not be able to get out of step. After the 1951 amendments of the legislation, the conciliators, with one ortwo exceptions, would not go ahead with their job, because they could, see in the offing a rebuff if they did something which was outside the ordinary run,.
The, court, itself assumed the- right to. fix margins, and it laid! down, a. formula which did not make provision, for many people who, in. the early stages, had been endeavouring to have their margins assessed but who had been unable to get near the court?. The result was that instead, of there- being a. straight line of margins, at the rate, of two. and a half times the 1037 rates, we. had the variousauthorities, jumping all! over the place. The conciliation commissioners- were powerless; to, do anything, about the position, because the court itself had set’ the1 precedent.. Because, that, precedent had been: established, the conciliation commissioners were not gamer to: depart from it.. That. situation is being, perpetuated by this legislation, but of. course the future position will, be worse because the bill provides that a conciliation commissioner may do such, and such, and may not do something else, and that if, he does this, he may. not do that. In, my view, this legislation, is an awful1 calamity. Its provisions are preposterous,, and so is” the idea behind, them.
I thought at first that the” Government was trying, to improve arbitration methods in. Australia, but having seen this? hill, I am rather disgusted-, because I feel., that it will not’ meet the. position at all! I remind honorable senators of a peculiar chain of circumstances! The Government introduced] this* bill in theHouse of Representatives*, and although it was’ at very big document, containing, a’ great, number: of clauses, after it had been discussed there: for two or three days’ the Government brought along, a sheaf of amendments nearly as large- as the- billitself.. It seems- that, the Government does’ not know what it wants, although it is> obvious that, it wants to tie down the working man. as much as possible. Because of the advent, of. this- sheaf of amendments, ordinary members of the’ Parliament who. are not members of. the legal, fraternity need to get up pretty early in the morning to follow the moves that are being. made in the progress of thebill’.
Generally speaking, the AttorneyGeneral, has. not’ explained the various clauses of the bill. Perhaps^ that will be dona at the committee stage; provided.. of. course, that the Government, does”- not apply the “ gag. “. I. am particularly concerned, with the’ position of the. conciliators. I believe’ in conciliation. I have, on. occasions, appeared, before, both Federal and- State, arbitration, courts in connexion with applications- by. trade unions. But wherever provision existed for conciliation, every effort was. made- to settle industrial problems by that, means. Conciliation has saved industry a considerable amount of money and, by obviating’ industrial disputes, it has also served the public interest. As I have said before in this chamber, somebody ought to tell’ the officers of the Arbitration Court that their job is to settle disputes, not to create them. I think it is utterly wrong foi” those officers to tell men who have gone on strike that they must return to their work before the arbitration machinery can be invoked. It is all very well for honorable senators opposite to blame the workers for disturbance in industry. Men, do not strike in. the absence of a compelling reason for doing so. The president and the secretary of a trade union are either elected to those positions By the organization as a whole, or are appointed’ by the executive. T think that it is dreadful for a man who occupies one of those positions to be fined £5t)0, or sentenced, to imprisonment for six months for obeying the. people who employ him. Action of that kind’ does not settle disputes. All that it does is to deplete the financial’ resources of the. trade unions.
In other days, the expense1 of postage and court fees connected, with, am award would not exceed £20 or £30, but to-day the expense is- enormous; The minimum cost of obtaining, an. award, from either a State or. Federal court, is now about £500. In. the1 federal, sphere,,, because of the method adopted, in relation to- conciliation,, long delays occur, which res lit in the workers- losing, thousands: of pounds a year. I have m1 mind a certain union which has already expended £6^000 on an appeal which, is not yet settled. I understand that this appeal relates- only to rates of pay- for overtime. It is not possible now to obtain, an agreement from a government authority. The unions^ have to apply to the courts for awards. I think that the award-making procedure should be expedited. If agreement is obtained up to a point before the natter goes to the court, the final adjudication by the court should not take very long. It should not be necessary for a trade union to spend a large sum of money on fees in order to obtain a paltry award from a court.
Certain honorable senators on the Government side have stated that the Opposition is against sanctions; we call them penalties. My experience in these matters extends over many years, and, in the federal sphere, dates from a time before the Arbitration Court was constituted. In those days, recourse was had to the ordinary courts for breach of contract. Later on, when determinations and awards replaced agreements, prosecutions were launched in the ordinary courts for breaches, and that practice still applies. On occasions, I have defended employees who have been prosecuted for breaches of awards. Labour has never opposed that practice. It is, however, against the imposition of sanctions from the top in relation to contempt because, in most instances, although the court understands the nature of the contempt, others do not. I am inclined to think that the provision in relation to sanctions should be deleted from the bill. Unless the Government deletes it, the provision will almost certainly be challenged by the trade union movement, as occurred in the Boilermakers case.
Up to a point, I agree with what Senator Wright has said about sanctions. By this bill, the judicial power formerly exercised by the Commonwealth Court of Conciliation and Arbitration will be wielded by the Industrial Court. Of course, if the provision in relation to sanctions becomes law and is challenged before the High Court, we on this side of the chamber will be termed irresponsible. One is always deemed irresponsible if he challenges something that the Government has done or is doing, but is regarded as responsible if he agrees with everything that the Government does. At the committee stage, I shall raise a number of matters in relation to t.hrvarious clauses. I conclude by saying that I strongly support Senator McKenna’s amendment.
– There is no subject on which I have such an open mind as the one now before the Senate. I have followed the history of arbitration merely as an ordinary member of the community, and I have had some little experience as a member of the executive of an association of employees and a trade union. Neither experience has made me certain of anything, except that we are enmeshed in a system which has grown up on too narrow a basis and which has, T think, been determined largely by accident. The narrow basis is, of course, the provision of the Constitution which allows of limited Commonwealth control over industrial relations, but which necessitates that there shall be a dispute before the court can intervene. In many instances, of course, it is only a nominal dispute. All attempts to alter that provision of the Constitution have failed. I agree with those honorable senators on both sides who have suggested that other changes, »*‘ich do not demand an alteration of the Constitution. should be considered.
I think that Senator O’Flaherty’s references to the American system were most unhappy. I do not think that any supporter of the Government advocates for a moment the scrapping of our arbitration system and the adoption of the American system. The Minister’s secondreading speech did not attack trade unions on political, or any other grounds. That is simply introduced as a reason for considering the way in which industrial disputes affect the political situation on all matters of policy. There is no praise or blame for it at all.
