12th Parliament · 1st Session
ThePresident (Senator the Hon. W. Kingsmill) took the chair at 11 a.m., and read prayers.
asked the Minister representing the Minister for Trade and’ Customs, upon notice -
Can the Minister inform the Senate when the reports of the Tariff Board on Tariff Items 335, 338(a), 339 and 340(a), (b), (c) will be presented to Parliament?
– It cannot be said at present when these reports can be presented. Some of them have not yet been received from the Tariff Board.
asked the Minister representing the Prime Minister, upon notice -
– I have seen press reports attributing certain actions and statements to the Consul for Jugo-Slavia in Sydney, but have no other knowledge of the matter. In reply to question No. 4, the practice is, substantially, as stated by the honorable senator, and inquiry is being made as to the actual facts of thecase.
Bill read a third time.
In committee (Consideration resumed from 25th July, vide page 4711) :
Clause 45 -
Section sixty of the principal act is amended -
by omitting from paragraph (h) of sub-section (1.) the word “or” (last occurring); and
by omitting from that subsection paragraphs (i), (j), (k) and (l).
Section proposed to be amended - 60. (1.) If it appears to the court on the application of any organization or person interested or of the Registrar -
Upon which Senator Sir George Pearce had moved by way of amendment -
That the letters and word j, k. andl be left out.
.- When progress was reported on Friday last I understood that the right honorable the Leader of the Opposition (Senator Pearce) had accepted a suggestion made by the Leader of the Senate (Senator Daly) that paragraphl should he omitted from his amendment because of the provision existing in paragraph a of sub-section1. After careful study of the amendment, I think it is necessary that the Leader of the Opposition should adhere to his original intention. Paragraphl enacts that the registration of an organization may be cancelled if in the opinion of the court, it has not altered its rules as required by sub-section 4 of section 55, and it appears to me that the explanation given by the Leader of the Senate does not hold good. I hope the Leader of the Opposition will stand by his original amendment.
– I again appeal to honorable senators to accept the provisions in the bill, so as to bring about a better feeling between employers and employees. Paragraphs i, j,k, andl were inserted in the act at the time when Parliament considered such action was necessary in the interests of arbitration as opposed to conciliation, which, in the view of this Government, is the better policy. If these provisions are retained, they will continue to be a source of irritation. Paragraphs a to h give the court authority to cancel the registration of an organization if that course should be considered necessary. The discretionary power contained in those paragraphs is sufficiently wide to meet all circumstances that are likely to arise, so the retention of the paragraphs i tol is not necessary. Their deletion will be consistent with the idea which the Government has in view, namely, that the parties should consider their industrial troubles outside the strict legal atmosphere so often associated with arbitration court proceedings. The Government is relying upon the doctrine of conmon sense. I hope, therefore, that honorable senators opposite will not use their strength simply to maintain in the act provisions which no one can suggest gives the registrar more power than is conferred upon him in paragraph a of the section referred to.
– There is trouble now in the shearing industry.
– Such things are sent to try us. I put it to the honorable senator, however, that if the organization in question were guilty of any offence which would be covered by paragraphs i tol, the remaining provisions would entirely meet the situation should drastic action be deemed necessary.
Senator Sir GEORGE PEARCE (Western Australia) [11.14]. - The clause under discussion seeks to amend in certain important respects section 60, under which there is provision for the cancellation of the registration of an organization. Paragraph a of the section indicates the general power. Paragraph i, one of those which the Government seeks to delete, enacts that registration may be cancelled if it appears to the court -
That the proper authority of an organization or branch of an organization has neglected to exercise its powers over its members or branches doing anything in the nature of a lockout or strike, or committing any nonobservance or breach of any order or award. As the penalties for strikes and lockouts have been repealed, it seems logical not to retain paragraph i. Paragraphj reads -
If it appears to the court on the application of any organization or person interested or of the Registrar…
that an organization or branch of an organization has made or given any domestic rule or order or direction contrary to the terms ofan order or award, or required or instructing or advising the members, or any of them, to refuse to offer or accept employment in accordance with an order or award, or that its members or a substantial number Of them observe any formal understanding contrary to. any law or award the court may, if in its discretion it thinks fit, order the registration of the organization to be cancelled . . .
That paragraph is not in any way associated with strikes and lockouts or conciliation. It relates to an organization of employers or employees which has obtained an award from the court and then proceeds to make domestic rules contrary to the award. When this provision was last under consideration I referred to Judge Beeby’s finding in the Waterside Workers case, in which he quoted numerous instances where that federation had imposed domestic rules, varying in each port, but contrary to the award. If an organization is to frame’ and enforce domestic rules contrary to an award under which it is operating, it is not entitled to the benefits of conciliation and arbitration. In these circumstances, I do not feel inclined to withdraw the amendment for the retention of that paragraph. Paragraph k reads -
If it appears to the court, on the application of any organization or person interested or of the Registrar,
that the members or a substantial number of the members of an organization or branch have repeatedly or systematically committed offences against this act or failed to comply with an order or award the court may . . . order the registration of the organization to be cancelled . . .
That paragraph does not relate to penalties imposed in connexion with strikes or lockouts, but to an organization which obtains an award and then persists in systematically defying it. Is an organization entitled to retain its registration in such circumstances? It cannot have it both ways. Should such an organization retain its registration and consequently the benefits of the award when it systematically incites its members to break the award? I cannot see that there is any justification for deleting that paragraph from the act. I now come to paragraphl, which reads -
If it appears to the court, on the application of any organization or person interested or of the Registrar
that the organization or branch has not altered its rules as required by sub-section (4) of section 55 of this act. the court may . . . order the registration of the organization to be cancelled . . .
When this provision was last under consideration I was at first impressed with the arguments adduced by the Minister (Senator Daly), but since then I have had time to give the matter further consideration. Sub-clause 4 of clause 55, which is referred to in paragraphl reads -
Every organization registered at the commencement of this sub-section shall, within the prescribed time, alter its rules so far as is necessary to comply with the conditions set out in Schedule B or as prescribed.
In Schedule B, a number of general principles for organizations, to which the rules must conform, are laid down. If an organization does not comply with sub-clause 4 of clause 55, which is being retained, what will be the position ? Unless we retain paragraphl, sub-clause 4 of clause 55 will be ineffective, and an organization can wilfully disregard the law. For these reasons, I do not feel disposed to withdraw the amendment which I have moved.
SenatorDALY (South AustraliaVicePresident of the Executive Council) [11.20]. - If an organization after complying with certain prescribed conditions is registered, and it is subsequently discovered that one of the conditions precedent to registration has not been observed. the registrar may, under paragraph b cancel the registration of the organization on the grounds that it has been registered erroneously. Obviously, if an organization has not complied with the conditions of registration the organization has been registered erroneously. Does the Leader of the Opposition suggest that the powers conferred upon the Registrar under paragraph b are not sufficiently wide to enable the cancellation of registration? Paragraph j relates to an organization or branch of an organization which has made or given any domestic rule or order contrary to the terms of an order or award of the court. If paragraph is read in conjunction with paragraph a, which provides that the court may cancel the registration of an organization if it thinks that for “ any reason “ the registration of the organization ought to be cancelled, it will be seen that the former is unnecessary. The powers of the Registrar are not in any way limited, because there is in paragraph a an expressed direction of the legislature. By retaining these paragraphs we shall be establishing a chaotic state of affairs. These paragraphs constitute unsatisfactory draftsmanship, and are no credit to the Parliament which enacted them. Paragraph k reads -
If it appears to the court on the application of any organization or person interested or of the Registrar -
That the members, or a substantial number of the members of an organization or branch have repeatedly or systematically committed offences against this act, or failed to comply with an order or award
The court may, in its discretion, if it thinks fit, order the registration of the organization to be cancelled, and thereupon it shall be cancelled accordingly.
Paragraph g also covers the case of a registered organization which has wilfully neglected to obey an order of the court. I suppose that as our numbers are only 7 as against 29 in opposition, it is almost useless for me to press for the deletion of these paragraphs.
– The 29 may be right.
– And they may be wrong. It seems a pity that these paragraphs cannot be considered by honorable senators opposite apart from the viewpoint that, because they have been enacted, they should be retained. They really do not mean anything, beyond being a condemnation of the trade union movement. In view of the discretionary powers given to the Registrar in the specific circumstances I have mentioned, they are quite unnecessary. They do not give the Registrar any greater powers, and are a bad advertisement for the trade union movement, and one which it does not deserve.
– We have to study this clause from the view point expressed by the Leader of the Opposition (Senator Pearce). It is not a question, as the Minister said, of unsatisfactory draftsmanship, although I frankly admit that the drafting could have been improved. To some extent the Minister stands condemned for not having improved the wording of these provisions. I do not think that paragraphs k andl should be deleted. Paragraph k, which was quoted by the Leader of the Opposition, relates to the action of members or of a substantial number of members of an organization who have repeatedly or systematically committed offences against this act.
– Would the honorable senator favour the cancellation of the registration of a company because of the action of its directors?
– These organizations can be made corporate bodies with power to hold property, but the legislature has not been blind to that fact, as there is a safeguarding provision regarding the property of an organization. Under paragraph k, certain powers are conferred upon the Registrar, but the legislature decided that more specific powers should be provided as set out in paragraph We have an illustration of the necessity for this provision at the present juncture. An award has been made in a certain industry, and a substantial number of the members of the organization concerned are disregarding the direction of the controlling body by defying an award of the court. Surely the proper method to deal with such an organization is to deprive it of the benefits of arbitration by de-registration. If the executive of the organization is unable to discipline its members, or a substantial number of its members are breaking the award, the organization should be de-registered. I cannot see why any exception can reasonably be taken to these paragraphs. The Minister could have strengthened his argument if he had quoted paragraph c, which, if slightly amended, could be made more effective. Paragraph c reads -
If it appears to the court on the application of any organization or person interested or of the Registrar.
that the rules of a registered organization do not comply withthe prescribed conditions or have not bona fide been observed or are contrary to the terms of an order or award the court may, if in its discretion it thinks fit, order the registration of the organization to be cancelled, and thereupon it shall be cancelled accordingly.
– Paragraphl relates to an organization about to be registered.
– That paragraph specifically relates to a refusal to comply with the statutory provisions in clause 55. As paragraph c is to be retained I cannot see why paragraphk andl should not also be retained. Paragraph seems to meet the hiatus which might occur in such a case as I have cited. The only organizations which have anything to fear from such a provision are those which are refractory and transgress the code of the arbitration law. Organizations which seek the benefits of arbitration legislation should be prepared to abide by the awards of the court. The Vice-President of the Executive Council (Senator Daly) appears to be unduly sensitive in this matter. I shall vote for the amendment by the Leader of the Opposition. ‘
SenatorRAE (New South Wales) [11.32]. - An unanswerable case has been made out for the rejection of the amendment. Seeing that in paragraph a there is power for the Registrar to cancel the registration of an organization for any purpose, no wider power is possible.I can understand that some honorable senators opposite are determined to retain in our legislation the obnoxious provisions which were placed there when the enemies of Labour were in power. When dealing with arbitration matters the late Government tried in every way to place insulting and repressive legislation on the statute-book. It did so in the most offensive manner possible. I have nothing but contempt for honorable senators who, at the beginning of this new Parliament, stated, as did the Leader of the Opposition (Senator Pearce), that they recognized that the electors had given the Labour party amandate to amend the arbitration laws according to Labour ideals, and now demand that’ the miserable repressive legislation of the Mussolini type should be retained. Senator McLachlan said that only refractory organizations need fear the retention of these provisions. I tell him that before long we shall deal with some of the reactionary and refractory politicians, and shall wipe out the whole of the obnoxious provisions which enable a limited governing class to impose its rotten ideas of legislation on a people allegedly free. We, on this side, are not greatly concerned about the particular provisions which honorable senators opposite seek to retain. I tell them to use their numbers as they will, for they will soon bite the dust for having opposed the will of the people. They will soon find that they will have to occupy a different position in the future.
The CHAIRMAN (Senator Plain).I remind the honorable senator that the committee is dealing with a proposal to omit certain paragraphs.
– I was dealing with the reason why honorable senators opposite seek to retain these rotten provisions.
– On a point of order. I ask whether the honorable senator is in order in describing as” rotten “ legistion passed by this Parliament.
– The honorable senator is entitled to express his views freely and vigorously so long as he keeps within the Standing Orders. The words to which exception has been taken are not parliamentary.
– The people of this country with no uncertain voice condemned the degrading legislation introduced by the late Government. It may not be in order, Mr. Chairman, to use the word “ degrading “ in this connexion ; but it requires strong language to describe the obnoxious legislation that was forced through this Parliament by the Bruce-Page Government. The Labour party was given a mandate to repeal that legislation, which I cannot help saying was degrading to the alleged freedom of the people of this country.
– Has the honorable senator a mandate to ignore the Arbitration Court ?
– The question of ignoring the Arbitration Court does not arise, seeing that paragraph a distinctly provides that the Registrar may de-register an organization for any reasons whatever. I defy any one who understands, the rudiments of the English language to find a more embracive term than “ for any reasons.” The only object of the Opposition in proposing to retain these provisions is to irritate and goad trade unionists into action which will lead to the de-registration of their organizations. If I were an active member of a trade union I should not care what honorable senators opposite proposed to do under these specific provisions. Why should any citizen, in his private capacity, not be free to advise his fellows whether or not a certain class of employment is desirable or otherwise? Why should a man be penalized for telling a fellow worker that it is inadvisable for him to seek employment in a particular capacity ?
– Then the honorable senator is in favour of allowing men to incite others to strike?
– To refuse to offer for a certain class of employment, is not to engage in a strike. If it is, then all our arbitration laws make slaves of the workers. It is slavery to compel any man to accept employment against his will in a particular direction.
– Would the honorable senator apply the same principle with respect to a lockout?
– Yes; because I know that it is impossible to give effect to the legislation providing penalties for lockouts. An employer may reduce his staff, or close a section of his works - in fact do anything he likes except openly admit that he has locked out his employees - and go scot free. He is penalized only if he deliberately states that he is locking out his employees. I shall not attempt to deprive any employer of the liberty of doing what he can de in any case. The proposal to retain these paragraphs is actuated by a desire on the part of those who climbed to political eminence on the ladder of Labour and are now the most vehement opponents of anything that will benefit the workers, to injure those with whom they were at one time associated.
.- The speech of the honorable senator who has just resumed his seat is a splendid example of the conciliatory attitude of the Labour party! His speech was in striking contrast to the temperate remarks of his leader. Senator Rae would cause in this Senate the same trouble that he has caused outside.
– Does the honorable senator think that I will take anything and everything lying down and smiling?
– This country has on its statute-book certain laws, one of which provides that men may go to the Arbitration Court and obtain an award governing their employment. Lately, an award was given in connexion with the shearing industry. Senator Rae, according to the press, went out of his way to preside at a meeting in Sydney to encourage the men to defy that award. The meeting appointed a committee of the rank and file of the organization to appeal to the executive of the Australian Workers Union to defy the court’s award. Notwithstanding that there is legislation for the settlement of disputes by the court, the honorable senator urged the men to defy the laws of the country. In making his award the judge took economic conditions into account.
– I know all about a judge who receives £60 a week legislating for workers on the basic wage.
– The law of the land should be respected. The honorable- senator knows that arbitration legislation .was advocated by the Labour party many years ago with a view to the avoidance of strikes. Experience has shown that the arbitration system has prevented strikes only when the award has favoured the employees. Now, that the court is taking economic conditions into account, there is a defiance of the law. The executive of the Australian Workers Union has been sitting on a rail in connexion with the shearers’ dispute, as it did when there was trouble at South Johnstone some time ago. On that occasion industry was paralysed because the executive of the Australian Workers Union was afraid. to deal with about twenty men.
– The honorable senator does not know what he is talking about.
– I repeat that the executive of the union had not the courage” to deal with a few men, and that, because it sat on a rail, industry was paralysed.
– And now the honorable senator condemns me because I refuse to sit on a rail.
– Only about 20 men were concerned. In the present case an award has been promulgated for the pastoral industry, but the Australian Workers Union has been sitting on the fence for over a fortnight, doing nothing, allowing the extremists to incite the moderates to defy the order of the court.
– Does not the honorable senator see that it is the right thing under the law for an organization not to take action, and if it does nothing it cannot break the law.
– By refusing to act it is evading the spirit of the law. The unions know sufficient about the law to be able to avoid it. They make their dupes outside do the work.
– They are not very great dupes. They have as much brains as the honorable senator.
– I do not dispute that. If the Australian Workers Union had the moral courage to face the existing industrial position in a fair-minded spirit, thinking only of the best interests of its members and of the community generally, it would issue definite instructions for the men to obey the award. It is acting immorally if it misleads union ists, as was done in the timber industry, and forces many families into a state of semi-starvation. Senator Rae knows as well as I do that there is no better paid industry in Australia than the shearing industry.
– I rise to a point of order. Is Senator Reid in order in discussing something that is not relevant to the clause under review?
The CHAIRMAN (Senator Plain).Senator Reid is quite in order in the remarks that he. has made.
– Although Senator Rae dealt exhaustively with paragraphs i to I of the principal act from an adjectival point of view, he has not advanced one sound reason to support the omission of those paragraphs from the act. He was not able to cite a single injustice that their retention would inflict on any unionist who obeys the law. I do not see how their application can in any way degrade or single out for special punishment anybody who keeps within the law. I admit that the Government is endeavouring to make the Conciliation and Arbitration Act as workable as possible, but I can see no reason why these paragraphs should be omitted from the principal act.
– Why does not the honorable senator move to insert the ten commandments into the act? Their application would not hurt anybody.
– If the honorable senator studied the spirit instead of the letter of those commandments, probably the iron that has entered into his soul might .become more malleable than it now is. I shall certainly support the amendment moved by the right honorable the Leader of the Opposition. It is not my desire to subject unionists to any form of pinpricking.
– Surely the honorable senator is not sincere?
– I warn the honorable senator that he must cease his interjections.
– While I agree with some of the opinions expressed by Senator Rae I consider that he should be more tolerant in his attitude, and that he should not endeavour to teach the people of Australia to disobey the law.
– I rise to a point of order. I have been called to order for making interjections. Am I to be subjected to a long sermon from Senator Reid without having the opportunity to reply?
– An honorable senator is entitled to be heard in silence. At the conclusion of Senator Reid’s speech it will be open to Senator Rae to reply to any statement made by him to which he takes exception. Senator Reid is quite in order.