I approve in general of the bill, but I should not give it ray wholehearted blessing until we have gone through it in committee and considered each clause. I listened with great respect to criticism from both sides of the Senate and to criticism outside the Senate by the press and the public, and, in particular, I listened to the very good speech of the Leader of the Opposition (Senator McKenna) in which he pointed out a number of things which may or may not be wrong. I have certainly not made up my mind on them yet. What I approve of is the attempt to separate conciliation and arbitration and the court which imposes a sanction. I believe we need more conciliation. If Senator O’flaherty, who spoke prior to me, is the type of person who constantly appears in the Arbitration Court I do not wonder that there was little scope for conciliation. The whole of his speech was a concentration of bitterness. He had the impudence to accuse my colleague, Senator Wright, of exhibiting spleen. Senator Wright made one of the most moderate and conciliatory speeches I have heard him make.
Conciliation should precede arbitration or anything else and I fully approve of the clause in the bill which provides that conciliation should be separate both from arbitration and from the court which imposes sanctions. The reason for that which was given in the second-reading speech of the Attorney-General is excellent. In the nature of things if people are bargaining they will try to get the best bargain they can. It is merely human nature for a man to try to get the most he can out of the conciliator; and if he knows that he is only a conciliator and has no power to make an award, conciliation is more likely to be effective. I had some experience of working conditions in the early part of this century. I happen to be the son of a coachbuilder who worked with his hands and worked hours just as long as the men who worked with him. He drew at that time no more out of the business than any man employed by the firm. Relations between employer and employee were perfect and there was no class distinction or any other distinction. The only difference was that my father hno to pay off the firm’s overdraft whereas the men who received wages had no responsibility in that respect. It has t>. be considered that in business there ar times of profit and times of loss. At that time the business happened to be recovering from the great depression of the ‘nineties. The firm passed through a period when year after year it suffered losses. But that fact did not embitter the relations between employer and employee nor did it worsen the conditions under which the men worked
Arbitration is simply embedded in our system and we cannot get rid of it. Therefore, for any one to advocate that we should consider adopting the American system, or even the British system, which has limited arbitration, is absurd. If the trade unions and employers will voluntarily come to agreement, they may in that way almost eliminate the necessity for a court. In the trade union in which I happened to be an office-bearer for many years we always strove for and secured consent awards. I do not thinkany important matter ever went before the Arbitration Court. The court existed simply as something in the background which strengthened - or we thought it did - our bargaining power. I sometimes wonder whether it did strengthen it. Finally, the separation of the court from the commission is necessary in view of recent legislation and also on the merits of the proposal itself.
I agree with both Senator Wright and the Leader of the Opposition that the terms “ public interest “ is vague, and that it may be unjust to compel a court to be the sole guardian of the public interest. However, there is a case in which the court may be compelled to determine the consumer interest, which probably would be a better term, because, after all, the interest of the employer and the employee is unquestionably parr of the public interest. But it is possible under our system of protection to have another type of public interest. I am not referring merely to tariff protection, but to our system of interference in many ways with the free bargaining capacity of either side. It may be possible for people in a particular industry, or in a part of an industry to arrive at an agreement which may be against the interest? of the consumer. If there were such a “thing as perfectly free competition that could not happen. As Senator Wright said, the only thing that would happen would be that those who arrived at that decision would prejudice their own business. Under the whole system under which we operate, not the arbitration system alone, but the system of protection and of giving bounties to primary and secondary industries, thus doing away with a. free system, there must be some body to determine the consumer interest.
Is it :no’t plain that we are .all organized on the lines of producers? There is nothing wrong with that; we cannot help it, but I think we often go against our own interests as consumers by acting in combinations of .producers. There is no question whatever that under the old system of supply and demand, and a perfect system of free enterprise, there were ‘many evils, ‘but the evil of sudden price rises was not one of them.
There was a period in the history of Great Britain during the nineteenth century when prices were actually going down and wages were rising. Statistics show that that was happening during the whole of the latter part of the nineteenth century until the close of the nineties. The general level of wages was rising, the general income was rising, but prices, including interest, were going down. That has been altered, largely because of the interference of tariffs and other things. We cannot get back to the ideal position, but I think we should recognize that we will not get any kind of equilibrium so long as producers arn putting pressure on prices.
– Does the honorable senator think that trusts and combines have any influence on them?
– Of course, they have. It is rather .peculiar that when some one is trying to examine a problem a little intelligently by looking at various aspects of it, there .are people who think they can settle the whole problem by a sudden sneer about one particular thing. Trusts and combines must be handled in many ways, but the panacea of socialism, of creating only one trust and one combine, ls mot the answer. I do not think there is any panacea, but there should be encouragement of free competition wherever it can be * encouraged. I should like (to inform Senator Courtice that I am steadily pursuing a study of trusts and combines and means to combat ‘them, and if I can ever offer help to the honorable senator, I shall be pleased to do so. I also assure him that his outmoded jibe has no merit whatever’ -to a person who thinks. Because a thing is out of fashion, it does not follow that it is wrong. Many things have gone out of fash-ion which were quite right, and to support a thing simply because there is a great flood .of feeling behind it at the moment, ,or because it is temporarily in fashion, is the action of a person who refuses to think, or, possibly, cannot think.
I shall refer to one other matter, and, in doing so, I shall answer another curious contribution made by Senator O’flaherty. He said that because the Government has introduced amendments, that is something it should be ashamed of. I wish there were amendments to every bill that come.0 before the Parliament. I do not accept the view that a ‘bill, is something to ‘bc concocted by a department, and ‘brought in for ‘honorable senators to vote for it or against it without thought or (reflection. I believe that amendments should be moved mot only by the Opposition land private members, but also by the Government itself. We have two houses ito review legislation, .and no legislation is perfect. If flaws are .revealed after .a bill has been introduced, it is .the duty of the Minister in charge of the bill to accept amendments. Honorable senators know that this amendment did not -result from criticism from this side of the House only, or from a vacillating policy. Some amendments ‘have come from suggestions made by responsible trade union leaders. Another silly sneer which 1 must answer, and which is not true, is that honorable senators on this side of the House constantly refer to all the trade union leaders as irresponsible. If. before making such a wild assertion. Senator O’Flaherty had reflected on thispeeches from this side of the House during this second-reading debate, !he would have realized that the Government regards the general range of trade union leaders as responsible. Those who are regarded as irresponsible are placed in only one or two camps.