– Honorable senators on this side listened quietly to Senator Rae when he was speaking. If we are to make progress in the administration of our arbitration awards, we must approach the problem in a more conciliatory spirit. It is not the letter, but the spirit of the law that should be exercised by both sides, particularly by the section represented by Senator Rae.
– I think that the honorable senator might well introduce the spirit of sweet reasonableness into his discourse.
– I ask the Leader of the Government in the Senate (Senator Daly) wherein I have been unreasonable since I began my speech. I have merely stated indisputable facts in a plain manner. I admit that throughout the debate Senator Daly’s attitude has been reasonable and conciliatory, and that the majority of us desire’ to approach the matter in that way. The extremists outside the movement cause all the trouble. Ninety per cent. of the unionists are in favour of obeying the law and arbitration awards. If the Australian Workers Union set a proper example to unionists, any trouble in the shearing industry would be avoided.
– Yes; if unionists consented to be robbed, lying down.
– How can the pastoral industry be robbing its employees at a time like this when’ it is not even paying its way?
– That is all rot.
– Order ! I ask the honorable senator to pay no heed to interjections. I shall deal with Senator Rae if he persists in interjecting.
– I shall disregard them from now on. The last was an important one bearing on the subject under debate. Unionists must recognize the economic position in whichthe shearing industry and the country generally now find themselves. It is best exemplified by the budget just presented by the Government. The retention of these paragraphs in the original act will serve as a safeguard against the machinations of Senator Rae and others who desire to incite unionists to defy the law. We must endeavour to inculcate in the people the desirablity of respecting and obeying the law.
SenatorDUNN (New South Wales) [11.54]. - Returning to the clause under discussion, and forgetting for the moment such extraneous issues as the Sermon on the Mount, the Ten Commandments, Mrs. Annie Besant, table rapping, and all that sort of thing, I remind honorable senators that Senator Pearce desires to have paragraphs j,k, andl, of section 60, retained in the principal act. Section 60 of the principal act begins -
If it appears to the court, on the application of any organization or person interested or of the Registrar -
That for any reasons the registration of an organization ought to be cancelled. the court may cancel it, while paragraph j provides that if it appears to the court -
That an organization or branch of an organization has made or given any domestic rule or order or direction contrary to the terms of an order or award, or requiring or instructing or advising the members, or any of them, to refuse to offer or accept employment in accordance with an order or award, or that its members or a substantial number of them observe any informal understanding contrary to any law or award. its registration may be cancelled. Paragraph c also provides that the same action may be taken if - the rules of a registered organization do not comply with the prescribed conditions or have not bona fide been observed or are contrary to the terms of an order or award.
Surely a and c give effect to what Senator Pearce desires, and make it unnecessary to retain paragraph j. It would appear, as was pointed out by Senator Daly, that indifferent draftsmanship was displayed when evolving the original measure. Paragraphs c and j afford a direct contradiction, one to the other; the former embodies everything that Senator Pearce desiresto retain in the latter. 1 put that to the Senate as a common sense deduction. Paragraph d reads -
That the rules of a registered organization or their administration do not provide reasonable facilities for the admission of new members or impose unreasonable conditions upon the continuance of their membership or are in any way tyrannical or oppressive.
What could be clearer than that? Even “ Blind Freddie “ could appreciate its effect. I have no desire that honorable senators opposite should be restricted when stating their opinions, but I do urge that we should get down to tin tacks and consider this proposal from a common sense point of view.
– I hope that the committee will not agree to the Government’s proposal to omit paragraphsj,k andl of subsection1 of section 60. . Some years ago, when a royal commission was inquiring into the working of the Navigation Act, it took a lot of evidence in Queensland and had concrete evidence submitted to it indicating how the law, as stated in paragraph a of sub-section 1 of section 60, can be avoided. Paragraph a provides that the court may order the registration of an organization to be cancelled if it appears that for any reason the registration ought to be cancelled. At the little port of Mourilyan, the waterside workers, although they were working under an award of the Arbitration Court, had a rule that they should not shift more than 15 tons of cargo in an hour. Evidence was given to the royal commission that on one occasion when a piece of machinery weighing more than 15 tons was raised from the hold in ten minutes, the waterside workers sat down and smoked their pipes for the balance of the hour. Again at Bowen we found that there was nothing in a national sense to prevent the tomato-growers from driving their wagons to tie ship’s side so that the tomatoes could be loaded direct to the ship, but it was not allowed. The tomatoes had to be loaded on to trucks at the end of the wharf, and the waterside workers pushed the trucks to the ship’s side. When objection was taken before the Arbitration Court to the existence of such local rules, the federal representatives of the organization could always declare that there was nothing in the rules to which objection could be taken, and that they could not control the rules of their branches. The court, while admitting that the branches were acting in an irregular manner and in defiance of its award, could only declare that it did not propose to punish the good men in Melbourne and Sydney who were observing the conditions laid down in the award of the court.
– Why did the court declare that it could not punish the men who were acting in an irregular manner?
– The court had no power to control the wild men of the woods who defied their own organizations. It was on that account that the law was amended and the organizations were directed to so amend their rules that these wild men could be disciplined, and others could get a fair deal. If this power is now removed from the act, the rule of the wild men of the woods will be restored. Honorable senators who represent Queensland know what a tremendous difference this amendment of the law has made to industrial operations. Senator Reid has definitely shown that the law, as it now exists, affects only the men who defy it. Surely Senator Daly does not hold a brief for those who defy the law.
– The honorable senator really emphasizes the point I was making when this matter was previously under discussion. I have tried to show honorable senators that the whole aim of these paragraphs which the Government now seeks to have omitted from section 60 are absolutely inconsistent with any known principle of British law. Assume that the North Queensland members of the Waterside Workers Federation commit a breach of the law. The federation itself embraces workers in every port in Australia, and the section gives the Registrar power to seek thg cancellation of the registration of the whole of the federation.
– Power to cancel a branch was not given until the late Government amended the law.
– But the section gives the Registrar the right to have the corporate entity of the Waterside Workers
Federation destroyed. If the federation cannot discipline a section of its members why should all the other members of the federation be penalized?
– If he cares to do so the Registrar may exclude the others.
– Leagues of nations may be established for the purpose of preventing war, but they cannot absolutely prevent it. Nor can organizations of workers absolutely prevent breaches of awards by sections. If honorable senators opposite carry the amendment, I hope that a consequential amendment will be made to sub-section 6 of section 60 to make it read -
Upon the cancellation of the registration of an organization the organization shall not cease to be an organization and a corporation under this act.
The Australian Workers Union is federation embracing unskilled workers in various callings. Its members probably work under 40 different awards which would go out of existence if this consequential amendment were not made, and men to whom Senator Reid referred - those who want to obey the law - would be penalized. The innocent would be punished with the guilty. I know of no other legislation that goes so far as the amendment made to the principal act some years ago, which punishes innocent people for what the legislature has deliberately set out as breaches of the law by others. On the cancellation of the registration of an organization, it becomes a voluntary association. Those who are acquainted with company law know what that means. The organization loses its corporate entity. Honorable senators would not suggest the deregistration of another corporate entity, such as an insurance company, because its agents have been found guilty of misrepresentation or have committed flagrant breaches of the law in that regard; then on what logical ground can they justify their proposal to destroy the corporate entity of a trade organization because of a breach of an award by some section of it? I can understand the majority suffering disadvantages because a minority has brought about a breach of contract, a condition precedent to the establishment of which contract being the requirement that the whole of the parties should abide by it. I can understand the argument that if some have broken away from the contract it should cease. But I cannot appreciate any justification for departing so far from the principles of British justice as to suggest that all the members of an organization should be penalized, as proposed by honorable senators opposite. If, however, they succeed in retaining paragraphs j k, andl, I trust that they will agree to a consequential amendment of section 60 in order to protect the property of organizations and maintain awards applying to those sections of the organizations which are not, directly or indirectly, concerned in the particular matter in dispute.
Senator Sir GEORGE PEARCE (Westr ern Australia) [12.11]. - If the arguments which Senator Daly has now advanced are the reasons which actuated the Government in proposing to alter the law by the removal of paragraphs j, k, andl from sub-section 1 of section 60, which relates to applications for cancellation of the registration of organizations, I submit, with all due respect, that the Government has acted under an entire misapprehension of the meaning of these paragraphs. They were inserted by the previous Government for a very good reason. Previously, the act dealt with organizations as a whole, and most of the federal organizations are federations with federal councils and federal rules; but they also have State branches and even sub-branches within the States. The rules of a federation certainly apply to the whole organization, and it was found that no cause of action would lie against the organization on the ground that its rules did not comply with the law, but that the rules of the branches, which they had power to make, could be drawn up in defiance of what was laid down in awards made by the Arbitration Court, and often in direct opposition to those awards.
– Why not punish the branch and not the organization?
– That is exactly what these provisions were intended to do. Two outstanding instances showed the need for them. They both occurred in connexion with maritime industries. The Seamen’s Union, and the Waterside Workers Federation, are both corporate unions with branches. Senators Reid and H. E. Elliott have told us that these branches have local rules in defiance of, and in opposition to, what is laid down in awards of the Arbitration Court. It is within the power of each federation to discipline its branches. It can expel a branch and declare that it has ceased to be a branch, if it does not conform with what is laid down by the federation itself.
– It is nonsense for the right honorable senator to say that an organization can expel a branch. A man is not a member of the branch; he is a member of the federation.
– The Fremantle waterside worker may be a member of the federation, but he is also a member of the Western Australian branch of the federation.
– Then the High Court is wrong in saying that he is a member of the federation.
Senator Sir GEORGE PEARCE.He is a member of the federation, but, in actual fact, according to the rules of the federation, he is a member of a branch. On many occasions, as Senator Barnes will be able to tell the Leader of the Senate, the Australian Workers Union has been obliged to discipline its branches. I remember also what happened when the Waterside Workers Federation approached the Arbitration Court a year or two ago. When attention was directed to the fact that the local rules of its branches were made in defiance of an award of the court, the court immediately required the federation to give an undertaking that it would make its branches conform to the law. Unless these provisions are retained, the executives of organizations such as the Australian Workers Union and the Waterside Workers Federation will be powerless. Local branches may adopt rules which will be in complete defiance of the awards of the court. These paragraphs were inserted designedly; they were intended to compel branches, as well as industrial federations, to conform to the law. If my amendment is carried, there will be no need to insert in sub-section 6 the safeguard suggested by the Leader of the Senate. Sub-section 1a reads - -
Where the ground of the application is ‘ a defect in the rules of the organization, the court may, if in its discretion it thinks fit, instead of ordering the registration of the organization . to be cancelled in the first instance direct the organization within a specified time to alter its rules so as to bring them into conformity with the requirements of the act; and if at the expiration of the time specified the rules have not been altered accordingly, the court may then order the registration of the organization to’ be can- . cancelled, and it shall be cancelled accordingly.
If a branch of an organization adopts rules which are in defiance of an award of the court, the court may give the executive a specified time, perhaps a fortnight or a month, within which to compel the branch in question to so alter its rules as to bring them into conformity with the order or award of the court. If at the expiration of that period the rules are not altered accordingly, the court may then proceed to cancel the registration of the union. No one can suggest that it is unjust to require any organization to conform to the law of the land.
– The .right honorable senator is arguing that if an industrial federation does not order a branch to alter its rules its registration should be cancelled.
Senator Sir GEORGE PEARCE.No, because it has power to expel a branch which disobeys its instructions.
– It has not.
Senator Sir GEORGE PEARCE.If the honorable senator will study the rules of the Waterside Workers Federation, he will find that that organization has full power to expel any branch that disobeys awards of the court.
– If an organization does expel a branch, it does not expel members of that branch from membership of the federation.
Senator Sir GEORGE PEARCE.By the act of expulsion, an organization such as the Australian Workers Union would declare that the branch ceased to exist. Under paragraph k, cancellation may be ordered if it appears to the court -
That the members or a substantial number of the members of an organization or branch have repeatedly or systematically committed offences against this act, or failed to comply with an order or award.
In such an event, the provisions of subsection1a would operate. In recent years, there have been numerous occasions when members of a particular organization have acted in defiance of awards of the court. In some instances, partial strikes have occurred. In every case, the court has declined to proceed with the making of an award until the branches or members concerned were disciplined. I well remember the case of the Waterside Workers Federation. The executive of that body had an application before the court in connexion with an industrial dispute, and when the representative of the employers pointed out that certain members of the federation were acting in defiance of an award of the court, the judge not only refrained from dealing with the application, but called upon the executive to discipline the members concerned, otherwise he would consider taking action against the executive itself. The rules of every union give to the executive power to discipline members, and the rules of every federation contain provisions empowering the federation to discipline its branches.
– I should not like to believe that the right honorable the Leader of the Opposition (Senator Pearce) is deliberately misleading the Senate ; but undoubtedly he did so when he endeavoured to persuade honorable senators that the provisions in paragraph j were covered by sub-section1a. He urged that if a branch of an organization had a domestic rule not in conformity with an award of the court, the federation to which it belonged could expel the branch if it failed to bring its domestic rules into line. He also argued that if an industrial federation, such as the waterside workers’ organization, took this action, the provisions in sub-section1a would operate. The honorable senator said, in effect, that a branch was a separate entity from a federation. In practice, this is substantially correct. I would, however, point out that sub-section1a provides that -
Where the ground of the application is a defect in the rules of the organization -
The rules of an organization are defined, not as the rules of a branch, but as the rules registered under this act - the court, may, if in its discretion it thinks fit, instead of ordering the registration of the organization to be cancelled in the first instance direct the organization within a specified time to alter its rules so as to bring them into conformity with the requirements of the act. …
Paragraphl, which is one of those which this bill seeks to repeal, provides for cancellation if an organization or branch does not alter its rules as required under sub-section 4 of section 55. This has nothing to do with the point raised by the right honorable the Leader of the Opposition (Senator Pearce). In the instances mentioned by him, if a branch organization commits a breach of the law, power is given to the federation to require the branch to alter its rules. If they are not altered the court may cancel the registration of the organization. For example, the Adelaide branch of the Australian Workers Union may be entirely opposed to a stoppage of work, ‘but if’ a substantial number of its members decide to disobey the law, not only is the position of the Adelaide branch in danger, but also that of the whole of its members and of the federation itself. This is an iniquitous provision which should never have been incorporated in a legislative code that bears the hall-mark of King George V.
– The Minister would prefer “ Rafferty “ rules.
– Certainly not. But I am entitled to expect that the movement which I represent shall be treated in exactly the same way as is any other movement in the British Empire. This industrial legislation was bad enough before these provisions were inserted by the previous administration. The provisions contained in paragraphs a to g, of sub-section 1, strain the system of British justice severely, but the remaining paragraphs which this clause repeals, were, I suggest, framed by persons with a poor conception of what British justice means. British law cannot be respected once the confidence of the people in it is destroyed. Certainly, this class of legislation is calculated to destroy that confidence.
– Under the company law a company is liable for the acts of its servant.
– Yes; if the servant is acting within the scope of his employment; but our legislation does’ not provide for the cancellation of the company’s entity for the act of its servant. In this respect, the position of a company does not differ from that of an individual. If, for example, I instruct my servant to do certain things, and if, within the scope of his employment, the servant causes damage, I am liable. But in the case of industrial organizations, liability is imposed upon the executive for even the unauthorized acts of its members. An organization may order its members to work, but if they refuse, the Registrar may move for the cancellation of registration.
– I am strongly in favour of retaining the provisions contained in paragraphs /, lc and I. We see, in the ^present position of the pastoral industry, the need for the provisions in paragraph Clause 2 states the objects of the act will now include the promotion of goodwill in industry by conciliation and arbitration. I have always had a high respect for the Australian Workers Union, which has been ably led for many years by the Assistant Minister (Senator Barnes) for whom I have a high personal regard. That organization has generally been well advised to obey awards of the court, and it has always stood on the side of arbitration. It should be remembered, however, that, hitherto, awards made by the court generally have been to the advantage cif the employees. The position to-day is different. After a thorough investigation of the conditions in the pastoral industry, Chief Judge Dethridge recently made an award which does not find favour with members of the Australian Workers Union, and Senator Barnes remains silent while many members of the organization in question are disobeying the very law which they helped to make.
– Had not the award three years to run?
– The honorable senator has had an opportunity. to express his views, and should allow me to do the same without interruption. What is the attitude of the Australian Workers Union to-day? It is silent. Most of the members of that organization are anxious to work under award rates, at which they can earn from £7 to £8 a week under reasonably pleasant conditions. For.tunately, a majority of the nien have sufficient sense to work at the rates awarded by the court; but a large number out west are on strike, and there are many others in Melbourne, Sydney, and elsewhere, awaiting some direction from the executive of the Australian Workers Union. It is the duty of those in control of that organization to tell its members that they must obey the laws of the country. I am aware that the Leader of the Government in the Senate (Senator Daly), and most of his supporters, believe in conciliation and arbitration; but one honorable senator occupying a seat on the front bench has been inciting members of the Australian Workers Union not to accept the award of the court, and consequently to disobey a law of the country.
– Can the honorable senator prove that?
– I do not think the honorable senator can deny it.
– I rise to a point of order. I submit that, in discussing this provision, which relates to the cancellation of the registration of an organization, the conduct of any particular honorable senator in connexion, with an industrial dispute cannot, by any stretch of imagination, bc connected with that subject. If this practice is to be permitted, it will naturally lead to an acrimonious debate, which we all wish to avoid. I submit that the honorable senator is quite in order in referring to the action of an organization, and in asking Parliament to grant the court more extensive disciplinary powers; but that he is not in order in referring to the action of an individual member of this committee, or of any organization, which cannot influence the members of that organization in the slightest degree.
The CHAIRMAN (Senator Plain).The honorable senator is not in order in referring to the actions of an individual senator, and I ask him not to continue that line of argument.
– I shall confine my remarks to the failure of the Australian Workers Union to direct its members to obey the award of the court. A great many of these men are defying the laws of the country, as did the timber-workers with disastrous results, not only to themselves, but to the poor, unfortunate women and children dependent upon them. It has been said that Chief Judge Dethridge was not justified in making the award. Senator Eae said that the industry was sufficiently prosperous to pay the high wages which the shearers have enjoyed for many years. It is about time we faced economic facts in this country. The average price of wool in Australia for the past twelve months has been approximately 10¼d. a lb., and during the last three months 9½d. per lb.