I deplore the bitterness displayed by the last speaker. I am approaching thin matter with as open a mind as possible. In committee honorable senators will btable to consider, in detail, any flaws in the bill, but at this stage the time of fin.Senate should not be wasted by makins.’ wild, general reflections and assumption? that are applicable only to an age which closed 40 years ago.
Senator BENN (Queensland) [9.33 J. - It appears to me that the Australian public .live in a maze of confusing industrial acts. There is the Commonwealth Conciliation and Arbitration Act, and in each State an industrial act of some kind or other is in operation. The only State which, perhaps, could be excepted is Victoria, which still makes use of the old wages board system, which Napoleon Bonaparte introduced in his day.
– I thought the Australian Labour party beat Napoleon to the gun.
– I suggest that Senator Maher should remain quiet while I am speaking, for very good reasons. I do not wish to be nasty, but I could mention some things which a government, of which he was a member some years ago, did - things which were not creditable to any Australian.
– The honorable senator might as well “ come clean “.
– I will unfold the story little by little later.
Senator Kendall interjecting,
– Senator Kendall has sat all day like a prize potted aspidistra, and now he is beginning to interject. 1 suggest that he should remain quiet. Senator McCallum said that the Australian arbitration system has actually stemmed from a placitum in the Commonwealth Constitution which is there by accident, The honorable senator never spoke a truer word, because it was the second proposal considered by the constitutional conventions which were held prior to Australia’s becoming .a Commonwealth. The first proposal in respect to arbitration was introduced for discussion by a gentleman named Kingston from South Australia, in 1S91. He was a man of very wide vision and great wisdom. It is easy now, in retrospect, to see what has happened since 1891. particularly in the field of arbitration, but honorable senators must bear in mind, in considering the Kingston proposal, that at that time there was no such thing in Aus tralia as industrial arbitration. This is the proposal which he submitted to the constitutional convention in 1S91 -
The establishment nf courts of conciliation and arbitration having jurisdiction throughout the Commonwealth for the settlement of industrial disputes.
Many times I have thought how unfortunate it has been for Australia that that proposal was not adopted. If it had been, arbitration . courts with a Commonwealth jurisdiction would have been functioning throughout Australia instead of the conglomeration of jurisdictions which now exists. Turning to the constitutional provision relating to arbitration, I point out that section 51 of the Commonwealth of Australia Constitution, placitum xxx>reads -
Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.
That placitum was introduced by Higgins, who was quoted with approval by Senator Wright this afternoon. His introduction of that proposal, and iti acceptance, constituted the very worst service that could have been -rendered to Australia. History tells us it was supported by Isaacs, Deakin and Higgins. Once it was incorporated in the Constitution, the Commonwealth Parliament was free to establish arbitration courts and similar tribunals to deal with the settlement of industrial disputes “beyond the limits of any one State “. It is rather interesting, this evening, 53 years after the first arbitration bill was brought down in the Commonwealth Parliament, to read some of the statements which were made during the debate. Some of the speeches that have been made during this debate resemble some of those made on that occasion. They have the same tenor, and perhaps the same tempo, of that faroff day. In 1903 Deakin, in his speech on the bill, had this to say -
Under the new system - and here is the revolution - a different aim will operate. Might is not -to make right. But, as soon as it can be discerned and determined, right is to make might.
Then he dealt with social justice. Not much was said about that to-day in the second-reading speech of the AttorneyGeneral (Senator Spicer), but although Deakin was in a political camp opposed to mine, he was a great Australian, and these were his remarks on the subject on that occasion -
The attainment in some measure, and possibly in a rude fashion, of social justice is as “absolutely essential a.3 material prosperity. Permanent prosperity oan only be based upon institutions which are cemented to social justice. Under the influence of a sense of injustice, of inequality, unfairness and helplessness, the working population of the world cannot be expected to submit to their lot. There must be held out to them the prospect of betterment and advancement for the individual, the family and the class, as well as for the nation as u whole. We do not desire to see a pyramid like that of Egypt reared on the abject misery, ignorance and helplessness of the masses. We feel that the ideals of our culture and many of the objects of our government imply as a fundamental condition the well-being of the masses of the people.
An industrial court had to be established as a result of the passing of the legislation of 1903, and in this connexion it is pertinent to remind honorable senators that Senator Wright was speaking about judgments which have been delivered recently by the President of the Commonwealth Arbitration Court and by previous judges, on various matters, for the purpose of making a comparison between the work of lay commissioners and judges. His argument amounted to this - that the work which could be done by the lay commissioners could not be as responsible as that carried out by the judges. The honorable senator held out Mr. Justice Higgins as being a great authority on industrial matters, and therefore I submit that it is interesting to note just what Mr. Justice Higgins had to say about judges dealing with industrial matters. He said -
Although I have the utmost respect for my confreres “in the legal profession, I am afraid that their minds, if they are in full work, are so occupied with their daily business that they pay less attention to economics and industrial subjects than do the members of any other class in the community, and their sympathies naturally tend towards what I may call the bourgeois idea. I think the reason why lawyers are chosen in England is that the best arbitrations have been conducted by men who are prominent in public life.
Then Mr. Justice Higgins named several gentlemen. I again remind the Senate that that was the opinion of Mr. Justice Higgins, who was mentioned by Senator
Wright, about judges acting in the industrial sphere. Returning to my previous remarks, after the court was established there was opposition to the very first legislation in the same way that we have opposition to-day towards the latest increase of the basic wage. During last week bankers, manufacturers and others, who are always very solicitous about our economy when the workers have been granted an increase, stated publicly in the press that the basic wage should not have been increased, that the workers did not want it and that it would endanger the industries of this country by inflating our industrial costs. People of the same type said the same thing 53 years ago when the very first industrial measure was brought into the Parliament. Whom do honorable senators think were in the vanguard of the opposition to that, measure in those days? They were the steamship owners of Australia. The shipowners are still the leaders in all reactionary movements in Australia. That measure was also opposed by certain gentlemen in this Parliament, and the main argument in opposition to it was that it was dangerous and experimental. Members of the present Opposition in this chamber know why they thought it was dangerous and experimental in those days. It was dangerous because they knew that the legislation would fix a legal rate of wages. In those days the shipowners could go to any port in Australia and from the compounds surrounding the labour bureau they could pick all the labour they required. They could get seamen, deckhands and all other classes of labour, and then for the first time they were threatened with having to pay a fixed wage. It is no wonder that t,hey_ fought the measure and stated publicly that it was dangerous and experimental. Of course it was - to them.
However, we are now able to look back and see that it was an experiment which was well worth while. Another thing that reactionary interests have always maintained whenever anything worth while has been granted to any section of the workers is that such an action would paralyse industry. We read the same sort of thing to-day in the press because of the last increase of the basic wage. Wo also hear that investment will be prevented or lessened. That was said in those days, and it is said again now. Moreover, it is again maintained that i he increase of the basic wage will increase our costs. All the same sort of thing went on 50 years ago, but many people in the community have not changed their ideas since then notwithstanding the fact that the workers have gained fairly considerable benefits over the years as the result of industrial arbitration, or, may I say, despite industrial arbitration.
In a discussion of this sort there are two things in the history of arbitration that cannot pass without being mentioned, because they have been of such importance and have been referred to so frequently over the years. The first is the first basic wage fixed by Mr. Justice Higgins, in 1907. At that time he was required to fix, under what was called not an arbitration act but a new protection scheme, fair and reasonable wages at a standard that would be proper to the normal needs of the average employee regarded as a human being in a civilized community. He fixed the rate of wages at 7s. a day, and his judgment in that case is known as the Harvester judgment. That was a very important decision, particularly at that period, and it is still the basis of all basic wage decisions that are made by Commonwealth courts. Indeed, it still has an influence on all basic wage decisions made by industrial tribunals in the various States of the Commonwealth. The judgment has never been departed from in any substantial way. Honorable senators may consider the wages of the average Australian to-day, allow for his margin of skill and his needs, and relate the wage to living costs, and the ultimate figure at which they will arrive is the 7s. a day awarded under the Harvester judgment. Mr. Justice Higgins must have been a very conscientious judge, because at that time he said -
One cannot conceive of industrial peace unless the employee has secured to him wages sufficient for the essentials of human existence.
To that statement we still say, “Hear, hear!”.
It is no good hoping that we shall have industrial peace simply by bringing in ti mass of legislation such as we now have before us, unless we secure to the worker, the man who has to sell his labour for wages, enough to live upon and sufficient for the essentials of human existence. What are the essentials of human existence? I am speaking purely from a working class viewpoint. They are very easily defined, because we on this side of the chamber know that when we analyse them we are dealing with the whole philosophy of the Labour movement. The needs of the workers are those things for which we have been fighting over the years, the essentials of human existence. The first essential is a home for a man, his wife and family. It is a home built in such a way that it will provide adequate shelter in the winter months and be cool enough to live in during the summer months. It will be hygienically serviced in all ways, and not merely a house in some slum in a suburb of Sydney or any other city. It should be a home of dignity, something which the children will be proud to claim as their home. That is the very basis of our living standards. I take the view that if the family has no home it is not much use talking about living standards. Food is another essential to human existence. The wages should first of all ensure to a worker a home. Next, they should enable him to acquire sufficient wholesome food for himself and his family. He should be able to acquire sufficient of the type of food dietitians prescribe for growing children. I should say that the third essential is clothing suitable for all climates. Fourth, and perhaps most important of all, comes education. Education should be both adequate and free from the primary school right through to the university. The worker must also have health safeguards not only for himself in industry but also for his family by way of such things as free hospital treatment and so on. Then, he should have economic security. He is entitled to that as a member of our society. He should not have to carry through life the fear of unemployment, something that he did experience years ago. Any society that cannot give these essentials to its members is not worth while. Arbitration has yielded these things to us over the years.
Another important factor is the C series index. That was introduced in 1924 by William Morris Hughes, who promised, in his policy speech, delivered at Bendigo in 1920, that as soon as his party was returned to power he would introduce a statistical, system under, which wages would be kept as close as possible to the cost of living. That C series index operated from 1924 until 1953 when it was callously suspended by this Government. All through those years, the workers accepted the C series index as part of the wages structure of the Commonwealth. So much did they accept it, that when it meant a reduction of the basic wage to £3 14s. in the year 1931r32, they were satisfied. On the other hand, after having been responsible for increased, costs to the extent that the basic wage rose to something like £10 3s., the present Government conveniently suspended- the operation, of that index. L know honorable senators opposite will say they had no part in it, but here I emphasize that my great objection to industrial courts1 to-day is that they are subject to political influence.. This- cannot be denied because’ we all remember the clamour from theGovernment side for the suspension of the operation of the C series index,, and we all remember the Halleluja chorus that went up from the Government side immediately it was suspended. Since then we have not heard one word from honorable, senators opposite urging that it. should be restored- to operation.
I have stated already that we have a Commonwealth arbitration court that has the right to fix- a federal basic wage. We also have State tribunals in every State, with the exception of Victoria, vested with power to declare basic wages for the respective States. The result of all this is that there are several basic wages now operating throughout Australia. There is no uniformity whatsoever. For instance, in Queensland there are tradesmen doing certain classes of work who are being paid either a higher or lower rate of wages than other men performing the same class of work in other States. Again, although this Government has refused, to recognize the C series index since 1953, several State courts have continued to acknowledge it and put it into operation. Because of this, the federal basic wage in Brisbaneis £11 8s. a week, while the State basic wage in that city is £11 13s., or 5s-. more than the federal rate. In Melbourne, thifederal basic wage is £12 5s., while the State basic wage declared by the Wages Board, which has granted increment, over the years under, the C series index, is 12 16si, or lis. a week more, than the federal rate. In Sydney, where the federal, basic wage’ is £12 13s., the .State basic wage is £12 16a., or 3s.. a week higher than that of the Commonwealth. In Adelaide, the- federal basic wage is- £12 ls. and the State basic wage- £11 lis. There, the federal rate is 10s. higher than the State rate, but we all know the political colour of the Government of South Australia. In Perth, the federal basic wage is £12 6s., while the State rate is £12 17s., or lis. more than the federal wage. In Hobart, the federal basic wage is £12 12s., while the State rate is £13’8;si. or 16s. a week more.
Is it correct that there should be. these variations between the State rates anil that of the Commonwealth? I suggest that.it is not, but this legislation. will not correct that position. Contrasting wage? lead to irritation. So long as- we have a condition of affairs under .which* the shop assistant compares, his wages with those of the clerk and under which the boilermaker compares his earnings with those of the clerk, so long as we have a system under which, one class. of tradesman complains that, another class is getting more-, we shall have industrial unrest. These contrasts in wage rates cause irritation and lead to industrial unrest,, and this irritation with its consequent unrest, cannot be avoided under the present system. The Government may be acting in good faith in bringing, down this- legislation. It may believe^ that the bill will give us a measure of industrial peace for a number of years, but. I can assure honorable senators opposite that they will be disappointed, that this bill will bring about no more industrial peace than we have ever had in the past.