– I rise -to order. I ask if, at this juncture, the honorable senator is in order in discussing the economic position of the wool industry, which is not in any way related to the subject of whether an industrial organization should or should not be de-registered. A strike is an offence against the law. The justification for a certain award is not a proper subject to discuss under this clause which relates merely to whether in certain circumstances the registration of industrial organizations should be cancelled.
– The honorable senator is entitled to make only a brief reference to the economic position of the industry. He must, as I have already ruled, confine his remarks to the clause under discussion.
– I am endeavouring to prove that it is most essential to retain power to de-register an organization when its members have flagrantly disobeyed an award of the court under which they are working. I think that I am in order in directing attention to the fact that the wool industry is in an unsatisfactory position, particularly as an honorable senator who preceded me endeavoured to prove th at it was flourishing
– I again ask the honorable senator not fo discuss the economic position of the wool industry; but to confine his remarks to the clause.
– I thought that in supporting the retention of these paragraphs which give the Registrar power to de-register an organization when its members have disobeyed the law I should be able to reply to the statements of a previous speaker. The present price of wool is 9½. a lb.
– Order ! The honorable senator is again transgressing my ruling.
– I have no wish to do so. I shall content myself by stating that I shall vote for the retention of paragraphs j, k, andl.
– I desire to reply to one argument raised in support of the retention of these paragraphs, and to make a point, which to me is very definite. Senator H. E. Elliott said that in connexion with an industrial dispute which occurred in Mourilyan, in Queensland, the local branch of the organization disobeyed an award of the court. Supposing that local branch had been expelled by the organization, and the members resolved, even if they had been “ disciplined “ by the parent organization, to act unitedly. They could still continue to act as an organized body with exactly the same power industrially as before. In such circumstances the position would probably be worse, because they would be unfettered by any association with the organization. It has been argued that these paragraphs, if retained, will provide a method to discipline, not only individual members, but also groups of members or branches; but they will not do anything of the kind. The accusation of an honorable senator opposite that I have been inciting men in the pastoral industry to strike has no foundation in fact. The men spontaneously refused to work under an award of the court.
– And the honorable senator urged them to continue to strike.
– I hope that in similar circumstances I shall always do so. They deserve all they can get. In this instance the men acted quite spontaneously as they did in 1922, when an attempt was made to reduce their wages. The men assembled in Sydney, and in other centres, and refused to work under the award.
– And they were urged by four men who were going round in a motor lorry not to continue at work.
– That is another matter. What occurred subsequently was the result of the joint action of these men whomI said spontaneously refused to accept work, and asked their fellow workers in other localities to help them. It was not the organization as such that directly or indirectly incited the men. I am not persona grata with the Austalian Workers Union. That organization will not have me at any price. It is ridiculous to suggest that the organization can be bound by the action of some of its members. I unequivocally assert that the objection to the award was a spontaneous act on the part of the men who subsequently came together to oppose it. In what way can the organization be held responsible for their action? What would be the effect of attempting to discipline the men individually? Any one who attempted to do so would be laughed at. I say more power to them. They should not be expected to work under such an atrocious award.
– In view of the strenuous opposition which is offered by Government supporters to the retention of these paragraphs there must be something in them which has not yet been disclosed.
– That is unworthy of the honorable senator.
– Apparently the members of these organizations want to have it both ways. They want to be registered under the act, and also to have the right to act in contravention of it.
Sitting suspended from 12.45 to 2.15 p.m.
– If the VicePresident of the Executive Council (Senator Daly) is correct in his contention that paragraph a is as wide as it possibly can be, and that under it “ for any reasons “ the registration of an organization may be cancelled, what possible objection can there be to retaining these paragraphs?
– They limit the discretion of the judge.
– Not at all, because under sub-section 5 the court may exercise a wide discretion. The court would realize the seriousness of deregistering an organization, and would not treat the matter lightly. The law has particularly provided that the order of the court may be modified. There is no limitation or discretion, but only a pointing of the way.
– That is where the limitation comes in.
– In the waterside workers award, Judge Beeby provided that any rule of an organization, or branch thereof, which contravened an award, should not be valid. I cannot see the reason for objecting to these provisions being retained. They are disciplinary measures.
– They are anti-British.
– No. In the judge is vested a discretion - -
– To punish an innocent man.
– No. The Leader of the Senate, who says that we should act in accordance with the principles of British justice, knows that the judge would exercise his discretion under sub-section 5, which reads -
Upon cancellation of the registration of an organization, the organization and its members shall cease to be entitled to . the benefit of any award made under the act and, subject to any order to the contrary made by the court, the award shall in all other respects cease to have any force or effect.
The widest possible discretion is vested in the court. It may cancel the registration of an organization with respect to Queensland and leave it in force as regards South Australia, and vice versa.
– Does the honorable senator suggest that the court could constitutionally do that?
– I suggest that the court may constitutionally do anything it likes in the matter of deregistering an organization. There is nothing in the Constitution which deals with awards. We all know what happened in connexion with the waterside workers. There is no valid argument for eliminating these provisions from the existing legislation. If the Minister is right that under paragraph a anything may be done, then why does he object to things which admittedly have caused trouble in the past?
– Under paragraph a the judge would act in accordance with the ordinary principles of British justice.
– The matter is still within his discretion. He would take into consideration whether the members, or a substantial number of the members of an organization or branch, had repeatedly or systematically committed offences against the act or failed to comply with an order or award. I do not. think that any honorable senator would suggest that if a substantial number of the members of such an organization as the Australian Workers Union were to embark on a policy of strikes, either at the leading of the executive or against its advice, that fact would not be taken into consideration under paragraph a.
– They would be safe so long as they said nothing.
– The executive ought not to be inarticulate. If there is an award the executive should see that it is obeyed.
– The amendment would make that more difficult.
– At the present time the executive of the organization mentioned is evidently finding it difficult to say anything. In my opinion, it should be articulate. I see no objection to the retention of these provisions.
Question - That the letters and word j,k, andl, be left out (Senator Pearce’s amendment) - put. The committee divided. ( Chairman - Senator Plain.)
Majority . . . . 15
Question so resolved in the affirmative.
Amendment agreed to.
Clause, as amended, agreed to.
After section 60 of the principal act, and before the heading “proclaimed organizations” the following section is inserted: -
During the pendency of any dispute or matter before the court, no resignation of or discharge from the membership of any organization shall hare effect unless the member accepts employment in an industry other than that to which the dispute or matter relates.
Senator Sir GEORGE PEARCE (Western Australia) [2.25]. - I move -
That proposed new section 61 be left out with a view to insert in lieu thereof, the following new section: - “61. A member may resign his membership of any organization -
if he accepts employment in an industry other than that represented by the organization, or
on giving one month’s notice and the payment of all dues to the date of his resignation.”
The proposed new section 61, as printed, provides that a member shall be entitled to resign if he accepts employment in an industry other than that to which the dispute or matter relates ; but that otherwise he may not resign during the pendency of any dispute. In practice, that means compulsory membership of an organization. It is a practice of the bigger unions to file another plaint as soon as an award has been given. They do not necessarily go on with it; but the filing of the plaint gives them a hold on their members, because no member may resign while that plaint is before the court. Seeing that the plaint may never be proceeded with, members of a union are committed to a life-long membership. Senator Rae said that this is a free country.
– I ask the committee to consider the vital nature of this amendment. Prior to the last amending act, there was a provision which precluded a member from resigning from an organization during the pendency of a dispute. There were good reasons for that provision. Questions of jurisdiction, or of the cost of proceedings, might arise.For some unknown reason the late Government omitted that particular section when introducing its amending legislation. This Government desires to restore it. I submit that it should be restored unless some very strong reasons are advanced for not doing so. There are about 700,000 trade unionists in Australia today. I challenge the Leader of the Opposition (Senator Pearce) to point to one complaint that he has received concerning this provision.
– I have seen plenty of them.
– I challenge the right honorable senator to name one complaint that has been made as a result of the operation of this provision. I recognize that honorable senators On this side have to accept so much of the bill as the Opposition chooses to give them. I suggest to the Leader and members of the Opposition that this is not the class of amendment that will create that good feeling that should exist between this and another place. The right honorable the Leader of the Opposition said, “ Of course, the unionist might join another industry.” The proposed new section enables him to do so. All that it asks is that during the pendency of any dispute or matter before the court, no resignation shall take effect “ unless the member accepts employment in an industry other than that to which the dispute or matter relates.” Certainly no adequate reasons have been advanced by Senator Pearce in support of his amendment. The very cases mentioned by the right honorable senator are covered by the proposed new section. A man may resign from his union if he so desires. Nearly every trade union in Australia has rules that have been passed by the Industrial Registrar, and its members enter into a contract that no resignation shall take effect until three months after notice in writing has been given; certainly not during the pendency of a dispute. The proposed new section seeks to bring this legislation into conformity with the accepted practice that has prevailed for something like a quarter of a century, a practice that was wiped out, I admit, by amending legislation some months ago. Unless good grounds can be advanced against the reinstatement of this principle, I suggest that the majority in the Senate will simply be exercising the discretion that it possesses in an arbitrary, as opposed to a truly legislative manner. The new section which we propose does not permit of any very great debate. I put it to the Opposition that it might easily have been allowed to remain in the principal act. The only people who will be affected are members of trade union organizations, whom honorable senators on this side represent. I repeat, the right honorable the Leader of the Opposition has no mandate or instruction from any trade unionists in Australia to insist upon the proposed new section being rejected by the Senate. I ask honorable senators not to vote on the amendment on purely party lines, but in the proper spirit in which each one of them should approach his duties in this Senate.
Question - Thatthe amendment be agreed to (Senator Pearce’s) - put. The committee divided. (Chairman - Senator Plain.)
Majority . . . . 8
Question so resolved in the affirmative.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 47 to 49 agreed to.
Section 72 of the principal act is amended -
Section proposed to be amended - (2.) Every organisation and every branch of an organization shall filewith the Registrar in the month of March in each year, or at such other time as is prescribed, a copy of the records required to be kept under this section, certified by statutory declaration by the secretary or other prescribed officer of the organization or branch to be a correct statement of the information contained therein.
. - This clause makes it obligatory upon organizations to keep a record of their members, and to furnish copies of it to the court at stated periods. That procedure would involve the organizations concerned in a great deal of work and expense, without effecting any really useful purpose. Large organizations would be forced to have typed from their office records copies of their list of members, which would have to be lodged with the Registrar. In the case of those organizations whose membership is of a migratory nature, lists that were lodged would be obsolete almost before they reached the office of the Registrar. I suggest that, instead of asking organizations to submit a list of their members to the Registrar, the bill should provide that they be instructed to keep 3uch records available at their offices, open to inspection by any authorized persons, as prescribed by the act. I therefore move -
That after paragraphb, the following new paragraph he inserted: - (ba) by inserting after the word “ section “ in sub-section 2, the words “ excepting the list of its members “.
If this amendment is agreed to, I shall move further amendments to provide that a list of members of organizations shall be open to inspection at the office of the organization during the usual office hours by any persons prescribed. My amendment does not affect the efficacy of the proposed system in any way, as the record would still be open for inspection by any authorized person. Many organizations would be saved the considerable expense involved in having to type lists which, because of the migratory nature of the callings of their members, are likely to become obsolete almost before they are in the hands of the Registrar.
– I hope that the committee will agree to Senator O’Halloran’s amendment. All that the trade unions are asking for is the concession that is given to companies under the companies law.
– Public companies are required to furnish lists of shareholders.
– But not under the conditions which apply to trade unions. At this time of depression the extra typing involved in having to supply these lists of members is an item to be considered. The unionists are prepared to make available at their offices lists which any one entitled to do so may inspect al any time. Surely that should be sufficient. These lists will only be required when proof of membership has to be given, and that proof can be obtained readily enough from the records at ‘the union offices.
Senator Sir GEORGE PEARCE (Western Australia) [2.50]. - This amendment has been sprung on the committee, and I should like to have a little time to consider the effect of it ; but speaking on the spur of the moment, it occurs to me that there is at least one good reason why these lists of members of unions should be filed with the Registrar. It is the decision of the High Court that awards of the Arbitration Court apply to the members of the organizations who are parties to the cases upon which the court has adjudicated. If proof should be required of a man’s membership of any particular organization, the test can be applied by a scrutiny of the list of members of the organization on the file in the Registrar’s office. If the man has joined the union since the list has been furnished, the onus of proof of his membership rests upon the organization. A member of an organization is compelled by the bill, as now amended by this committee, to notify his employer of the union of which he is a member. The committee has retained that provision in the act for a very good reason. Employers are often obliged to differentiate among their employees, who belong to different unions. There may be two grades of workers, one working under an award rate of 15s., and the other under an award rate of 16s., and a man may say that he is a member of the union whose rate is 16s. The list of members on file at the Registrar’s office affords to the employer an opportunity to check the man’s statement. I do not think that there will be very much expense involved in supplying these lists. The Australian Workers Union has various branches, and each branch, I presume, keeps a record of its members, and a list of all transfers from one district to another. In the Carpenters Union to which I belonged the members’ roll was kept continuously. Copies were furnished to the . central office at regular periods, showing all transfers, arrivals, and departures. It is only necessary to type several copies of the membership roll, and forward two of them, to the central office, one of which can bepassed on to the Registrar.
– The trouble is that that is not the procedure followed.
– It should be the procedure, because it is a ready and inexpensive method of certifying to a membership of a union at any given date.
SenatorRAE (New South Wales) [2.56]. - I do not think the matter is quite so simple as Senator Pearce states. Many of the members of the Australian Workers Union, which extends over the whole of the Commonwealth, are of the nomadic class, and, as Senator O’Halloran has pointed out, a list of the members of the organization would always be more or less incorrect, because of the changes of address that are constantly taking place. If I am a resident of New South Wales I may, if I think fit, become a member of the Adelaide branch, and subsequently may transfer from Adelaide to Brisbane, while still remaining a resident of New South Wales.
– But at a given date of the year, the honorable senator would be a member of one branch or another, and be returned on the list of members as such.
– A membership spread all over Australia takes a lot of sorting out, and a lot of time is occupied in preparing a list of the members of an organization so wide-spread. Even while the work of preparing the list is in progress changes take place; deaths frequently occur. In any case, a list of members is not of much value, because it is the commonest of things for shearers, in particular, to change their names.
– So that they may be on the rolls of two or three electorates ?
– Or for the purposes of evading income taxation ?
– Not for either of those sinister purposes. If I have written months previously to a squatter or contracting firm asking for a stand or a pen in a particular shed, and I have received an affirmative reply, it may not always suit me to take that pen. In the meantime, I may get a very much better job. I may, however, meet a mate looking for a pen, and may say to him, “ Use my name and take mypen ; take the whole box and dice.” He then goes shearing under my name for the time being. He may be Bill Jones in one shed and Tom Brown in the next. This practice has, to my knowledge, been followed for over 45 years. I have not done it myself; but I would not hesitate to do it if necessary. Seamen do the same frequently, and I daresay that it is done in other callings. If a man does not value his own particular name, I do not see why he should not take another if it is more convenient, so long as there is no criminal intent.
– What would be his namein the books of the union?
– Heaven knows. Probably his real name would appear there, but I have known of men who worked under an assumed name for two or three years. The point I wish to make is that, in a big organization like that of the Australian Workers Union, the membership of which is spread over an area two-thirds the size of Europe, it is impossible to maintain accurate lists of members and their addresses.
– The Sydney branch of the Australian Workers Union contains between 20,000 and 22,000 members, and of that total only about 15,000 members would have permanent addresses.
– But the union must have the names and addresses of its members for its own purposes.
– That may be so, but the men change their addresses so frequently that it would be inflicting a hardship upon the organization to require it, from time to time, to submit lists of its members, together with their addresses. I appeal to honorable senators opposite not to further alter the bill. The time is rapidly approaching when the Government must refuse to bow to the will of the brutal majority opposite. I do not intend to play the part of censor of honorable member’s speeches. They have been elected to this chamber on the widest possible franchise and are entitled to express their views; but I object to the Leader of the Opposition (Senator Pearce) suggesting that any proposal that emanates from this side of the chamber is in the nature of a confidence trick. Even at this late hour in the discussion of this measure the Government and its supporters are entitled to some say as to the treatment to be accorded to the bill. These provisions will not affect the manufacturers or pastoralists, but if these amendments moved by honorable senators opposite are persisted in they will seriously interfere with the administration of trade union organizations. I hope the committee will accept the amendment submitted by Senator O’Halloran.
Senator Sir GEORGE PEARCE (Western Australia) [3.6]. - I do not intend to divide the committee on this clause, but I suggest that the mover of the amendment should alter it to provide that the person who will have the right to inspect the books of an organization will not be a person prescribed by regulation, but a person duly authorized by the Registrar.
– The Government will accept the right honorable gentleman’s suggestion.
Amendment agreed to.
Amendment (by Senator O’halloran) agreed to -
That the following new paragraph be added: -
by inserting the following new subsection: - “ 4. The list of members of an organization shall be open to inspection at the office of the organization during the usual office hours by any person authorized by the Registrar.”
Clause as amended, agreed to.
Clause 51 (Appointment of auditors of organizations).
Senator Sir GEORGE PEARCE (Western Australia) [3.11]. - This clause amends sections 72a by substituting the word “ competent “ for “ qualified “ in the provision for the appointment of auditors. I am not suggesting that the record of trade unions is worse than that of other organizations, but from time to time we read reports in the newspapers of the funds of trade unions having been illegally dealt with by officials. Only a week ago it was reported that an official of one of the branches of the Australian Workers Union had got away with between £300 and £400.
– The Australian Workers Union always employs “ qualified “ auditors to carry out the inspection of its books.
Senator Sir GEORGE PEARCE Then I am afraid that to be “ qualified “ is a doubtful recommendation. Nevertheless the Minister’s statement is no justification for the employment of “competent” instead of “qualified” auditors.
Clause agreed to.
Clauses 52 and 53 agreed to.
Clause 54 (Repeal).
Senator Sir GEORGE PEARCE (Western Australia) [3.13]. - This clause repeals sections 86a to 86d, as well as section 87, under which penalties are imposed upon persons who try, by intimidation and other means, to prevent other persons from carrying out their lawful occupation. It is a wellknown practice in trade union organizations during industrial disputes to intimidate persons who wish to work in accordance with awards of the court. I know it will be said that there is sufficient power under State laws to meet any situation that may arise; and I realize that we have to rely upon State authorities to police many laws passed by the Commonwealth Parliament. It should, however, be obvious to everyone that the federal industrial code should contain provisions for the protection of those persons who wish to work in accordance with its laws. I, therefore, ask the committee to reject this clause.