– What is the honorable senator’s solution?
– My solution is clear. I support Labour’s- policy. We say there should be only one wage-fixing authority, that it should be the Commonwealth authority. We say that all the industrial powers now held by the States- should’ be transferred to the Commonwealth Government. It was- stated to-day that six referendums have been held on that very matter already in Australia. Those referendums- have been sponsored principally by the Australian Labour party. If. we are. to have a. country worth living, in, and if we are to assure the working’ masses of Australia that they will have at least, the essentials of decent human existence, we must have one arbitration system, operating, ceaselessly, and that must be the Commonwealth arbitration system.
I can give honorable senators illustrations of overlapping in industry. There was an engineering works in a. certain part of Australia and the management had to pay workers who were required to sink a hole in the ground certain wages under the Commonwealth award. Workers who were required to sink a similar hole an inch away outside the line of’ the engineering works received higher wages because they were covered by a State award. The metal trades award’ operated in the foundry and the’ builders- trade award was observed’ outside it. There was one class of ‘work and two rates- of pay. Those difficulties must be avoided: They are so absurd that they should not be- tolerated.
The industrial powers of the States have grown remarkably,’. They have left the Commonwealth Court of Conciliation and Arbitration standing in respect of matters with which they have to deal. The bill that is under’ consideration defines industrial matters and the powers of the court. Notwithstanding its limited powers under the Constitution, the court is still further circumscribed by the definition of industrial matters. The definition that is given in a certain State shows how broad is the power of the court which operates there. The definition states -
It: is. any matter, whether industrial or not, which, in the opinion, of the Court, has been, is or may be a cause or a contributory cause to a strike or’ lock-out.
An analysis of that provision shows that it covers anything under the sun and, indeed, even the sun itself becomes an industrial matter. The court in that State has- power to deal with anything at all. It. has fixed trading hours for shops, working hours and overtime conditions-.
I have offered honorable senators a solution: of the problem, and now I shall pass to another matter. There will be troubles in the future, in. the industrial field* just as there have been troubles in the past, despite the titivating that the Commonwealth Court of Conciliation and. Arbitration is- to receive as a result of this mass- of amendments: Since its introduction, arbitration in Australia has passed through two phases. The first was during a. period of. unemployment which* at certain, periods^ was” acute: The workers engaged in industry, and those- who were governed by awards, virtually had to submit to arbitration, or become unemployed. In some States-, wehad mass unemployment. During, the depths of the depression, a- quarter of Australia’s population was- permanently unemployed. It acted as a. whip upon the workers,, forcing them to accept everything prescribed for them by the industrial courts.. The alternative open to them was permanent unemployment.
After the beginning of World War II.. there was: a shortage of labour. Some referred to it as full employment, and that period has continued, more or less, up to the present. Although this Government has been in office since 1949, it has lacked the imagination to realize the facts of the situation, and to be fully conscious- of requirements. There has been employment for all. in. the community, and employees have been able to leave one job and get another at a higher rate of pay. The Government has not seen- fit to introduce any measures to meet that situation. It is in the back of my mind now that the Government expected a considerable volume, of unemployment in the future.
– No.
– The honorable senator has said “ No “, and I hope that he if correct. I will do everything I can to prevent any wave of unemploymentsweeping Australia, but, I have my doubts. I feel that there will be some unemployment. The Government will once again use unemployment as a force against the working population of Australia. Provision is made in the bill for conciliators who will go out, interview people and adjust complaints which arise in every industry. They will then go back to the commissioners and inform them what they have done. They have no power to arbitrate. Everybody knows how industrial conciliation operates to-day. The employers are bound by decisions of their associations. They are not free to negotiate with a conciliator or a union. A union can. approach an employer in any industry and suggest the basis for an agreement, and the employer almost invariably will reply that he cannot negotiate. He will say, “ I have consulted my association, and I have been told not to reach an agreement”. That is how attempts at conciliation will be received in the future. A decision is made by the employers before the conciliators take action. All this nonsense in the bill about conciliation and the appointment of conciliators is moonshine.
A matter which has become contentious in the industrial life of Australia is the demarcation of work. Where there are groups of men numbering 100 or 200 and working alongside each other in various trades and callings, quarrels will arise about who is to do certain work. There may be contention between builders labourers, metal tradesmen, boilermakers, fitters or turners. What are known as the blue book and the white book come into operation in such cases. I was very familiar with that matter once, and knew every demarcation in the books. Those issues will arise more frequently as Australia becomes more industrialized. We also have automation at our front door. Australia will never experience a high degree of automation because of the nature of its industries.
– We have it here now.
– Not to any degree compared with automation in other countries.
– We have automatic telephone exchanges.
– They have operated for many years; there is nothing new about them. The honorable senator might as well say that we have had automation ever since man used a piece of wood to lever one 3tone from another. That was probably the start of automation in the stone age. Here is a modern example: In Great Britain, there is a multiple head automatic grinder weighing 150 tons. It has a control system containing 15 miles of wire and 60,000 electrical connections. It is capable of handling the hulls of military tanks, and operates automatically. The depth to which it must grind is fixed electronically, and the machine cannot go wrong. There is automation for you. It will become an industrial problem later in Australia, but not immediately. Incidentally, there are electronic computers which are capable of doing in 10 minutes calculations which would take a mathematician six months to do. We shall need a government with imagination to put into operation legislation to deal with the problems of automation when they arise.
I referred a while ago to the operation of the C series index, and I listened patiently to-day to honorable senators opposite discussing this matter of public interest. What is public interest? Where does it commence and where does it end? Does it only come into operation when the workers of Australia are to get an additional 5s. or 10s. a week? Is it only to be considered when their working hours are to be limited to 40 a week? I say that if the public interest is to be involved in those matters and deliberated upon by learned judges, it should also be brought into account when potatoes are sold on the market, as they were in Brisbane last Friday, at £103 10s. a ton.
– You do not have to buy them.