– The section to be repealed was inserted during recent years, and in the opinion of the Government should not be retained, as thereis ample power under our State laws to deal with offences covered by this section.With the exception of paragraphf of section 86a, this provision, like that relating to secret ballots, unnecessarily and ineffectively loads the legislation. Apparently we have been living in an age of gestures, and if we are not doing anything we have been pretending that we have.
– There is a good deal of intimidation going on out west.
– I do not know that any act has been committed which cannot be effectively dealt with under the State law. There has been a good deal of intimidation ever since the arbitration system was established, but no one will suggestthat prior to the insertion of the section to be repealed persons were not prosecuted for a breach of this law. If honorable senators opposite are really honest they will agree to the repeal of this provision, and leave the act as it previously stood. It is a mere gesture.
– No, it is not.
– Since this legislation has been in operation we have had more industrial trouble - I do not blame the legislation - but have there been more prosecutions? Men have been fined, but it has been impossible to collect the penalties.
– This will not affect any one who observes the law.
-Why be hypocritical, and retain a provision which is of no service? By doing so we would be proclaiming to the world that we have so little respect for State law thatwe have to provide in federal legislation what is already covered by State laws. There have been a number of lockouts and strikes since this provision has been in operation; but how many prosecutions have there been under it against men using threats or violence to prevent other? from working?
– Garden and his colleagues were prosecuted in connexion with their action in the timberworkers’ strike.
– But they were prosecuted under a State law. We enact such provisions, but legal advice is that it is better not to prosecute under the federal law, because of the doubt concerningits constitutionality. The person to whom the Leader of the Opposition referred was not prosecuted under the Commonwealth law, but under the State law.
– The timber-workers in New South Wales were proceeded against under the State law.
– Yes. The trouble is, as Senator Colebatch pointed out in connexion with the Transport Workers Act, that the Commonwealth has been making gestures and legislating under its trade and commerce powers and under its conciliation and arbitration powers. The Crown Law officers, who were supported by a King’s Counsel, drew the attention of the Minister to the fact that it was extremely dangerous to prosecute Garden under this section. If all the members of the Employers Federation were lawyers, they would realize how ineffectual is legislation of this nature, and it should not be on the statute-book. But, because they happen to be laymen and believe that there is something in it, sections such as that which it is now proposed to delete are included. The Government desires to direct the attention of the people to the limited constitutional powers of the Commonwealth in this respect, and to impress upon Parliament the necessity to cease making gestures of this kind.
– Will the Minister adhere to that principle with respect to the clauses which have been postponed?
– Certainly. I think the honorable senator will admit that, in the matter of principles, I am most consistent.
– The Minister is amazed at his own consistency.
– If the Leader of the Opposition (Senator Pearce) will deal with the postponed clauses in accordance with the principle I have enunciated, I believe that out of this discussion we shall be able to produce a measure free of all gestures, and one which will be of benefit to employers, employees, and the general community. I trust that honorable senators will leave this power to the State. The Leader of the Opposition should tell his colleagues the number of instances in which prosecutions which should have been launched under this section were dealt with under the State law.
– The Minister (Senator Daly) bases his case on the assertion that offences against this section have been dealt with under the State law. The section to be repealed reads -
Any person who has committed an offence against sections forty-two, fifty-six o, fiftyeight e, seventy-two, seventy-two a, eightythree, eighty-three’ a, eighty-four, eighty-five, or eighty-six n of this act may be charged accordingly before the court, and the court may impose the penalty provided by this act in respect of that offence.
The section has been inserted to strengthen the arbitral provisions of the act, and to prevent intimidation of persons who wish to work under the terms of an award of the court.
– It is absolutely futile.
– The Minister directed his attention to section 86a; but it is also proposed to repeal 86b, which imposes a penalty if an organization or a ‘branch of an organization imposes a penalty of any kind upon a member, because he has worked in accordance with the terms of an award of the court. Section 86d provides that any person who publishes any report encouraging or inciting men to commit a breach or nonobservance of this act shall be guilty of an offence. I understand that, at the moment, a prosecution is pending concerning an alleged offence under that section. If our arbitral power is incomplete, the whole of our industrial legislation is unconstitutional.
– How many prosecutions did the Government of which the honorable senator was a member launch under the federal law?
– There were several; but a number were launched for acts of violence and intimidation, and were dealt with under the State law. This provision is necessary in order to buttress the arbitral power of the Commonwealth, and to insure that awards, when made, shall be observed. As the penalties with respect to strikes and lockouts have been repealed, this provision should be retained.
– I should like to inform Senator McLachlan that I am unaware of any prosecution being launched under the federal law against the Labor Daily. If the honorable senator will peruse the files of that newspaper he will find that the Graziers Association has cited the publishers of the Labor Baily to appear before a State court. I cannot support the prosecution of any newspaper in such circumstances. It was doubtless that case that the honorable senator had in mind.
– The Labor Daily said more about this Government’s budget than any other newspaper.
– It did. The Labor Daily can easily defend its action. I submit that Senator McLachlan should withdraw his remarks with respect to the Labor Daily.
– When the last bill to amend our arbitration legislation was before Parliament a number of alterations were made, principally in the direction of creating new offences and providing elaborate penalties for them. Since that time one of the most disastrous strikes which Australia has experienced has taken place. I refer to the timber-workers’ strike. During that strike a number of pmployers came to Canberra to beg the then Attorney-General to prosecute various persons under the federal law. Every honorable senator knows that they were advised to go back to Sydney and prosecute the persons concerned under the State law. In the light of that happening, what is the use of pretending that these provisions mean anything? They mean nothing and, therefore, we might as well abandon them.
– We have provided certain penalties in our arbitration legislation which we all admit cannot be enforced.
– That is not admitted.
– Every prosecution under that legislation has failed. The Vice-President of the Executive Council (Senator Daly) suggests that these penalties should he omitted, and that the States should accept the responsibility for prosecuting for offences against the federal law. His argument supports the contention that the Commonwealth should vacate the field of arbitration legislation. If we cannot enforce our laws, we should not pass them. Senator Daly admits that it is the function of the State to prosecute in industrial cases. In that case we only humbug ourselves as well as the people when we say that the Commonwealth should control industrial matters. It is improper , to pass laws imposing penalties which cannot be enforced.
– It is a question of constitutional power.
– If we have not the power to enforce our awards, we should not legislate for the making of awards. Laws are obeyed by some only because of the penalties for disobedience. Eventually, this Parliament will have to hand over to the States all industrial legislation. It does not matter whether we agree to the clause or not; it means nothing.
– When I was a boy at school I learned of Magna Charta, which was described as a charter of freedom. Certainly the last Arbitration Act, which was passed in a period of violent reaction, was a charter of slavery for the organized workers of this country. If honorable senators opposite, by means of their majority, intend to retain the slavery provisions, then so far as I am concerned, I say to them “ Take the bill ; I wash my hands of it. Let your reactionary crew do what it likes”.
– The honorable senator must moderate his language.
– I did not say that honorable senators opposite were reactionary; but that their reactionary crew - either those whom they employ, or those who employ them - are reactionary. However, if the term is unparliamentary, I withdraw it. In a shearing dispute which arose in 1922 - before this reaction ary legislation to which we are now trying to give a semblance of decency was enacted - I was prosecuted on an absurd charge of instigating a strike. The strike occurred before I took a hand in it, although I admit that I did my best to make it a success.
– Was there a breach of an award?
– I do not care whether there was or not. I resisted the award which, in my opinion, was an abominable one. When I appeared in court - it was a State court - the magistrate asked me how I pleaded. I told him that I refused to plead, because I realized that no socialist could expect to get justice. I said that I knew how the case would go, because, in the courts of the land, a man was frequently convicted before he was tried. My prediction was correct; for, almost immediately, the magistrate ordered me to pay a fine of £100 or be imprisoned for nine months. I appealed against his decision; but it was upheld by the District Court. I did not, however, pay the fine; nor did I go to gaol. I wrote to the then Attorney-General, Sir Littleton Groom, and told him that any government which attempted to collect a fine of that nature should be ashamed of itself. I asked him why a man on one side of an imaginary line could do with impunity what would be regarded as a crime if done by a man on the other side of that line. My fine was remitted. I contend that these provisions are a part of a code of legalized slavery of the organized workers of Australia. Such legislation I view with abhorrence and contempt. Even if these provisions are multiplied one hundredfold I shall, at every opportunity, when it is worth while to do so, disobey them and defy all the courts in the land to prevent me from exercizing my right as a free citizen to advise men to accept or to reject work.
– Does the honorable senator believe in law at all?
– I do ; but, unless a law is founded on justice, I have no respect for it. Senator Herbert Hays said that the law is brought into contempt if there is no power to enforce it. I tell him - and I speak as one who is intimately acquainted with the workers, and whose acquaintance with them is up to date - that among the great mass of the workers there is already the utmost contempt for the class legislation passed by this Parliament. With the exception of the legislation passed when the Labour party has been in power, the great bulk of our laws have been enacted by men who have not only refused to give justice to the workers, but have also brought in repressive legislation to help the “boodlers” to exploit the wage-earners. I am only voicing the opinion of the great mass of workers in this country when I say that the great mass of the laws passed by the various parliaments of Australia, so far as they relate to the dealings between one class and another class in the community, are held by them in the utmost contempt. When honorable senators opposite talk about class hatred and conciliation, I ask that those who are responsible for the present terrible condition of the workers shall show some true conciliatory spirit, and a desire to be friendly, instead of the conciliation which reminds one of the spider’s invitation to the fly. When they are prepared to treat the workers justly, the workers may have some respect for the law. But until that time comes they cannot do so. The workers will obey repressive legislation only so far as the whip of necessity compels them to do so.
Question- That clause 54 stand as printed-put. The committee divided. (Chairman - Senator Plain.)
Majority . . 7
Question so resolved in the negative.
Clause 55 agreed to.
Clause 56 (Court may impose penalties for certain offences).
– During the course of my second-reading speech, I drew the attention of the Minister to what has been accomplished in this connexion, and I should like to know if he still persists in the amendment of the act proposed by the Government. Section 89b of the principal act provides that any person who has committed an offence against sections 42, 56 and certain other sections, may be charged accordingly before the court, which may impose the penalty provided by the act in respect of the offence.
– I cannot accept any amendment, but I am not debating the clause.
Question - That clause 56 stand as printed - put. The committee divided. (Chairman - Senator Plain.)
Majority . . . . 13
Question so resolved in the negative.
Postponed clause 9 -
Section 18c of the principal act is repealed and the following section inserted in its stead : - 18c. - (1.) The GovernorGeneral may appoint Conciliation Commissioners of such number and upon such terms and conditions as to remuneration and otherwise as he thinks fit. (4.) The Attorney-General may suspend a Conciliation Commissioner from office for misbehaviour or incapacity. (5.) The Minister shall within seven days after the suspension, if the Parliament is then sitting, or if the Parliament is not then sitting, within seven days after the next meeting of the Parliament, cause to be laid before both Houses of the Parliament a full statement of the grounds of the suspension, and if within sixty days thereafter an address is presented to the Governor-General by the Senate and the House of Representatives praying for the restoration of the Conciliation Commissioner to office, the Conciliation Commissioner shall be restored accordingly ; but if no such address is so presented the Governor-General may confirm the suspension and declare the office of that Conciliation Commissioner to be vacant and the office shall thereupon be and become vacant. (7.) A Conciliation Commissioner shall have the powers of a judge under section sixteen and sixteen a of this act, but the appointment of a Conciliation Commissioner shall not affect the exercise by a judge of his powers under those sections.
Provided that a Conciliation Commissioner Shall not have power, in pursuance of this section, either to make or vary an award, which, by reason of the provisions of section eighteen a or eighteen aa of this act, cannot be made or varied by a single judge. (9.) Any award or order made by a Conciliation Commissioner pursuant to the power conferred by this section shall for all purposes be and be deemed to be an award or order of the court”.
Upon which Senator Pearce had moved by way of amendment -
That sub-sections 7, 8 and 9, proposed new section 18c, be left out.
Amendment - by leave - withdrawn.
Senator Sir GEORGE PEARCE (Western Australia) [3.55]. - I understand that it is the intention of the VicePresident of the Executive Council to move the amendment of which he has given notice. I have a prior amendment, and move -
That after the word “ Commissioners “, sub-section 1 of proposed new section 18c, the words “ of such number and “, be left out with a view to insert in lieu thereof the words “ not more than two in number “.
Senator Sir GEORGE PEARCE.I shall alter my amendment accordingly.
Amendment amended accordingly and agreed to.
Senator Sir HAL COLEBATCH (Western Australia) [3.57]. - I direct the attention of the Senate to sub-sections 4 and 5 of proposed new section 18c. During the long debate this morning, we heard several references by the Leader of the Government in the Senate (Senator Daly) to the necessity for preserving the traditions of British justice. Here it is contemplated to appoint an officer with all the powers of a judge to determine issues which will vitally affect not only the fortunes but the livelihood of people. Yet it is provided, contrary, I suggest, to any of the principles of British justice, that that officer shall be subject to summary dismissal by the Attorney-General, and that he shall not be reinstated except by a resolution of both Houses of the Parliament. The Attorney-General will know when he makes a suspension that, on party lines, one House will be entirely behind him. I invite the Leader of the Government in the Senate to explain how he can reconcile with the traditions of British justice the appointment of an officer who is given the power to judge, and who is to be subject to summary dismissal by the Attorney-General, without any possibility of redress.
– As a matter of fact, the officer in question is not exposed to being summarily dismissed by the AttorneyGeneral. The proposed new sub-sections are absolutely consistent with the principles of British justice. The AttorneyGeneral may suspend a conciliation commissioner from office for misbehaviour or incapacity.
– Of which the Attorney-General is the judge.
– Not necessarily. The Attorney-General is the leader of the Bar, the head of the legal fraternity of Australia. If he did not act consistently with the principles of British government, goodness knows who would. He may suspend a conciliation commissioner from office for misbehaviour or incapacity. There is nothing extraordinary about that. He will not suspend such an officer excepting for misbehaviour or incapacity. A similar provision has operated in the” various States in connexion with the wages board system. He suspends the commissioner for proven misbehaviour or incapacity. No Attorney-General would take upon himself to suspend a commissioner until some tribunal had heard him in defence and had held the charge of misbehaviour or incapacity to be proved. To show conclusively that there must be an inquiry before a suspension, it is further provided in the proposed new section that -
The Minister shall within seven days after the suspension, if the Parliament is then sitting, or if the Parliament is not then sitting, within seven days after the next meeting of the Parliament, cause to be laid before both Houses of the Parliament a full statement of grounds of the suspension, and if within sixty days thereafter an address is presented to the Governor-General by the Senate and the House of Representatives praying for the restoration of the Conciliation Commissioner to office, the Conciliation Commissioner shall be restored accordingly; but if no such address is so presented the Governor-General may confirm the suspension and declare the office of the Conciliation Commissioner to be vacant, and the office shall thereupon be and become vacant.
If Senator Colebatch will suggest an amendment preserving the high dignity of this particular office, I am not pledged to the verbiage, of sub-section 4. All that the Government desires is to place before Parliament the exact grounds upon which a conciliation commissioner may be suspended. He may not be suspended except on the grounds of misbehaviour or incapacity, and I do not mind if the honorable senator seeks to strengthen the case by inserting the word “ proved,” because Parliament could then assume that the ordinary practice which operates under the British system of executive government had been applied - that when Parliament throws on the AttorneyGeneral the responsibility of suspending a man for misbehaviour or incapacity he will try the man first before inflicting on him the punishment of suspension.
Senator Sir HAL COLEBATCH (“Western Australia) [4.2]. - I propose to submit two slight amendments. The Leader of the Senate has not touched upon the real principle at stake, that it should be impossible for the executive to interfere with the administration of justice, and in order to protect the position as much as possible, I move -
That after the word “ for,” sub-section 4, of proposed new section 18c, the word “ proved “ be inserted.
If the Leader of the Senate has no objection to that I shall have an equally trifling amendment to move in the next sub-section.
– I accept the amendment.
Amendment agreed to.
Senator Sir HAL COLEBATCH (Western Australia) [4.3]. - I move -
That after the word “ Senate “, sub-section 5 of proposed section 18c, the word “and” be left out with a view to insert in lieu thereof the word “or”.
The effect of that amendment is to restore something like the protection afforded to judges. Under the Constitution, before a judge can be removed from the Bench, both Houses of Parliament must agree as to his proved incapacity or misbehaviour. The sub-section as it now stands reads -
The Minister shall within seven days after tlie suspension, if the Parliament is then sitting, or if the Parliament is not then sitting, within seven days after the next meeting of the Parliament, cause to be laid before both Houses of the Parliament a full statement of the grounds of the suspension, and if within sixty days thereafter an address is presented to the Governor-General by the Senate and the House of Representatives praying for the restoration of the Conciliation Commissioner to office, the Conciliation Commissioner shall be restored accordingly; but if no such address is so presented the Governor-General may confirm the suspension and declare the office of the Conciliation Commissioner to be vacant, and the office shall thereupon be and become vacant.
Under that provision both Houses of Parliament must agree upon the suitability of a commissioner to be restored to his position. My amendment is to make it impossible for a commissioner to be removed if either House of Parliament considers that his incapacity or misbehaviour has not been proved.
– I do not know that there is any real vital objection to the amendment, but, if I were a conciliation commissioner, I should prefer that the obligation rested on the Executive Council to submit the matter to both Houses of Parliament.
– Under the honorable senator’s proposal it seems to me that it would be a case of the first House that got in with a resolution. If, in another place, the Leader of the Oppositionmoves a motion that a suspended commissioner be restored to his office, and the motion is negatived, and a similar motion is carried in this chamber, what is likely to happen? The honorable senator knows that it was resolved at the latest Imperial Conference that the Governor-General is bound to accept the advice of the Prime Minister.
– So far as it is within the law.
– The Prime Minister would have to advise the GovernorGeneral whether he should confirm the suspension of the conciliation commissioner, according to the decisionof the House ofRepresentatives or restore him to his office in accordance with the decision of the Senate. What advice could he give the Governor-General?
– He must obey the law and advise the Governor-General to restore the commissioner in accordance with the resolution of the Senate, praying for the restoration of the Commissioner to his office.