– 1 am glad that that statement has been made, because it indicates the attitude of some honorable senators on the Government side of the chamber - “ You do not have to eat - you do not have to buy”. There is a shortage of potatoes, but apparently no question of public interest arises there. But what of the profits that are being made ? What of the inflation? Does not inflation come into the picture when potatoes reach £103 10s. a ton? What of the families of the workers ?
– They can eat rice.
– No doubt they may eat rice and other foods, but do honorable senators opposite say that that matter is not related at all to the public interest? We might say to the supporters of the Government, if the wages of the workers were increased by £1 a week, “ But of course you need not employ them “. The worker is not in a position to withhold his labour. He is compelled to sell his labour in order to live.
– This is rabblerousing stuff.
– I know that it is rabble-rousing stuff, but I am giving the facts. Recently. the Commonwealth Arbitration Court gave a decision concerning the basic wage, about which I want to comment very briefly. The court decided that it should increase the basic wage by 10s. a week on grounds related to productivity. The increase had no relation whatever to the means test. The court thereby discarded an important factor that always had been taken into account by judges making decisions concerning the basic wage. Honorable senators opposite have frequently said that we must produce more in this country. But who controls production in Australia? Do the working masses control it? What have they to do with production? They do not own the means of production, so that they cannot increase production but only do the work that is set for them to do. Production must be increased by those who have the factories and the fields.
– Has the honorable senator ever heard of the darg?
– Let me tell the honorable senator that the darg is cen.turies old, and that his father and his forefathers applied it. There is no question about the darg operating in respect of production. It, does so because “f the rates of income tax. No one should imagine that, the darg operates only in the big factories, or that it is only the workers who apply it. Business people apply dargs, too.
– That darg will not bark.
– I have here a cutting which refers to the actions of a Queensland government in the depression years, when it required families to live ou £1 12s. a week. We often hear supporters of the Government these days speaking about communism in connexion with workers and their activities, but that Queensland government to which I have referred made single men walk from 20 to 30 miles a week to receive a ration ticket valued at 6s. They were required to live on that sum for a whole week.
– That was Jim Scullin’s Government, was it?
– It was the Moore Government of Queensland, of which Senator Maher was a member.
– I thought that the honorable senator intended to keep that matter to himself.
Sena tor BENN. - I had intended to do so, but then Senator Maher began to interject and say that the people do not have to buy potatoes, and so on.
– Our system in those days was so liberal that all the young men from New South Wales came to Queensland to share in it.
– The Liberal government of Queensland put up notices at Coolangatta and other places advising the people of New South Wales not to enter Queensland because the government could not provide properly for its own unemployed. There were thousands of unemployed in Queensland at that time. In August and September, 1931, there were approximately 6,000 unemployed in Brisbane, and they received relief work which gave them an average wage of £1 6s. 2d. a week. When the Arbitration Court refused to reduce the basic wage, the Government gazetted out of all awards employees in the Public Service and the railways. It is all very well for honorable senator” opposite to say that this is a good bill. I am pointing out what a Liberal- A ustral ian Country party Government did in Queensland in 1931. under the stress of a depression.
– Scullin cut the pensions.
– That is all very well. I am telling the honorable senator what a government of which he was a member, did. At that time, 7,081 government employees were sacked and S,731 were put on short time. The Government repealed the 44-hour week, the statutory eigh.t-k.our day, and the Basic Wage Act. Rates payable for overtime and statutory holidays were reduced, and preference to unionists was abolished.
It is easy for people to come here and say that they believe in arbitration. I think that a majority of the people believe in the principle of arbitration, but they want arbitration which will work, arbitration which will provide a fair measure of conciliation and which will provide, also, for the appointment of wise judges who are capable of arbitrating when conciliation fails. I say, in conclusion, that the bill before the Senate will not whittle down one iota, the industrial unrest which now exists in Australia.
. I t was with very great pleasure, matched by equally great surprise, that I heard Senator Benn say, for the first time since I have been in this place, something with which I felt I could entirely agree. The surprise which I felt on that occasion was completely cancelled out, however, and I felt no surprise at all when, later in his speech, he made statements which were utterly and completely untrue, and which he knew to be utterly and completely untrue. I refer to his statement that this Government cancelled the cost of living adjustments of the basic wage in 1953. Everybody knows that the cost of living adjustments were suspended by the Commonwealth Arbitration Court, not by this Government. The honorable senator knows that, too, and I am surprised that, in this place, he should make statements of that kind which he knows to be absolutely untrue. However, the part of his speech with which I could agree, concerning a problem that this country, and this Parliament, must face sooner or later, was the exposition, which Senator Wright had given earlier, that we cannot reach a proper solution of this matter unless we tackle the problem involved in having different Federal and
State wages boards and arbitration courts. As to the bill itself, I believe that it is an adequate measure to attain a limited objective, and probably it is only possible to obtain a limited objective within the cramped confines of the Constitution as it is, and in view of a certain mental stagnation in considering the problems of Australia generally. As 1 have said, I believe that, within the accepted limits, the bill will do what it sets out to do. It is good that there should be an Industrial Court. It is good that there should be, as Senator McKenna described them, conciliators simpliter. purely and simply conciliators without arbitration functions. It is good that there should be commissioners experienced in particular industries dealing with those industries, having a mixture of conciliatory and arbitral powers. It is good. I feel - indeed it is necessary - that there should be judges, and that there shall continue to be judges in a commission of this kind. It is essential that the major subject reserved by an arbitration court as such, or judges as such, should continue to be so reserved, and it is even more essential that there should be some sanction which can be used against those who either do not keep agreements, or who set out to bring into disputes and contempt the arbitration authority of the country generally. This is a sanction which is not usually used and, indeed, I think it is probably never used in an ordinary industrial dispute. It is perfectly certain that it is necessary to have sanctions of this kind in the case, for instance, of such things as the rolling strikes, which we remember the Communist leaders of the watersiders brought on some years ago, not for industrial purposes, but to damage the Australian economy. All these things will attain the limited objectives which they set nut to attain, but they will not solve the major problem with which this country is faced at the present time, and that problem must be solved if we are ever to make a real attempt to attack inflation, and t” take our place as a competitive nation among the trading nations of the world The problem which Australia has to face is the necessity to have one arbitral authority, independent both of political pressure and of electoral bargaining at the polls, but not sufficiently powerful to overthrow the attempts of a. government to control the economy of a country, or to undermine measures which a government might take to that end. Those are difficult problems, but not ones which cannot be solved, provided we agree to tackle the constitutional power, and provided we can agree to make a different mental approach from the one which we have all tended to make over the years;
We have now an independent arbitral authority. It is not subject to political pressure, in spite of what Senator Benn has said. Every member of this chamber knows that it is not subject to political pressure. It is not, and I hope it never will be, subject to electoral bargaining at the polls, when one party could say. “ We will raise your wages by fi a week “ and another party could say, “ We will raise your wages by £2 a week, if you elect us to power “. We had an object lesson on the danger of that’ sort of thing only two elections ago when, with mad disregard for the economy of this country, an electoral policy consisting solely of social services bribes was put before Australia by Dr. Evatt. That shows the sort of thing that can happen if wages and hours are made the subject of political decision.