– I candidly admit that if the provision is amended, as suggested by Senator Colebatch, a complication may arise.
– It is not possible for itto arise.
– As Senator Pearce has had so many years more ministerial experience than I have had, I bow to his declaration on the point and must oppose the amendment.
Senator Sir GEORGE PEARCE (Western Australia) [4.11]. - I agree with Senator Colebatch that the previous amendment was of a minor character, but I do not agree that the amendment he has now moved may be similarly described. It opens up a most difficult position. If the grounds upon which a conciliation commissioner has been sus
– Not at all. The suspension becomes automatically cancelled.
Senator Sir GEORGE PEARCE.But there must be an order in council removing the suspension. I think that this is a case in which the decision of Parliament should be obtained. The trouble is that in this bill the Government has departed from the procedure laid down for the removal of judges by a resolution of both Houses of Parliament.
– The same procedure applies in regard to the removal of the Auditor-General.
Senator Sir GEORGE PEARCE.I cannot see why it cannot be adopted in this case. I cannot support the amendment.
Senator Sir HAL COLEBATCH (Western Australia) [4.12]. - I cannot understand the argument of Senator Pearce. In order to test it, let us suppose that an amendment is made in the act under which the Auditor-General is appointed by which he may be suspended and not restored to his office unless by the direct motion of both Houses of Parliament. Yet that is exactly the position set up by this clause, exactly the opposite to the procedure that must be adopted in removing judges or an Auditor-General. A judge may not be removed except upon a motion carried in both Houses of Parliament. Under this bill a conciliation commissioner, a person who is acting as a judge, may be removed from his office, and his removal stands if it is endorsed by only one House, whereas my amendment provides that if either House says that a commissioner must be restored to his office, he is automatically restored to it without any reference to the Governor-General. He does not come into the picture until a commissioner is to be permanently removed. The position I want established is that which we have always maintained in regard tothe framing of ordinances or regulations - that either House shall be at liberty to disallow an ordinanceor regulation. I say that either House should be at liberty to disallow the suspension from office of a person exercising the responsible position of a judge. It is idle to suggest that I am trying to set up something contrary to the practice in regard to judges and the Auditor-General, when, as a matter of fact, I am endeavouringto preserve the position that neither a judge nor an Auditor-General may be dismissed from office except with the concurrence of both Houses of Parliament.. The position I want to set up is that a commissioner exercising the functions of a judge shall not be dismissed unless both Houses concur, and I do so by means of my amendment, which makes it competent for either House to insist upon the restoration of the suspended commissioner to his office.
– The committee is indebted to Senator Colebatch for having raised this point. I agree with what the right honorable the Leader of the Opposition (Senator Pearce) has said, and I am prepared to accept an amendment on the lines suggested. I have looked up the procedure for the removal from office of the Auditor-General. The Audit Act 1901 provides in section 7, sub-section 2 -
– I will accept an amendment on those lines.
– It seems to be afair provision, and I need hardly remind honorable senators that the Government is anxious to see the best traditions of
British justice incorporated in this measure.
– I ask leave to withdraw my amendment on the understanding that later the Minister will submit an amendment on the lines indicated.
Amendment - by leave - withdrawn.
Clauses 9, 12, 24, 26, and 32 further postponed.
– I now wish to move to insert a new clause following clause 24, to be known as 24a.
The CHAIRMAN (Senator Plain).The committee has postponed consideration of clauses 9, 12, 24, 26, and 32. I suggest that the Minister submit his proposed new clause as new clause 57.
– I move-
That the following new clause be added: - “ 57. After section 31 of the principal act the following section is inserted in Division 3 of Part III.:- 31a. - (1.) An appeal shall lie to the court constituted by the Chief Judge, and not less than two other judges against any provision in any award or order of a Conciliation Commissioner or a Conciliation Committee affecting wages or hours or any condition of employment which in the opinion of the court is likely to affect the public interest. (2.) Any such appeal shall be made in the manner and within the time prescribed. (3.) On the hearing of an appeal under this section the court may -
confirm, quash or vary the award or order or part thereof which is under appeal ;
refer the award or order, or any part thereof, hack to the Conciliation Commissioner or Conciliation Committee, as the case may be, for reconsideration, and with or without such directions or suggestions as the court thinks fit; or
make an award or order dealing with the matters under appeal : Provided that no such award or order shall include any provision which would be outside the powers of the Conciliation Commissioner or Conciliation Committee, as the case may be ‘.”
Honorable senators will recall that when this scheme was under discussion one night last week, objections were voiced to the Government’s proposal, and I agreed to consider the question of a compromise. I believe the proposed new section will effectively overcome the difficulties then mentioned.’ It is proposed that an appeal shall lie to the court constituted by the Chief Judge and not less than two other judges. Honorable senators will agree that it will be better to have three judges to determine appeals. The conciliation commissioners are to be invested with certain powers, but under this provision they will not be authorized to do any thing that may affect the standard of hours, wages or conditions in industry. The fear was expressed by honorable senators who objected to the original provisions that the conciliation commissioners might, by their decisions, destroy the whole industrial scheme of wage fixation, and finally I agreed to compromise by providing for what I might term a correctional jurisdiction. As honorable senators will note, it is intended that any appeal affecting wages, hours or conditions of employment shall be made in the manner and within the time prescribed. The court may take fresh evidence before determining the appeal, and it may confirm., quash or vary an award or part of an award; it may refer the award or order back- to the Conciliation Commissioner or conciliation committee, with, or without, directions or suggestions, or it may make an order dealing with the matter under appeal. There is also the stipulation that no such award or order shall include any provision outside the powers of the Conciliation Commissioner or conciliation committee. The right honorable the Leader of the Opposition has circulated an amendment which he desires to move to the proposed new section. Perhaps it would be convenient to refer to them at this stage. The right honorable gentleman, I understand, accepts sub-section 1 of the proposed new section, but intends to move to insert after the words “ public interest “ the words “ or substantially prejudice the interests of the employers or employees in the industry”. The subsection would then read -
An appeal shall lie to the court . . . against any provision in any award or order . . which in the opinion of the court is likely to affect the public interest or substantially prejudice the interests of the employers or employees in the industry.
I suggest that the correctional jurisdiction should only be exercised when it is necessary to correct what has been done in relation to industries generally. If the appellate tribunal enters into the whole field proper for investigation by these conciliation tribunals, it will merely be duplicating the work. I cannot, therefore, accept the honorable gentleman’s amendment. It would, to use a colloquial term, be the means of “whiteanting” the scheme that the Government has in mind in connexion with an appellate tribunal. As it would be ineffective I would sooner withdraw my amendment , and stand by the bill. The second amendment of the Leader of the Opposition (Senator Pearce) is to leave out proposed sub-section 2 and insert the following new sub-section: -
Any such appeal shall be made in the manner and within the time prescribed by the rules made in accordance with section 43 of this act.
As this is consistent with the other provisions of the bill the Government has no objection to it. The Leader of the Opposition also proposes to insert after clause 24a, the following new clause : - “24b. After section thirty-one a of the principal act the following section is inserted: - 31ab. - (1.) An award or order of a Conciliation Commissioner or a Conciliation Committee shall, unless an appeal against any provision of the award or order has been made, have effect upon the expiration of the time within which such appeal may be made. (2.) Where any such appeal is made, . the award or order shall not come into effect pending the determination of the appeal by the court, or by the Conciliation Commissioner or Conciliation Committee, as the case may be, after reconsideration ‘.”
At present all the applications made are for a reduction in wages. Under this proposal by the Leader of the Opposition, such applications would go before a conciliation commissioner, and if he prescribed a reduction the organization concerned would need only to make an appeal and the old award would continue in operation until the appeal had been heard. Although that argument is against the policy of the party which I represent, it is my duty to inform the committee concerning the whole position. Some honorable senators have spoken concerning the necessity to reduce wages, and of the applications made to the Arbitration Court in that direction. I remind honorable senators, however, that they are voting with their eyes wide open, and that if this amendment is adopted and a conciliation commissioner should reduce wages, a reduction would be postponed until such time as the court dealt with the matter.
– It cuts both ways.
– Yes. Is it suggested that the court shall have power to make a retrospective award? Both employers and employees are opposed to retrospective awards because they create too rauch uncertainty, and tend towards chaotic conditions in industry which should not exist. At present it appears that if this amendment is adopted it would operate in favour of the party’ I represent, but because it destroys the general purposes of this court I am not prepared to accept it. If the committee adopts it it must take the responsibility. The Government is opposed to setting up such an appellate tribunal. The Government believes that a better course would be for the employers and employees, with the assistance of an independent chairman, to settle the matter in dispute without utilizing the arbitral powers provided in the measure. The Government fully realizes that it is in a minority in this chamber, and instead of biting at the shadow and missing the bone, is not prepared to give way even if, in doing so, it would allay the fears of honorable senators who feel that in this amendment there will be some check upon conciliation commissioners who may run riot and cause industrial chaos. I wish honorable senators to understand that the Government’s compromise, if acceptable to the Opposition, will be embodied in the legislation: If it is not it is useless to discuss it, and the Government will stand by the bill as it was presented. “We have reached the stage that the only point in dispute is that the Opposition asks for a postponement of a determination until an appeal is heard. From the point of view of the Opposition, which represents mainly - I do not say it disparagingly - the interest of the employers
– May I say the Opposition watches the interests of the em ployers? Nothing can be gained by accepting the amendment proposed by the Leader of the Opposition. I do not think any one suggests that during the next two years at least any applications will be made to the court for increased wages, and unless such applications are made there is no possibility of the amended provision operating to the detriment of the employers. All these provisions are more or less experimental.
– Is not the Clerks Union applying for an increase in wages ?
– I do not know. If this amendment is carried, quite apart from what I have already said, it will tend to encourage inefficiency in the court. Under the proposal of the Government the court is given power to quash or vary an award. If a conciliation commissioner violated a principle of industrial justice an application to the court would result in what has happened in dozens of cases. The court would treat the matter as urgent and deal with it immediately; but if a provision such as that suggested by the Leader of the Opposition is inserted and an application were made a day or two before the vacation there would be no urgent necessity to deal with it because the old determination would remain in operation. The application would not be dealt with perhaps for several months. There will be no encouragement for the court to reach finality in cases which should be proceeded with. In the opinion of the Government it is really an instruction to the court to delay its work. Seeing that the Opposition has nothing to lose, I trust that in this instance it will be able to meet the Government. I cannot see that there is much to be gained by insisting upon the amendment of the Leader of the Opposition. Under the compromise suggested by the Government the appellate tribunal has power to quash or vary an award, but under the proposal of the Leader of the Opposition there is a glorious uncertainty from the time an award is made until an appeal is decided as to what wages are to be.
– It ensures an appeal in every case.
– Yes. If an increase in wages were awarded the employers would appeal, and if there was a decrease the employees would appeal. I ask honorable senators opposite not to insist upon this amendment, but to accept what I put forward to the committee with all sincerity as a reasonable compromise.
Senator Sir GEORGE PEARCE (Western Australia) [4.43]. - The opposition to the main provisions of clause 9 is founded upon the fundamental objection that the Government under the guise of appointing conciliation commissioners is establishing another arbitral tribunal. We’ contend that they are not conciliation commissioners at all, but arbitration judges without the qualifications of judges. What is the object of the Government? It has been shown that the Arbitration Court is not overworked. The Attorney-General (Mr. Brennan) has borne testimony to that by saying that the court has so little work to do that one of the judges has been transferred to the Bankruptcy Court, and another is doing other work. In these circumstances it cannot be said that conciliation commissioners are to be appointed because the Arbitration Court is unable to deal with the cases before it. If they were to be real conciliation commissioners without arbitral power the position would be different. How can they be conciliators, and at the same time arbitrators ? Under the guise of appointing conciliation commissioners the Government is setting up additional industrial tribunals, and because of this objection it is thought that possibly Senator Daly might be able to compromise. He has now brought forward this proposal for an appeal from the so-called conciliation commissioners to the three arbitration judges. But it is to be an appeal limited to awards or orders affecting wages or hours, or conditions of employment, which, in the opinion of the court, are likely to affect the public interest.
– How many things do not affect the public interest?
– What is the public interest as affecting conditions of labour? How can it be established that the public interest is affected ?
– These matters will be settled by the judges.
Senator Sir GEORGE PEARCE.That may be so. If there is to be an appeal it should be a real thing, not a shadow. If it is not to be an effective appeal, we might as well give the conciliation commissioners full arbitral powers. If the appeal is to be a mere shadow, let us accept the bill as it stands, for what is the use of agreeing to words that mean nothing? The words in my proposed amendment would mean something. If it can be established that an award of the conciliation committee or of the conciliation commissioners prejudicially affects the interests of employers or employees in the industry, then a right of appeal will lie.
– Every detail would, have to be gone into again.
Senator Sir GEORGE PEARCE.The Opposition sees no necessity for the appointment of conciliation commissioners at all. The proposal to appoint them emanated from the Government.
– The right honorable gentleman has made a complete change of front. He wants one thing to-day and another thing to-morrow.
Senator Sir GEORGE PEARCE.The Opposition is satisfied with the arbitration judges who are available. Its members have not asked for the appointment of conciliation commissioners. They claim that it is not necessary to set up further cumbersome machinery to deal with industrial disputes.
During the election campaign, Mr. Scullin said that the Labour party was in favour of a more business-like system of dealing with industrial disputes, and that, if returned to power, it would free the existing legislation from its entangling legalisms. Let us see what we shall have if these conciliation committees or conciliation commissioners are appointed. The conciliation committees will have power to make awards. Under the existing act, conciliation committees cannot make awards, although they can make agreements which, later, may be registered as awards. The bill also provides that the conciliation commissioners may make awards. Under the existing act arbitration judges also may make awards. The position is, therefore, that with this legislation on the statute-book there will be three bodies, each of which may make awards. That is the Government’s business-like way of dealing with industrial matters!
There is another real difficulty which is not dealt with in the bill. In the event of an industrial dispute taking place, who is to decide which of these three bodies is to deal with it? The VicePresident of the Executive Council (Senator Daly) is, temporarily, out of the chamber; I, therefore, invite any of the supporters of the Government to point to a clause in the bill which deals with that question.
– The bill is designed to prevent disputes.
– Apparently Senator Dooley has joined the optimists’ league. He appears to have forgotten that the bill contemplates disputes, because the conciliation commissioners may deal with disputes. Indeed that will be the purpose of their appointment. Since no honorable senator opposite has answered my question, I now put it to the Vice-President of the Executive Council, who has returned. Seeing that under this proposal three different bodies - conciliation committees, conciliation commissioners and arbitration judges - may deal with industrial disputes, the Opposition would like to know who will decide to which body a dispute will be referred?
– I should say that the matter would be determined in a commonsense way; the dispute would be referred to conciliation before going before the arbitration judges. I give an undertaking that, so long as I exercise any control in the matter, disputes will go to conciliation before they are dealt with by the arbitration judges.
Senator Sir GEORGE PEARCE.- I am glad to have that reply from the Minister, for now we know that it will not be the Chief Judge who will determine to which body a dispute will be referred, although he is now the person to make that decision. At present the Chief Judge says that, say Judge Beeby, or Judge Drake-Brockman, will deal with a particular dispute, or that he himself will deal with it. Under the bill one of the three commissioners will decide which body shall deal with a dispute.
– No. I said that, so long as I exercised any control in the matter, disputes would be referred to the conciliation commissioner in the first instance. I do not care who decides which body will deal with disputes. A dispute will go to Judge Beeby or Judge Dethridge, or any other judge, only after conciliation has failed. I say that definitely.
– I asked who is to decide to which body a dispute shall be referred.
– There is no need to decide that question, for a dispute will go to the conciliation commissioner first.
– If that is so, the arbitration judges will deal with no cases in the future.
– Not if a dispute can be settled by conciliation.
-If every case is to go to the conciliation commissioners, against whose decision there is to be no appeal-
– But there is to be an appeal.
Senator Sir GEORGE PEARCE.The conciliation commissioners will deal with all industrial disputes. It is, therefore, clear that the purpose of this bill is to prevent disputes from going to the arbitration judges at all.
– Disputes will not go to the arbitration judges if the conciliation commissioners can settle them.
– If that is the intention of the Government, why does it not say so?
– Who is to fix standard hours ?
Senator Sir GEORGE PEARCE. The Vice President of the Executive Council has not answered my question, but has stated that the Government will refer disputes first to the conciliation commissioners.
Senator Sir GEORGE PEARCE. These so called conciliation commissioners will be conciliators in name only; in fact, they will be arbitrators. Every dispute will be referred, in the first instance, to them.
– What objection is there to that?
– It cuts out the Arbitration Court entirely; the judges will deal with no more cases.
– Excepting such trifling things as the basic wage and standard hours!
– The Government does not propose to dispense altogether with the arbitration judges, for it proposes to use them to deal with appeals. In certain circumstances, there can be an appeal from the conciliation committees, or the conciliation commissioners to judges of the Arbitration Court nothwithstanding that the conciliation commissioners also have arbitral powers. But before there can bean appeal to the arbitration judges, it must be established that there is something in the award or order which is contrary to the public interest. Until that has been established, no industrial dispute can go to an arbitration judge.
– That would be a happy state of affairs.
– The Vice President of the Executive Council (Senator Daly) meets that point by saying that the Government believes in conciliation in preference to arbitration. Does he think that we, on this side, are so obtuse, and the people of the country so blind, that by his merely labelling these men “conciliation commissioners” the people cannot say that they are arbitrators? Nothing can get away from the fact that these men will, in fact, be arbitrators, not conciliators. The reply of the Minister means that, in the opinion of the Government, there shall be no arbitration in this country in the future, excepting by the gentlemen who will be appointed as conciliation commissioners. The Opposition cannot regard such a state of affairs as satisfactory. It is an imputation that the present judges of the Arbitration Court are either incompetent or partial.We believe that they are both competent and impartial. As they are not overworked, there is no need to set up further industrial tribunals. The Government believes that there is some virtue in conciliation commissioners which we on this side have not yet discovered. It claims to have received a mandate in respect of arbitration legislation. It promised wonderful things in industrial legislation. We, on this side, are prepared to allow the Government to appoint conciliation commissioners; but in the interests of the industries of this country, and of fair play all round, we want a real and effective appeal to the Arbitration Court on questions that come before the commissioners. I, therefore, move -
That after the words “ public interest” subsection (1) of proposed new section 31a, the following words “ or substantially prejudice the interests of the employers or employees in the industry “ be inserted.
I repeat that the Opposition has not asked for these conciliation commissioners. It does not want them ; it believes that there is no need for them; but if the Government sees some virtue in them the Opposition wants something really effective in the way of an appeal to the Arbitration Court so that the industries of this country may have a fair chance.
I make a further suggestion to the Vice-President of the Executive Council. I feel sure that honorable senators on this side would be willing to agree to the. deletion of the words “ which in the opinion of the court is likely to affect the public interest “ in sub-section 1. That would leave the ordinary right of appeal, with which the Opposition would be satisfied. As I have already said, we on this side see no necessity for the appointment of conciliation commissioners, but we are prepared to meet the Government in that matter so long as there is an effective right of appeal against the decision of the commissioners.
– I rise early in the debate on this amendment to correct an impression that might conceivably be created by the remarks of the right honorable the Leader of the Opposition (Senator Pearce). I desire to make it perfectly clear from the outset that if Senator Pearce is prepared to pull the legs of people, this party will not assist him to do so. I ask honorable senators is it honest to say “Yes, we agree with the appointment of conciliation commissioners provided there is to be an unqualified right of appeal. Although there may be a tribunal in the first instance to deal with awards, there must also be an appellate tribunal to deal with the same matter, and in every instance that tribunal will make another award?” I submit, with great respect, that, if that was the attitude that honorable senators opposite intended to adopt, the more honest course for them to follow would have been to defeat the bill on the second reading.
It was made perfectly clear to honorable senators during the second-reading debate that the Government reposed greater trust in a tribunal consisting of representatives of the employers and employees, presided over by an independent chairman, meeting around a table, than in another presided over by the litigious gentleman to whom’ reference has already been made. Honorable senators may call that tribunal what they like, conciliation or arbitration.
– I argued against that proposal on the second reading.
– Every amendment introduced by the Government that justified sending the bill into committee was ruthlessly slaughtered during the committee stages of the bill. What was the necessity to send the bill into committee? Upon what other hypothesis could one explain the attitude of the Opposition in sending the bill into committee other than a desire to consider whether we should introduce a system of round-table conferences. The right honorable the Leader of the Opposition said that he opposed round-table conferences. Of course he does. The right honorable gentleman is honest in his conviction against any form of round-table conferences.
– I am not opposed to round-table conferences.
– That is the inference that I draw from the honorable senator’s violent opposition to the Cotton and Flax Bounty Bills which, he claimed, contained an innovation not embodied in any other bill.
– My objections were based on quite different grounds.
– The record contained in Hansard does not lie and it will prove that the objection raised by the right honorable the Leader of the Opposition was that that was an innovation; that the Senate took the full responsibility if it voted for the bill and countenanced that innovation which permitted the establishment of round-table conferences to deal with these matters.
– I have never objected to a round-table conference.
– The industrial authority to be established in each case under the Cotton and Flax Bounty Bills is a body on all fours with this proposed conciliation commission. There is no appeal from it. Despite the utterances of the right honorable the Leader of the Opposition, of Senator Colebatch and Senator McLachlan, a majority of the Senate accepted that industrial authority without the provision of any court of appeal.
– The honorable senator took good care not to point that out to the Senate when the bills were going through.
– The right honorable the Leader of the Opposition has 29 honorable senators behind him.
– He has not.
– It is easier for him to ration his work than it is for me, with my unit of seven. It was the duty of the right honorable gentleman to explain the proposals. Personally, I do not think there is any necessity for a court of appeal. I am strongly of the opinion that the operation of the Flax Bounty Act will convince a good many of the followers of the right honorable senator as to the necessity of setting up conciliation commissioners such as the Government proposes in this bill. I urge honorable senators to consider the open declaration of Senator Pearce against the principle embodied in the Cotton and Flax Bounty Bills. I admire the right honorable senator’s consistency in standing out against the appointment of conciliation commissioners.
– They are arbitrators, not commissioners.
– There is no magic in the term “conciliation”.
– There is a good deal of difference between the two terms.
– I am not much concerned whether they are termed conciliators or arbitrators. The Government desires that industrial disputes shall be settled by conciliation and arbitration, not by conciliation or arbitration. It was pointed out during the second-reading debate that the judges of our Arbitration Court to-day conciliate, and then arbitrate. The defect in that system is that you cannot have conciliation from an authority presided over by a man whose reputation may be absolutely beyond question, but who, by force of circumstances, lives the life of a recluse, and sits in an exalted position, in an atmosphere that does not encourage men to bring out the best that is in them; who develop into plaintiff and defendant, the one fighting to obtain the best that he can, and the other to whittle the advantages down as much as possible. Around a table, where men can talk as men to men, there is a better chance of settling disputes.
I deprecate the attitude adopted by the right honorable the Leader of the Opposition. The acceptance of this proposal would merely be pulling the legs of the workers, and those who believe in conciliation. He is agreeable to the appointment of conciliation commissioners, but desires to appoint over them a tribunal which will eventually decide the issue. I concede the right of correcting existing anomalies, of having a tribunal which may act as a deterrent to an over enthusiastic chairman, who would realize that over him was a tribunal to which an appeal would lie. I have conceded that right in my amendment. Beyond that I am not prepared to go, and I hope that honorable senators will not force the Government into the position of abandoning the whole scheme of conciliation. As I said in my second-reading speech, I believe there is some hope in that system. It is necessary to face facts. There is something radically wrong with the existing system of arbitration when we have so much disrespect of the law. The confidence of the people is becoming less, instead of greater in the existing system. Every day there is a growing antipathy against that system, and it has become accentuated since the position of the judges was made more permanent. I do not say that in any spirit of partisanship. I invite honorable senators to study the records of the number of days that have been lost through industrial turmoil during the past five years, during which our industrial system has operated, and compare it with the figures for the previous five years. The comparison is appalling. If parties stand by this artificial system of wage fixation, and believe that under it industrial peace can be effected, it is about time that we took stock of our present institution, and decided whether there is not some other means whereby we can inaugurate something calculated to inspire the confidence of both the employers and employees.
I am surprised at the attitude of the right honorable the Leader of the ‘Opposition towards this measure generally, but I can quite understand it in view of that which he adopted on the Cotton and Flax Bounty Bills. He then opposed the i principles suggested by the Government, and stood out and out for the maintenance of the existing system, which prevents employers and employees getting together to settle their grievances.
– I listened with close attention to the statement which has just been made by the Vice-President of the Executive Council (Senator Daly). The honorable senator charged the Opposition with being dishonest, in that they voted for the second reading of the bill, and then, when it reached the committee stages, proceeded to slaughter it ruthlessly. I deny that allegation.
– I did not say that the Opposition were dishonest.
– The honorable senator said that members of the Opposition would have been more honest had they voted against the second reading of the measure.
– That is, if they propose to destroy conciliation.
– I challenge the honorable senator’s allegation that members of the Opposition represent only the employing section of the community. It is obvious that we would never have got the majority that we at present have in the Senate if we were returned merely as the representatives of the employers. It is absurd for the Leader of the Government in the Senate to try to divide honorable senators into two sections, and to claim that the members of the Opposition represent only one section of tie community. The truth is that we are endeavouring to represent all interests fairly and squarely, to balance opposing claims, and to determine matters accordingly.
Members of the Opposition agreed to the second reading of the bill because they wanted to make the system of arbitration more workable. They desired to cooperate with the Government in improving our industrial machinery. I acknowledge that there was an undoubted mandate from the people on the occasion of the last election to allow federal arbitration to stay, and to effect some necessary amendments in the machinery. As I interpret the policy speech of the Leader of the Government, the first amendment promised was that the law should be made less penal in its operations.
– On the lines of the Industrial Peace Act.
– I shall come to that later. The Senate has agreed to the deletion of a number of clauses in the existing law which were penal in their operation, and which upset the equanimity of trade unionists.
– The Opposition simply pulled out the clauses under which there was no chance of proving offences.
– We endeavoured to give effect to the mandate that the arbitration law should be made less penal in its operation. The next part of the mandate was that this law should be made more conciliatory in its operation. During the second-reading debate honorable senator after honorable senator declared that this was only a change of name - that it was not conciliation, but was arbitration in another form. As Milton said -
New presbyter is but old priest writ large.
And honorable senators have urged that effect should be given to the mandate of the people ; that this bill should be made more conciliatory, and that the principle of conciliation, as applied to our arbitration machinery, should be put into operation. What is the very essence of conciliation but that the parties should come together, as the Leader of the Senate has said, around a table and discuss matters as man to man, their delibera tions guided, directed, aided, and, in many respects, consummated by a chairman who can only use the strength of his influence or persuasive powers in order to bring them to an agreement? Settlement is achieved by conciliation, agreement, mutual contact, the creation of goodwill, and the confidence which is engendered by the exchange of views around a table, and by cutting out the entangling legalisms that mark proceedings in a court. I support the Minister up to the hilt in anything that tends to promote the use of the machinery of conciliation, or to so enlarge or improve it that the parties may come together; and the Minister may have his heart’s desire. The way to promote goodwill is by means of conciliation, the exchange of views, the creation of a feeling of confidence, and the arriving at agreements. This bill says that its object is to promote goodwill in industry by conciliation and arbitration. But how has the Government gone about it? It does not propose to appoint as chairmen of conciliation committees men with qualifications, men trained to sift evidence or determine the weight or value of it, men who are by their training peculiarly fitted for that kind of work.
– Does the honorable senator refer to lawyers?
– I mean men who are trained as judges, or have the qualifications of judges. I do not say that such men are exclusively the best for this particular purpose, because I should only use them in the last resort. I should have conciliation commissioners, but only as conciliation commissioners, and should appoint men of the strongest personality. During the debate on the second reading we were told how the timber-workers’ strike was settled by a conference between the parties, because a man of outstanding personality, infinite patience and sound judgment, and one who was trusted by both parties, sat in the chair and conducted the negotiations. All parties agreed that the settlement of that particular dispute in its final stages was due to the conciliatory spirit displayed throughout by Sir Robert Gibson. We cannot get Sir Robert Gibsons every day, but there are men in this community who are eminently qualified to play the part of conciliation commissioners. If, however, they are endowed with arbitral powers - if they are given the power to come to a final determination or decision - they cease to be conciliation commissioners, and the essence of the spirit of conciliation disappears from the negotiation. I suggest, nevertheless, that even under the wages board system, and with conciliation committees where the chairman has the right to give a final determination, after the parties sitting around a table have discussed the matters at issue frankly and candidly, more satisfactory results can be obtained than can be secured in the litigious atmosphere of a court. Under this bill wo may have conciliation committees which may be regarded as analagous to the industrial boards of South Australia or the wages boards of Victoria. But when we pass from the conciliation committee to the conciliation commissioner we pass to something which is in its nature an inferior Arbitration Court. If the Leader of the Government in the Senate says that the Government has a mandate to free the arbitration system from “entangling legalisms”, I am ready to help him. If he says that he wants to get rid of the litigious atmosphere of a court, I am equally ready to help him. I want to improve our arbitration machinery, and make its work more satisfactory, so that better results may be obtained by cutting out the antagonistic attitude which the parties assume when they approach the court. The spirit we must cultivate is that of trying to bring the parties together as partners in industry who want to talk things over in a friendly way among themselves. We want to frame our legislation on those lines, but I cannot get out of my mind the conviction that the very method which the Minister is seeking to employ, that of endowing the conciliation commissioners with arbitral powers and giving them a final decision, making them judges, rather than negotiators, will not improve matters. I admit that a hint from a court is often useful in bringing the parties together. Very often if a judge indicates what is running through his mind it may lead to some kind of conciliation between the parties. A nod from the Bench has often led to a settle- ment of litigation. But here we are giving a conciliation commissioner arbitral power, and in doing so, it seems to me, that we are destroying the very spirit we want to create. The Government says that it has been given a mandate to employ more conciliation and have less arbitration; to get rid of the atmosphere of the court, while keeping it in the background as a court of final appeal, and to bring the parties together at a round table with a conciliation commissioner. It is the way to do the job satisfactorily. Hitherto we have not made use of conciliation commissioners to any great extent. The Registrar has been the sole conciliation commissioner. One Registrar, a man of strong personality, has done a lot of useful conciliatory work. I venture to suggest that the best part of the work that has been done by arbitration has been that which has been done in this way by conferences, conciliation and agreement resulting in the filing of agreements in the court. If no agreement could be reached, of course the matter had finally to go to the court.
In response to the arguments about the arbitral power, and the fundamental objections taken by honorable senators .to this particular provision of the bill, the Minister says, “ I shall compromise along the lines of the South Australian code;” which he says has worked amicably and satisfactorily. From what I understand there are in South Australia industrial boards with independent chairmen. I do not know whether the chairman of a board is required to have particular qualifications or whether it is within the competence of the Government to appoint any person.
– The Minister appoints the chairman where the parties cannot agree upon one. The system is very much upon the lines of the wages board system in operation in Victoria.
– I find on examining the Industrial Code of South Australia that there are industrial boards from which there is an unlimited appeal to a higher court; and I understand that in New South Wales, where conciliation commissioners had arbitral powers, there was an appeal to the higher court on the grounds which the Minister has set out in his amendment, namely, “that it is in the public interest.” But I also understand that it has been found extremely difficult in New SouthWales to get to a higher court by way of appeal on this ground.
– Will the honorable senator quote his authority for saying so. His information is distinctly contrary to ray instructions.
– I have been told that what I have said is the case, butit is merely hearsay, and if the Minister asks me for a demonstration of the proof of it, I am unable at this moment to supply it. I submit it merely for what it is worth, but I shall endeavour to get some evidence on the point to give to the Senate. It is said that if unlimited power of appeal is given, there will be an appeal in all cases, and that it will merely mean a duplicating of machinery; that there will be all the trouble of getting a hearing before the conciliation commissioner and then the further trouble of going over the whole ground again before he Arbitration Court. I venture to suggest, however, that the effect of giving an unlimited power of appeal, or of extending the right of appeal in the manner suggested by the Leader of the Opposition (Senator Pearce), would be to make more effective the work of the conciliation commissioners and conciliation committees. The fact that any determination might be appealed against would make the commissioners or committees more careful and more efficient; it would make them see that their determinations were sound in every detail. I think, therefore, it would be conducive to efficiency, that is, of course, if the Senate yields to the solicitations of Senator Daly and endows the conciliation commissioners with arbitral powers. If this compromise is to be arranged; if the matter is to be adjusted on those lines, and we draw upon the South Australian experience, then I say we should adopt in full the South Australian practice, and not restrict the right of appeal. We should then have an inferior tribunal and a higher tribunal, to which there is the right of appeal if there is dissatisfaction at the decision of the lower tribunal. I should like to point out what that will involve.
The CHAIRMAN (Senator Plain).The honorable senator’s time has expired.
– Senator Lawson has argued from the view-point of the lawyer. The Government believes that it is a step in the right direction to clothe conciliation commissioners with arbitral powers, and that by doing so a difficulty will be solved which the Arbitration Court has not been able to solve during the last twelve or eighteen months. Most honorable senators will agree that the present arbitration judges, in the exercise of their jurisdiction, have been responsible for many disputes, and much bitterness and antagonism between employers and employees. Senator Lawson referred to the timber-workers’ dispute. Surely no one was surprised that trouble occurred in that industry following the award which represented a reduction of18s. a week in wages to certain employees and a reversion to48 hours.
– That award did not apply to country workers.
– But that matter did not affect the general position. As might have been expected, the timber-workers went on strike, and the whole of the work in that important industry was dislocated . I spoke on the hustings in support of the action taken by the employees. I am as convinced to-day as I was then, that their action was fully justified. With all respect to the Arbitration Court judges, I suggest that if in the administration of his high office the judge who made the award in the timber industry had shown a more conciliatory spirit towards the timber-workers all concerned would have been satisfied, and we should not have had that protracted industrial struggle resulting in such great economic waste. The railway and tramway employees in New South Wales have also good reason to be dissatisfied. The award relating to the tramway section had expired, and, although the union was knocking at the door of the Arbitration Court for twelve months, it was unable to get a hearing. It is significant that shortly after the political appointment by the Bavin Government of Mr. Cleary, as the new railways commissioner, a plaint was filed before the Arbitration Court, which awarded reduced wages and increased working hours. Nothing was said during the hearing about increased motor transport as one of the factors responsible for decreased earnings on the railway and tramway services. These economic facts were entirely overlooked. Because pf that award, the whole of the service is to-day seething with discontent.
The first legislation relating to arbitration and conciliation was introduced by the Ballance Government in New Zealand. It was amended and improved by the Seddon Government, and later the See Government of New South “Wales introduced legislation on somewhat similar lines. Unfortunately our arbitration system has become the cockpit of political strife, and not infrequently appointments to the judiciary are governed by political considerations. This is the crux of all our industrial troubles. In New South Wales, the Lang Government appointed a number of conciliation boards and commissioners, and the whole system worked peacefully and satisfactorily for some years. I venture to say without fear of successful contradiction that the system evolved by the Lang Ministry did more to prevent industrial upheavals in that State than any legislation that has been passed by either the State or Federal Parliaments.
The late Mr. Justice Higgins, whose reputation for fair-mindedness in industrial jurisdiction no one has dared to impugn, has, in his well-known publication. . t A New Province for Law and Order, emphasized the importance of conciliation between employer and employee for the settlement of industrial disputes. He states -
This article is confined, as I stated in the beginning, to the Federal Court of Conciliation, and to my own actual experience in connexion therewith. But American readers should know that in each of the six Australian States there is some wages board system under the State law or some Industrial or Arbitration Court- Victoria was the first State to adopt a system of wages boards, about 1896; and her example has been more or less followed in Queensland, South Australia, and Tasmania. Western Australia has an Arbitration Court, and New South Wales has a combination of the two systems, wages boards and an Industrial Court. There is no organic connexion between the State system and the Federal system. The object of the wages boards is primarily to prevent sweating or underpayment; the object of the federal court is to preserve or restore industrial peace.
We believe that conciliation boards, vested with arbitral powers, will do much to break down the prejudice that exists with regard to our present arbitration system. No sane person can object to a scheme under which employers and employees meet at a round-table conference for the purpose of arriving, at an amicable settlement of their industrial differences. Mr. Justice Higgins went on to say -
The truth is, I think, that if the men secure the essentials of food, shelter, clothing, &c, they are not so unreasonable as is sometimes supposed. They do not love strikes for the sake of strikes, and the great majority are generally quite willing to submit to reason if they feel that they are reasonably treated.