We have met these two problems, but we have not met the other problem in that group, the setting up of one central arbitral authority. I urge the newly appointed Constitution committee to take into its consideration, as one of the most urgent problems that we have to face, a proposition that there should be one central, binding, wage-fixing and hour-fixing authority throughout the whole, of the continent of Australia. After Senator Ben n’B contribution in that regard, which I fully endorse, and Senator Wright’s contribution, there is no- need, for me to give reasons, because the facts and figures have already been laid’ before the Senate to-night.
But that would still leave us with a situation which, overnight,, could completely disrupt the carefully thought out policy of a- government. I think that that danger, too,, could be overcome, given such a central arbitral authority.. The danger- I envisage, of. overthrowing a government’s plans, comes about through, as it- were, the accepted theory that such a court must make a blanket award covering all industries, and all sections of industries, irrespective of what is happening inside those industries. It seems to me that if we could, as it were, wipe our minds clean, and start as Mr. Justice Higgins did, with the circumstances on which he based the Harvester award -
– That slate was too clean.
– It worked well for a time. It got out of date, and a new one had to be evolved. We could have an approach whereby, instead of such a blanket award, and instead of having a- C series index, or some sort of indeterminate man and a. family, au award is given for an industry after consideration of what is happening in thai industry; If, in any particular industry, producton and profits are raised, and the industry is prosperous and developing, the people engaged in it, both employers and employees, should share in the prosperity, as Australia would share in it, because production has risen. That, could be done easily, without overthrowing the economic measures of a government, if the system were applied selectively through commissioners- who know the industry, and it is obvious that industries will be dealt with by such commissioners.
– What about essential Services ?
– ls there any reason why a formula of that kind should not be applied to the essential services as well as- to an- industry? If, for instance, in an- essential service, a given- number of men ran a given number of trams a given number of trips, then, if fewer men ran more trams, or the same number of trams on more trips, then the- public, who owned the trams, would get the benefit of a better service, and the employees would be entitled to- increased wages because of the improved service they had given, the country. I do not say that this bill has dotted every “ i “ and crossed every “ t “, but. I think an. approach of this kind offers some promise.
Debate interrupted;
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The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid). - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
Question resolved in the negative.
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Debate resumed.
– I was saying that I do not consider this bill as something that has every “ i “ dotted and every “ t “ crossed ; but it is an approach that offers some promise whereas the existing approach offers no promise whatever and takes from governments the powers they must have in order to fix wages and hours of work. Sooner or later both those points must be tackled, but this bill will not, cannot, and does not tackle them. As I said at the beginning of my speech, within the limits laid down, it appears to be an adequate approach to a limited objective.
– We have been informed that the chief objects of this bill are -
Those objectives will not be achieved by the bill. The enforcement of the penal clauses in particular will make the position worse instead of better. This Government or any other government has no power in the absolute sense so far as the workers are concerned ; it has a power in the relative sense provided it acts in conformity with the reasonable and just claims of the workers. The economy of this country operates on a principle similar to that of most other countries, namely, maximum production and profit for the owners of capital and minimum consumption for the non-owners. That is the origin of what is known as the basic or minimum wage. It is the least wage on which workers are supposed to be able to exist. There, we have a fundamental contradiction and conflict of interest, and there is nothing in this bill which attempts in any way to deal with the position. The various provisions of the bill will aggravate matters rather than improve them. That contention cannot be denied as all the evidence goes to prove that what I have said is correct and has been operating ever since the institution known as private property came into existence. From that time until now the worker’s share of the wealth produced has amounted to the cost of his subsistence or the least on which he is expected to live.
I remind honorable senators that in the affairs of mankind, as in physics, action and reaction are equals as well as opposites. To the extent the Government enforces the provisions of this bill it will have a position, as I have said before, similar to that which existed in the past, and possibly worse. No really intelligent approach has been made by the Government to deal with the fundamental position. During his secondreading speech, the Attorney-General (Senator Spicer), mentioned the need for goodwill between employer and employee. Goodwill is desired, but it is impossible under the conditions visualized in this bill. The Government will find that industrial disputes and strikes will occur in the future just as they have occurred in the past.
At present we have a 40-hour week. That means that workers do not work as many hours as they did before we had the 40-hour week. But what is the real position ? They have to work longer and faster in order to earn their real wages than they did before the 40-hour week came into force. In order to make up for the deficiency in their wages because of the high cost of commodities, workers have to work overtime and their wives have to go to work too. That is a position, that has arisen in Australia, England and other countries. The Manchester Guardian last year referred to latch-key children, who go to school with a latchkey tied round’ their necks so that after school they can use the key to open the door and get into their homes while their mothers are still at work. Something like 3,000,000 married women have been forced to go to work in England in order to ‘ try to balance the family budget. That position has developed in Australia also and this bill will bring greater pressure to bear on workers to force them to acquiesce in that state of affairs. However, provisions of this sort are not going to succeed in this country any more than they have succeeded in any other country, although workers have to work longer and faster for their commodity wage.
As I have said on previous occasions, until 1911 I worked as a plumber and with the money I received for working 48 hours a week I could buy a better suit of clothes than I have now. If I were now receiving £17 or £20 a week I would have to work at least 60 hours in order to buy the same suit of clothes as I bought in 1911; and what applies to clothes applies equally to food, housing and other essentials. That is true notwithstanding the fact that to-day we have up-to-date equipment which can do in a day what it would have taken at least two days to do in 1911. In virtually all branches of industry to-day workers are working longer and faster for the commodity wage as distinct from the money wage. That is a position that is either not understood, or is being deliberately ignored by the Government. I cannot conceive of the Government being so ignorant as not to be able to understand, but I can conceive of its ignoring that state of affairs. The commodity wage - apart from the nominal wage - was never lower than it is to-da.y, and that is why child endowment and other mitigating social measures have been introduced.
Senator Benn referred to automation. Automation will have exactly the same effect as improved machinery has had to date. To the extent that man-power can be replaced by improved machinery, manpower becomes a diminishing factor or quantity in production, and, consequently, the worker’s wage is reduced, because litis paid only for the time he works. Hit income consists of the basic wage, plus a margin for skill, and the faster he works and the more he produces, the less he receives in proportion to the wealth he produces. Although that factor i? not generally understood, its effect is. The average worker may not be able to pinpoint the cause of the difficulties under which he works and lives, but he cannot ignore their effects.
The only persons who have benefited from arbitration since 1904 are the employers who can operate on a low margin of profit and a high turnover. These people can compete successfully against the small businessmen - who arc practically a dying race - and comply with the provisions of an award. Some members of the legal profession also have done remarkably well out of arbitration, and this bill contains a provision that will allow them to continue to do so. J invite honorable senators to realize that thousands of workers, out of their earnings, may be paying as much as 100 guineas a day to a legal practitioner to argue before an arbitration court how much they should receive in order to live and maintain their wives and families. It is a monstrous state of affairs, bucertain members of the legal profession are deliberately capitalizing the position in their own interests rather than in those of the working man.
– The honorable senator is exaggerating, is he not?
– I can understand the honorable senator suggesting that I am exaggerating, but I could not expect Government senators to admit the truth about anything in connexion with arbitration or employer and employee relationships. The kind of remark just made by the honorable senator has been made ever since arbitration came into being, and even before 1904. Employers then vehemently protested that claims for increased wages by the workers were unreasonable, and that their businesses could not bear the added cost which would be involved. Great statesmen in the Parliament echoed and re-echoed those sentiments of the businessmen, and the press blazoned them .in lange, heavy headlines, liven to-day it is said that the .claims of the workers are exorbitant.
The first time that 1 appeared before the State Arbitration Court in Western Australia I established a technique which ,:ould well have been followed by other workers’ advocates. I first apologized to the court for the modesty of the claims which the workers were making, and then I presented a schedule of the claims to which the employers had agreed, and to which they had signed their names. 1. addressed myself to the presiding judge and announced that those were the claims to which the employers had agreed. The employers’ advocate, a gentleman named Mr. Alcock, said that the agreement had been obtained “ by persons like Cameron at the point of a gun, and the court should not sanction it”. The judge, who was a very gentlemanly person - there are some gentlemanly judges - adjusted his eye-glass and said, “ Mr. Alcock, you should not ‘have signed that agreement unless you intended to honour Lt. The award of the court will be in conformity with the agreement.” If advocates adopted a similar procedure they would probably ‘have more success, but under existing conditions it is not done.
Unfortunately, many workers’ advocates rely on what Senator Wright described as “the impartiality of the judiciary”. In opposition to his own contention, the honorable senator made mention of the partiality of some judges, so obviously he does not wholly believe in the impartiality of the judiciary. With all respects, I say that members of the legal profession do not understand the position of the workers as it is understood by men and women who have graduated from industry. Certainly the lawyers understand the law. Nobody would dispute that, although they never seem to be able to agree among themselves.
But what is the law? All law is based on precedent, and it is more or less codified or stratified custom. Consequently, most legal advocates who go to court think backwards, to the past - to precedent - and prefer to do that rather than attempt to break new ground. They refer to things that were done in the past, and they bring volumes of .authorities to suppout their contentions. Eventually, they convince the court that what was done in the past worked well, and therefore it should continue to work well in the future. They forget that what might have worked well in .the past will not work well in the future because the world and conditions of production are changing, as also are methods .of dealing with social matters. I mention these points to illustrate the procedure adopted by legal practitioners appearing in arbitration courts.
The Attorney-General (Senator Spicer) made a comparison between organized labour in the United Kingdom and the United States of America and that of Australia, and said that the tendency was for industrial issues in Australia to become political issues. Unquestionably that is so, and why should it, not be? Politics may be defined as “ the science of management “, and all management is political. Persons such as myself, who nave been on this terra firma as long as I have, will remember that before arbitration courts were established the appeal was made by members of Parliament and others to the workers to “ send your men to Parliament to argue your ease “. That is why we are here, arguing now. We are here because we were invited to come here, and yet the Attorney-Genral said, by implication, that an industrial matter should not be made a political issue. That statement will give honorable senators some idea of the approach of the legal mind to a matter of this sort, because it is a mind that does not deal in realities.
The Attorney-General would have us believe that the behaviour of organized labour in the United Kingdom and in the United States of America is much more desirable than the behaviour of organized labour in Australia. If Australia were as thickly populated as America and some European countries, the position of organized labour ‘here would be much the same as it is in those countries. The workers have an advantage in Australia, in that our population is sma’ll compared with the size of our country. The older countries of the world when faced with a similar situation, endeavoured to rectify it by immigration, and I ha ve a shrewd idea that that is what is intended now in Australia. Immigrants were brought into America in large numbers. Among them were thousands, perhaps millions, of the natives of Africa who were forcibly brought to America as slaves. They were brought in to reduce the cost of labour, or the cost of subsistence of the workers to the lowest possible level.
Honorable senators should remember that there were 11 slave States in America. In 1947, the then American Secretary of State Mr. Harold Ickes, said that the only difference between the serf of medieval England and the serf of 1947 America was that the English serf wore an iron collar with his owner’s name engraved on it, but the American serf wore no collar. At that time he said that in five years when cotton-picking machinery was in use to a far greater degree, there would be 5,000,000 workers living in a state of semi-starvation, and that is the position in America. I believe that a similar condition prevails in
Canada. The difference is only one of degree. Following the introduction of automation in those countries there are millions out of work, and recently an American banker reported that this year, although he could not say when or where, the employment position would be desperate. Therefore, honorable senators will perceive that the Attorney-General is not approaching the position in Australia with the idea of making it better; his idea is, by implication, to reduce the workers of Australia to the same level as those in other countries. I ask for leave to continue my remarks at a later stage.
Leave granted; debate adjourned.
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Motion (by Senator O’sullivan) agreed to -
That the Senate, at its rising, adjourn to tomorrow at 2.30 p.m.
Senate adjourned at 10.54 p.m.
Cite as: Australia, Senate, Debates, 12 June 1956, viewed 22 October 2017, <http://historichansard.net/senate/1956/19560612_senate_22_s8/>.