That expresses the thought of the great mass of the workers. They do not love strikes, and they do not strike without good cause. If conciliation had been adopted in the timber-workers ‘ dispute, there is good reason to believe that that disastrous strike would not have occurred, and the timber-workers and their wives and families would have been saved a great deal of distress and torment. It is all very well for some honorable senators opposite to laugh and jeer at any reference to the sufferings of the timberworkers and their dependants during that long struggle. I speak strongly on this matter, because I feel keenly the position in which those workers were placed at the time, and I have a fairly intimate knowledge of the sufferings endured by many employed in that industry.
The industrial policy of the former Administration led to its downfall. Its proposal was to scrap federal arbitration, and, as subsequent events proved, its policy was emphatically rejected by the people. If honorable senators opposite are now amending this bill with the object of having a “show-down”, the sooner we reach that stage the better. Personally, I have no fear of the consequences. The late Mr. Justice Higgins stated further -
The system of arbitration adopted by the act is based on unionism. Indeed, without unions, it is hard to conceive how arbitration could be worked. It is true that there are methods provided by which the Court can intervene for the preservation of industrial peace, even when its powers are not invoked by any union; ‘but no party can file a plaint for the settlement of a dispute except an “‘organization”, that is to say, a union of employers, or of employees registered under the act.
That is the opinion of a man who had wide experience in industrial arbitration, and concerning whose impartiality no one could raise a doubt.
– The debate on the proposed new section and the amendments moved by the right honorable the Leader of the Opposition (Senator Pearce) should, I think, clarify the position, and indicate the viewpoints of honorable senators on both sides. The measure has, up to the present, suffered many vicissitudes. It has been severely mangled in committee, but we have now reached the stage at which we must decide whether its vital principles shall be accepted in such a form as to prove workable and satisfactory, or whether their effect shall be nullified by provisos and impediments which will prevent the act from functioning effectively. They disclose the real opinion of honorable senators opposite on the subject of conciliation. Their attitude was clearly demonstrated by the Leader of the Opposition (Senator Pearce), when he said that they do not see any necessity to appoint conciliation commissioners. Of course they do not. They do not believe in arbitration, and if they did they would say, as they did not very long ago, that there is no necessity for a federal arbitration system. Itis not very long ago that honorable senators opposite said - and although they are not prepared to say it now, they still believe it - that had they the power they would abolish the federal arbitration system tomorrow. To that extent they are consistent; but they ought to recognize the will of the people of this country. The Labour party did not make federal conciliation and arbitration an issue at the last general election. Honorable senators opposite and their colleagues in another place did, and the people gave a verdict. The result is that the present Government occupies the treasury benches, and with an undoubted mandate from the people to improve the machinery for the settlement of industrial disputes. For many years the Labour party has been firmly convinced that conciliation is the most effective means of settling industrial disputes. Therefore, prominence has been given in this measure to conciliation.
– In clauses 9, 26, and in others. Conciliationis placed before arbitration. The Leader of the Opposition objects that the conciliation commissioners have too much power.
– Too much arbitral power.
– Senator Lawson mentioned cases in ordinary litigation where judges were able, by means of conferences, to effect settlements of long drawn-out disputes without recourse to the courts. Those conferences were successful because of the knowledge that the judge had the power to make an award in the event of the conference not coming to a decision. If conciliation is to succeed it will be because the person who occupies the position of an umpire, and decides between the two sections, has some power to insist that the views that he puts before them shall be respected.
– Such a person is an arbitrator, and not a conciliator.
– It does not matter by what name he is known. Even admitting that he is an arbitrator, is not a decision of an arbitrator likely to be more acceptable than a decision of a judge of the Arbitration Court,in which the Leader of the Opposition professes to believe? The representatives of the employers and employees can meet in conference, and the balance of the power be held by a conciliator, who makes his decision or suggestions and answers both parties as to the justification of such decisions. At present such conditions do not exist. Although the parties have their counsel or representatives to plead their case before the Arbitration Court, the judge after hearing the evidence retires to the austere silence of his chambers and without the assistance of the parties or their representatives propounds his judgment which has a far-reaching effect on the industrial and communal life of the country. It may be that the Leader of the Opposition is correct and that the conciliation commissioners have arbitral powers. If they have, such powers are more likely to achieve industrial peace, which we believe is possible of achievement, than the efforts of a judge working under conditions such as I have mentioned. We were informed that, if the amendment of the Leader of the Opposition giving the right of appeal was accepted, the appointment of conciliation commissioners would be acceptable to the Opposition. Conciliation will be acceptable to the Opposition only if the commissioners are deprived of every modicum of the power which they should possess. If the amendment is carried, the conciliation commissioners as a means of promoting industrial peace, will cease to operate. Let us examine the division of power between the two parties, which will operate in the interests of industrial peace. If this bill is passed the Arbitration Court will still determine such nation-wide questions as the basic wage and the standard hours of industry; conciliation commissioners or committees will then determine the marginal differences for skill and other conditions of employment in order to ensure peace in industry. Their powers are strictly limited because the great question of arbitration standards are beyond their jurisdiction. The commissioners having dealt with the matters that come within their purview, to the satisfaction of both parties, the court extends the right of appeal. The Leader of the Opposition wants more thancorrectional appeal. He wishes the right of appeal to be given in any question substantially prejudicial to the interests of the employers or employees in any industry. If we’ are to accept that principle we might as well abolish conciliation commissioners. The Leader of the Opposition wishes to make an absolute certainty that at an appeal will be made against every decision of the conciliation committee. The amendment reads - “ After section thirty-one a of the principal act the following section is inserted: - 3 Lab. ( 1 ) An award or order of a conciliation commissioner or a conciliation committee shall, unless an appeal against any provision of the award or order has been made, have effect upon the expiration of the time within which such appeal may be made.
In ‘making their awards, the commissioners will either alter conditions in favour of the workers or the employees.
The right of appeal then operates. Is it not obvious that one or other of the parties will appeal? Owing to a reduction in the cost of living, and other circumstances, a conciliation commissioner may reduce wages by ls. a day. The representatives of the workers, knowing that the old award will apply pending the hearing of the appeal, will naturally appeal to the court against the decision of a commissioner. On the other hand, if an award is made which the employers consider to be prejudicial to their interests they also will appeal.
The CHAIRMAN (Senator Plain).The honorable senator has exhausted his time.
.- I have followed with a good deal of interest the debate on this subject. We have been informed that the proposal is to have conciliation committees consisting of employers and employees with an independent chairman. The Commonwealth Arbitration Court can deal only with industrial disputes extending beyond the limits of one State. I have been cited before a court as the representative of a company and in that citation about 3,000 different companies were concerned. Who, therefore, would appoint the employers’ representatives to meet the various companies round a conference table, and who would appoint the employees’ representative? Obviously we come back to the present position. The representatives of the unions involved would be the representative employees, and selected employers would represent the companies. Instead of a round-table conference between the parties involved, there is a dispute that has to be determined by a conciliation commissioner acting as a judge. It is not conciliation at all. In fact, conciliation is impossible with such an unwieldy number. If we want true conciliation, we must have something similar to the industrial law of Germany, where they have committees in practically all the works. Should a dispute arise in a factory in Germany, a conference is called. At one side of the table sit the representatives of the employees, and on the other side of the table the representatives of the employers. There is an independent chairman. As all those at the conference know the conditions obtaining in the i industry there is some chance of an agreement being arrived at. But under the conciliation arrangements proposed in this bill it is not possible for the representatives of the employers and the employees to deal effectively with a dispute in which 3,000 companies are involved. Senator O’Halloran said that the conciliation commissioners would not be authorized to deal with wages and hours of labour.
– I said that they would not deal with standard hours and the basic wage.
– After the basic wage has been fixed, margins are to be agreed upon for skill. If any satisfactory arrangement is to bo arrived at, the parties to the conference must know the conditions obtaining in the industry. Otherwise it is utterly impossible to arrive at a satisfactory settlement. We, therefore, get back to the position that the conciliation commissioner must act as a judge. The representatives of the employers and of the employees can only put their case 10 the commissioner by calling evidence as to the conditions actually obtaining in the industry. That gets us back to where we are to-day. At one time the difficulty was to determine when a dispute existed. That matter was decided by a judge of the High Court, who held that a dispute existed if a plaint had been served. Later there was a provision for the holding of compulsory conferences. I have attended compulsory conferences - r he most futile gatherings I have ever attended in my life. As soon as the judge retired, the representatives just filled in time. They could do no other, for they had no common basis on which to arrive at an agreement. The conferonce always ended by the matter being ref erred back to the judge. No other arrangement was possible.
I am glad that the Leader of the Senate (Senator Daly) said that if honorable senators liked they could call the conciliation commissioners arbitrators, because, after all, they will be arbitrators. There can be no jurisdiction unless a dispute assumes an interstate character. I shall give the Senate one example. A big company in New South Wales wanted to approach the Federal
Arbitration Court, but could not do so, because an interstate dispute did not exist. It, therefore, sought the assistsance of a small company in Tasmania. That made an interstate dispute and the case was taken to the Arbitration Court. The Tasmanian company really had nothing to do with the plaint at all; it was not interested. But it became a party to the dispute to enable the case to reach the Federal Arbitration Court. That kind of thing will continue so long as a dispute must extend beyond the boundaries of one State before the Arbitration Court can deal with it. Unless we give the conciliation commissioners authority to delegate their powers to some persons in a particular district, company, or industry in which the dispute occurs, conciliation must fail. It is impossible in such circumstances for a commissioner to be other than an arbitrator. I shall not say more, excepting that, if we are to make the conciliation commissioners judges, there must be an effective right of appeal. I do not wish to be misunderstood. I do not want the right of appeal to be made too easy. Once a decision has been given, I want the parties to the dispute to know where they stand. The absence of certainty in that connexion has caused much dissatisfaction in industry in the past. I hope that whatever scheme is introduced will provide for some permanency in this direction. If not, confusion will be worse confounded.
Senator Sir HAL COLEBATCH (Western Australia) [6.5]. - I dissociate myself completely and entirely from the statement of the right honorable the Leader of the Opposition (Senator Pearce) that if certain amendments are made to the amendment by the Leader of the Senate (Senator Daly) members on this side will be satisfied. I certainly shall not be satisfied, for in no circumstances am I prepared to allow arbitral powers to be vested in conciliation commissioners. I tell honorable senators that if they pass this measure in its present form, they will destroy the confidence of investors, break down industry, and increase rapidly the numbers of the unemployed. In dealing with this measure I am not concerned with either employers or employees. I am not an employer, and have no connexion with employers. I ask honorable senators to consider how we have drifted. We are now considering to what extent we should allow appeals from the decisions of conciliation commissioners. But we have not yet decided whether we shall give the commissioners any arbitrary powers. That point has been evaded. During the second-reading debate, practically every member on this side of the Senate said that he was opposed to arbitral powers being given to the conciliation commissioners. What has happened since then to change their views? What has occurred to justify the Leader of the Opposition in saying that members on this side are now content to vest arbitral powers in the conciliation commissioners so long as certain rights of appeal are allowed?
– I did not say that.
Senator Sir HAL COLEBATCH.Before the right honorable gentleman resumed his seat, he said that, if the Leader of the Senate would agree to strike out certain words so that the appeal would become general, honorable senators on this side would agree to the appointment of conciliation commissioners with arbitral powers.
– I said that honorable senators would be more satisfied.
– I support the amendment moved by the Leader of the Opposition. But I do so without any belief that it will be of any value. I shall support the amendment only because the Leader of the Government here has stated that if it is insisted on the Government will abandon the measure.
– The honorable senator is not game to support the Government.
Senator Sir HAL COLEBATCH.I certainly do not intend to support the Government. I shall support no government that proposes to break down all the best traditions of British justice by giving judicial powers to persons who are not qualified to exercise them - persons who are to be politically appointed, and are without that protection which the Constitution affords to the judges of our courts. I voted with the Government a little while ago because its Leader said that he was prepared to uphold the principles of the Constitution.
– So I am.
Senator Sir HAL COLEBATCH.The section which this clause proposes to qualify provides that -
No award or order of the court shall be challenged, appealed against, reviewed, quashed, or called in question, or be subject to prohibition, mandamus, or injunction, inany other court on any account whatever.
I should like to know how the Leader of the Senate reconciles that with the provisions of the Constitution.
– Can an appeal be made to the Privy Council without leave from the High Court?
Senator Sir HAL COLEBATCH.I am not talking about the Privy Council.
– The principle is the same.
Senator Sir HAL COLEBATCH.I merely asked the Minister how he could square those words with the Constitution. The High Court has held over and over again - right from the time of Sir Samuel Griffith to the recent decision given in Melbourne - that the right of the High Court in regard to mandamus, prohibitions, or injunctions is something that this Parliament cannot take away.
– We shall come to that clauselater.
Senator SirHAL COLEBATCH.I content myself at this juncture with saying that nothing so far as I know that has happened can in any way alter the opinion I previously expressed, namely, that the conciliation commissioners should be conciliators, and nothing more. It would be opposed to the best interests of all classes of the community if they were given arbitral powers.
– The honorable senator is guided by the views expressed in his party’s caucus.
Senator Sir HAL COLEBATCH.I have nothing to do with any party’s caucus. I have always opposed members of this Senate subjecting themselves to the decisions of any party. I have never attended a party caucus in my life. If the Senate generally had stood by that principle, it would have discharged more effectively than it has done in the past, or seems likely to do in the near future, its functions as a house of review and a protector of the rights of the States.
– If honorable senators generally had adopted that attitude they would have passed more bills than have been passed since the present Government came into office.
– The Senate would not have passed a measure of this kind.
– If honorable senators opposite would accept me as their adviser - and I can foresee that even that may happen in the future - they would do well to accept the amendment of the Leader of the Opposition (Senator Pearce). Personally, I shall be rather pleased if they do accept it, for the simple reason that, as the Opposition is determined to kill this bill by inches, the sooner the torture is over the better for us on this side when we again face the electors, and have to meet the reactionaries from the other side of the chamber on an equal footing. Arbitration will not bring about the millennium. No system of arbitration is a panacea for, all the ills which the workers suffer. We must, however, make the best of the system. Certainly, the less we have to do with arbitration court; and judges, the better for the workers and the community in general. T said just now, by way of interjection, hat the Federal Arbitration Court had created more disputes than it had settled. I stand by that statement. The Arbitration Court has’ been the most disruptive element in the life of this community with which Australia has ever been cursed. There has been nothing but the deepest resentment at its findings, and the most bitter hostility to the system under which it works owing to the flagrant injustices which it has perpetrated on the workers.
Sitting suspended from 6.15 to 8 p.m.
– Before the dinner adjournment I was speaking upon the amendments with which honorable senators opposite are trying to load the bill. On the one hand we have the Leader of the Opposition in the Senate stating that if a certain amendment is granted he will be quite satisfied. On the other Senator Colebatch states that he would not be satisfied if that amendment were carried, but would require further amendments which would have the effect of taking the arbitral powers out of the hands of the proposed conciliation commissioners, and would reduce them almost to nonentities. So that I think that I am justified in saying that between one and another honorable senators opposite desire to destroy the bill. It would have been much more satisfactory had they knocked the measure out at the second reading. It appears to me that the bill will be of little use to the majority of the workers in the way in which it has been mutilated. If it is intended to use the majority possessed by the Opposition to mutilate the measure further I for one should be pleased to see it consigned to the scrap-heap rather than have any more deformities imposed upon its already inequitable structure.
Accusations have been levelled against the employees claiming that they are always too ready to disobey awards, but when we find machinery such as this, specially designed to give all parties a fair deal, deliberately emasculated, is it any wonder that trouble occurs in industry, and that delays and postponements occur that destroy the value of the arbitration system? Every effort of the Government to. remedy the position is being nullified by the chaotic condition into which its machinery is manoeuvred. If any further mutilations occur to. .this measure I shall wipe my hands of it and wish the Opposition joy of their effort.
– Senator Lawson, in the very thoughtful contribution that he made to the debate, indicated that the right of appeal is provided both in the State law of Victoria and that of South Australia. I believe that some honorable senators are under the impression that the industrial arbitration law of New South Wales provides for a right of appeal similar to that which the Minister is willing to concede in respect of the decisions of these committees or commissioners. But in the amending act of 1926, during which year a government having Labour principles was in power, the full right of appeal is provided. Up to that time the chairman or commissioner had arbitral power to decide some things, but since then he has been relegated to the position of merely bringing the parties together. The 1926 amendment provides for an appeal -
From any order, determination, or award of the committee or upon any refusal of the committee to make an order or award an appeal shall He in the prescribed manner, to the commission, upon which appeal the commission may make such orders or awards as in its opinion the committee should have made.
And in section 3 of the 1927 amendment of the New South Wales act, this provision was inserted -
Where a committee fails to make an order or award upon an application or makes an order or award which deals only partially with the application the chairman shall refer the application or the remaining undetermined portion thereof as the case may be to the commission.
So that under no State system of arbitration have we this arbitral power vested in commissioners or chairmen without some rights of appeal being provided for the parties concerned in the dispute. I appeal to the logic and sense of reasoning of the Leader of the Government in the Senate, that in any matters of dispute between individuals, where there are litigants on each side, we have in our own system, and in most of the State systems, a provision for appeal. I believe that it is in respect of an amount exceeding £30 in civil jurisdiction, and the right of appeal is also provided in respect of the decisions of courts of summary jurisdiction. Here, where the employees on the one hand may be deprived in the mass of thousands of pounds, because it is collective bargaining and settlement of disputes, or the employers on the other hand may be mulcted in thousands of pounds, we are leaving the matter to the decision of a chairman. Having regard to the magnitude of the interests involved we at least should preserve the full right of appeal. I do not urge that there should be. the right of appeal over every tin-pot thing that comes along. I believe that the amendment of the right honorable the Leader of the Opposition has that in contemplation. We should be doing wrong if we allowed a matter such as this to go without some redress to either side. I venture to suggest that we should simply be ruining the act if the right of appeal were not given. I subscribe to what has been said regarding the conflict between arbitral and conciliation powers. Judging by the speeches that have been made, I fancy that legislation of this character, where you have the conciliation powers passing along until they become arbitral powers, will eventually bring that reaction to which Senator Rae has referred. We cannot shut our eyes to the fact when the decision goes either one way or the other. As I indicated in my second-reading speech, a good deal of the failure of our arbitration system is due to the fact that one side or the other has absolutely lost confidence in some occupant of the office of arbitrator for the time being.
– Or that the arbitrator has not attempted to gain the confidence of the parties.
– The arbitrator is only human.
– Some are inhuman.
– The honorable senator chooses to put it that way. We have to regard the matter from our own viewpoint. I think that the men charged with office in our Arbitration Court have functioned to the best of their ability and judicial power. Whenever gentlemen in this judicial or quasijudicial office make an award that is disagreeable to one side or the other their value as conciliators has gone. A thing that struck me more than another during my experience of our arbitration system was that one conciliation commissioner had been particularly successful - because he had no arbitral power, and could not inflict any award upon industry.
– When did he succeed ?
– He succeeded in South Australia on one occasion, in a dispute in which Mr. Simpson. Sir Wallace Bruce and others were interested. Had he to make an award the success which attended him would no longer have existed. Senator Rae would be the first, on oneside or the other, to say, “ It is not a fair thing. We have not had a fair deal from this man “, and that man would for all time lose the confidence of that party.
While I am prepared to accept the amendment moved by Senator Pearce,I think that the intrusion of the conciliator into the arbitral field is going to kill his utility as a conciliator. However, that is by the way. The point with which we are dealing is what this right of appeal should be. The Minister has committed his amendment to paper, and I am not enamoured of it. Before there can be an appeal, the court has to come to the conclusion that the matter is likely to affect the public interest - wages, hours and conditions of employment.
– Oh, no. I admit that the clause might have been more happily drafted, but that is not the intention.
– I shall be glad to hear the construction that the Minister puts upon the amendment. So far as I can see the only thing with which we and the court of appeal will be concerned is a matter affecting the public interest. Something may be awarded contrary to the public interest, as happened in one celebrated case about which we have heard a good deal. The parties came together, put it over the arbitrator and secured an award that was absolutely without regard for the public interest. Both parties exacted toll from the consumers and the community generally. Wages went up and the price of the commodity increased, so that both sides to that bargain, an unhappy one from the public point of view, obtained benefits under the award. Surely if the employees in an industry felt that they were aggrieved by the narrow limits or the too far-reaching effects of an award, we should give them some redress. That would help the court along. I fail to see that the amendment by Senator Pearce would lead to a tremendous amount of litigation. If we are going to have appeals we shall have them, one way or the other. If the parties concerned come to an agreement, that is an end to it. But if they do not, and the conciliation commissioner - quasi-arbitrator - makes an award, then there will be an appeal. Do not the words proposed to be inserted by the Leader of the Opposition - “substantially prejudice the interests of employers or employees in the industry” - connote that appeals in regard to t,in-pot things in awards are not to be encouraged, but that it must be a matter substantially prejudicing the interests of employers or employees that the court is called, upon to decide in each case that comes before it? With the precedent of the States to which Senator Lawson has referred so ably, the further precedent I have given and the precedents of New Zealand before us, we cannot do better than follow down the well-trodden line of giving a right of appeal, not limited as in the case of some of the States, or as Senator Pearce has proposed, but unlimited a3 in South Australia. Once the conciliation commissioner throws off the toga of a conciliator and dons the toga of an arbitrator, he loses the confidence of the parties. He is dealing with issues in which thousands and thousands of pounds are at stake. One deputy commissioner told me that he was simply overwhelmed when he thought of the great interests and the amount of money likely to be affected by any determination by him one way or another, although there was but a slight difference between the parties. I forget whether it was 6d. or 9d., but it affected the displacement from one side to the other of some hundreds of thousands of pounds. Surely honorable senators must have in mind the importance of the office they are creating. It is no light matter to create these conciliation committees, and I think some relief at least should be given to both parties to a dispute. It is not something to which the employers alone are entitled. It is something to which both sides are entitled, and I shall certainly support the amendment submitted by Senator Pearce.
– In order to remove any possible misunderstanding as to the intention of the Government, I want to inform honorable senators that the words “ which in the opinion of the court is likely to affect the public interest “ are to apply to the words “ conditions of employment” and not to “wages” or “ hours “. If necessary I shall move to split up the proposed provision to read as follows : “ a wages, b hours, and c conditions of employment “.
– Would there be an appeal in regard to wages?
– Yes. In regard to wages and hours there would be an absolute appeal, but there would be only a qualified appeal in regard to the conditions of employment outside wages or hours. There is, therefore, really not much in the amendment moved by Senator Pearce. Senator McLachlau was misled by the form in which my proposal was originally submitted. I may say at once that it is the intention of the Government to give an absolute right of appeal on matters affecting wages or hours, and that the words “ which in the opinion of the court is likely to affect the public interest” should qualify conditions of employment only. There is certainly an unqualified right of appeal under the wages board system, but a wages board has an unrestricted right to deal with wages or hours, whereas under this bill the conciliation committees will not have that right. On matters of wages and hours there will be an absolute right of appeal, and on any other matter the right of appeal will be limited to any condition of employment which, in the opinion of the court, is likely to affect the public interest.
– Who would lodge an appeal on that ground?
– Any aggrieved party. Ah award may prescribe twelve public holidays when the general order of things is to prescribe ten. There would thus be a clause in the award affecting the public interest.
– Would not that be rather a matter prejudicing the interest of employers or employees than that of the public?
– No. It might pay some employers to close on all the holidays fixed by the award. It must be borne in mind that in arbitration we have to get away from what affects the interests of a particular employer or employee. The system sets up collective bargaining. Some people seem to imagine that industrial courts have been created solely because of a desire to have bodies which can fix rates of wages. As a matter of fact, our industrial courts have been set up, not to fix wages or conditions, qua wages or qua conditions, but as a means to an end; that is, industrial peace. As to the point raised by Senator McLachlan, that once a conciliation commissioner assumes arbitral powers he loses the confidence of both parties, I may point out that since 1907 wages boards have been in operation in South Australia, and there are men now acting as chairmen of those boards who were on the first boards appointed.
– That may be so; but they are gentlemen who have been fulfilling semi-judicial functions.
– That is not so in the case of Mr. Clouston, Mr. Merry, or Mr. Grant Lyons. The last-named is not a solicitor, he has had legal experience, I admit; but the point is that these men have given decisions, some favorable to employers, and some favorable to employees, and what the average employer or employee wants is a chairman who is prepared to give both sides a just deal. The average employer or employee is prepared to play cricket, but he wants the rules of cricket observed, and if confidence has been lost in the arbitration system it is because a union, rightly or wrongly, has very often felt that the wicket has been flooded before it has gone in to bat. That is an impression we have to remove, and it will not be removed so long as we have judges who simply say, “I have a most distasteful task to perform.” They will not argue with the parties as to the nature of the distastefulness. If a man sitting at a table made a statement like that another could have an argument with him, and might possibly convince him or be convinced by him. Although some honorable senators may think that the words suggested to be inserted by Senator Pearce have practically the same meaning as the words suggested by the Government, they have not. They seek to import into the arbitration system a principle which every judge has attempted to avoid. The judge tries to consider a case from the point of view of how an award may affect industry generally, and not any particular industry. If Senator Pearce’s amendment were agreed to it would be taken as an instruction to the judges that the right of appeal is to lie in regard to some such pettyfogging matter as the need for first-aid appliances in the clothing trade, which might have a prejudicial effect upon the employer. The amendment I suggest does not impose any hardship on the employer, and is consistent with our system of arbitration. I ask honorable senators, therefore, to accept it in the amended form which I have already indicated.
– In order to allow Senator Daly to move his amendment, I ask leave temporarily to withdraw my amendment.
Amendment- by leave - temporarily withdrawn.
Amendment (by Senator Daly) - by leave - altered to read as regards subsection 1, as follows: - (1.) An appeal shall lie to the court constituted by the Chief Judge and not less than two other judges against any provision in any award or order of a conciliation commissioner or a conciliation committee affecting -
Senator Sir GEORGE PEARCE (Western Australia) [8.30]. - Senator Daly’s proposal, in its amended form, is a considerable improvement as regards wages and hours. It gives an absolute right of appeal on those two questions ; but the right of appeal with regard to wages does not mean much, because an industrial commissioner will not now be able to do anything to affect the basic wage.
– The amendment now gives the unqualified right of appeal on marginal differences.
Senator Sir GEORGE PEARCE.Yes, and the right of appeal with regard to hours above the minimum fixed by the court.
– Which would include overtime.
– I am not sure what is meant by the qualifying words that the court has to be satisfied that an award or order in respect of the conditions of employment is “not in the public interest.” This, I assume, has to be established by the person or organization which appeals. I should, however, like some information from the Leader of the Senate as to the meaning of the words, “ not in the public interest.” In some occupations the conditions of employment are almost as important as are the wages and hours. They may have a vital effect upon its efficiency. I do not know if piece-work would come within the definition of hours or wages, or whether it would be regarded as a condition of employment.
– It is held to be wages.
Senator Sir GEORGE PEARCE.That may be so. Let us consider the conditions of employment in, say, the pastoral industry. A dispute may arise as to whether sheep are too wet to be shorn, and a decision by a commissioner may have an important effect upon the industry. In most awards, I understand, there is a provision to meet this difficulty. If a conciliation commissioner made an award affecting the shearing of wet sheep, any organization which desired to appeal against it would have to show that the award affected the public interest.
– If the shearing of wet sheep injured the health of employees in the industry, would not that be a matter affecting the public interest?
– I assume it would. On the other hand, if in the view of the pastoralist the decision of the conciliation commissioner was unreasonable, in that it caused undue delay in shearing, involving the pastoralist in loss of time, that also might be regarded as a matter affecting the public interest. I feel sure the Leader of the Senate does not wish the committee to accept those provisions in the dark, and I do not desire to press my amendment if I can be satisfied that the Minister’s proposal meets the situation. I agree that, as now expressed, the provision is a considerable improvement; but I should like to hear the Minister on the point which I have raised.
– No owner would allow wet sheep to be shorn.
Senator Sir GEORGE PEARCE.No doubt the honorable senator is right. But if the conciliation commissioner declared sheep to be wet when they were not wet, the loss involved to the pastoralist concerned might be a serious matter.
. - I am afraid that the point raised by the right honorable the Leader of the Opposition (Senator Pearce) relating to the condition of sheep would not be the subject-matter of appeal. In any case, it would be much simpler for the employers and employees, with the chairman at the head of a table, to discuss this matter among themselves and reach a decision satisfactory to all concerned. This certainly would be better than arguing the question at issue before the court. Matters affecting the public interest would not relate to internal conditions in a particular industry itself. They would include that class of dispute which, if meddled with by industrial courts, would give rise to anomalies in the industry concerned. The class of case that would be covered by this provision would include for example questions affecting piece-work conditions. If a commissioner decided to restrict the output in an industry he would be laying down a principle which previously had not been grafted on to the industrial arbitration system. Such a decision as that, if allowed te stand, might injure the whole structure. But it would immediately form the subject-matter of an appeal and the court would apply the necessary corrective. Conditions peculiar to a particular industry will have to be decided by these industrial commissioners. Unless there is an obvious abuse of power by the commissioner there will be no right of appeal. The Government is anxious ito limit the right of appeal to questions which, if not made the subject-matter of appeal^ might conceivably work a serious injustice, not only to the particular industry concerned, but to industry generally, thereby endangering the whole structure of arbitration. Preference to unionists is another example of a highly contentious question. This would form the subject-matter of appeal on the ground that it affected the public interest, because preference granted in one industry might lead to a demand for an extension of the principle to some other industry.
– Obviously, the intention is to protect the public interest when an agreement is arrived at between employers and employees in any particular industry. It is necessary that the public should he considered. But what I am concerned about is the omission of any provision in this clause or, for that matter, any other clause in the bill, for the public to be heard in the making of awards which may be prejudicial to the public interest.
– The Attorney-General can intervene.
– I am aware of that. Unfortunately, an AttorneyGeneral, representing as he does the Government in office, is too often prone to lose sight of the public interest. I think I can furnish a much better illustration than that cited by the right honorable the Leader of the Opposition (Senator Pearce) who. mentioned the shearing of wet sheep as a matter likely to affect the public interest. I remember some years ago a long drawn-out dispute in New South Wales over the question of day versus night baking of bread. I do not know if the dispute has been definitely settled yet. On that occasion an agreement was reached between the employers and employees to do away with night baking, and I know that certain sections of the public felt distinctly grieved because they were obliged to eat stale instead of fresh bread. This objection applied particularly to week-end baking. If at the time there had been in the law some provision such as is now proposed to include in this bill, possibly some person or organization would have intervened in the public interest. When the public interest is vitally concerned, some one should have the right to intervene on behalf of the general community. Employers and employees have come before an industrial tribunal and reached decisions as to the conditions to be observed in industry. The employers have not been perturbed if an increase in wages or a reduction in hours has been awarded, because the additional cost has been passed on to the public. Instances have arisen in which the public interest was vitally concerned; but no provision existed at that time, neither can I see that there is in this instance, for a representative of the public to intervene. If we are to consider the public interest, there ought to be some provision in the bill for the intervention of an authority representing the public to place the viewpoint of the people before the court.
– We have not the constitutional power to do that. It is usually a case of an industrial dispute between the exploiter and the exploited.
– The Minister made that distinction. Doubtless, his reference to the exploiter and exploited is to the employer and employee.
– I thought the honorable senator suggested that at such conferences the public was exploited, and that is why I used those terms.
– Sometimes it is.
– When both parties are satisfied, neither would be interested in an appeal.
– A decision may be reached prejudicial to the public interest, and against which neither side would appeal; but if the public interest is involved a representative of the people should be able to intervene. I am surprised to learn from the Minister that the Commonwealth has not the constitutional power to insert in this bill a provision permitting the public, through an organization representing the public, to appeal to the court against an award vitally affecting the public interest. Unless that is done I cannot see that the public interest is likely to be safeguarded as it should be when an award is being made.
– How could a representative in a case such as that mentioned by the honorable senator, express the concentrated opinion of the people?
– It would be difficult; but evidence could be taken on behalf of the public. In the day-baking case, the public viewpoint was not expressed at all.
– Opinions were freely expressed through the press.
– Fortunately, what we see in the press is not regarded by either party, and would not be regarded by the honorable senator, as evidence. If we are to provide means to govern the conditions of employment in an industry, and, in doing so, protect the interest of employers and employees, provision should also be made for the court to have regard to the public interest.
– The judicial dictum on the subject of “public interest” is, according to the South Australian Industrial Reports, Volume 7, page 16, as follows : -
If the employer satisfies the court that the award claimed would seriously endanger the interests of a particular industry or would be detrimental to the industry more or less generally, then consideration of the rights of the party has to be qualified by the regard to the public interest.
It has been judicially interpreted that where an award is likely to seriously endanger the interests of a particular industry, or would, more or less, endanger the existence of the industry generally, consideration of the rights of the parties must be deferred in the public interest.
– I urge honorable senators opposite to accept the olive branch held out by the Minister (Senator’ Daly). It seems to me that the proposed amendment is a good one, as the first portion gives either party if aggrieved the opportunity to appeal to the Full Arbitration Court against a decision which it thinks unfair. Honorable senators who appear to be somewhat concerned about the public interest should not forget that an arbitration court judge must to a large extent protect the public interest.
– Who can appeal in the public interest?
– The judge protects the interests of the public.
– But he cannot act until an appeal is lodged.
– An appeal would be made by either party having a grievance. There are many awards which are not in any way detrimental to the public interest. For many years I have been associated with industrial arbitration. At one time we strongly objected to the right of appeal against awards of the court. It was felt that those who had the money could appeal from one court to another, and that there would be great difficulty in reaching a final decision. But for some years now I have been strongly convinced that there should be an opportunity to appeal from a decision of the Arbitration Court, because judges, like all other human beings, sometimes make mistakes. I can recall one case when no appeal court on earth could have upheld the decision then given. I remember another decision, an appeal from which, had it been possible under such a provision as this, would have been very beneficial to a large section of the community. This new clause gives the power for additional evidence to be tendered if necessary. In a recent case the court refused the right to one party to submit additional evidence. There should. be the right of appeal against decisions of the court, and, if it is left to the full Arbitration Court constituted as it is, it should be in the interests of the parties concerned ‘ and of the public. The right of appeal against an award in an important industry is necessary, particularly if it results in men engaged in an industry closely associated with that concerned being thrown out of work. This provision removes many anomalies which now exist.
– I suggest to the Honorary Minister (Senator Barnes) that the conditions to which he referred would not be covered by the amendment now suggested by the Minister (Senator Daly). An appeal can be made to the court against any award or order if the wages, hours or conditions of employment are, in the opinion of the court, likely to affect the public interest. But under this provision there is no power to permit any party to submit additional evidence. L suggest that the comprehensive language employed by the Leader of the Opposition, “ which, in the opinion of the court, substantially prejudices the interest of employers or employees in the industry”, would meet the class of case mentioned by the Honorary Minister. An award may impose conditions objectionable to employers or employees. Mistakes have been made with respect to some matters quite apart from wages, which vitally affect the parties to an award. The interested parties should have some redress before a higher tribunal. If the Minister amends his amendment we could be able to meet the case mentioned by the Honorary Minister. I agree with Senator ‘Duncan that this provision can give the public very little comfort. “When an award is made, the employers consider it only from the viewpoint of their industry, and the employees from the standpoint of wages. I do not know if any machinery can be devised to overcome the difficulty mentioned by Senator Duncan. In the Maritime Industries Bill it was left, I think, to a judge in certifying an award to see that it was not prejudicial to the public interest. I suggest that the condition to which the Minister has referred would not be met by a right of appeal in respect of wages and hours, because the conditions of employment which might affect the public interest would not cover cases such as that to which he referred. If a mistake occurs now it remains until rectified; but if there were a right of appeal, the matter could be adjusted almost immediately. I sympathize with the Minister in his desire to avoid appeals on trivial matters. I suggest that we insert the words “ which in the opinion of the court “. That would leave the decision to the court, and would not mean that an appeal would be granted in every case. I agree that the parties to a dispute are not ‘likely to be greatly concerned with the public interest. They are more likely to be concerned only with their own affairs.
– .We might insert the words “ which in the opinion of the court is a matter of substantial interest
– In the case mentioned by the Assistant Minister, the matter would probably have been settled on the spot if there had been a corrective tribunal. I think that the insertion of the words “which in the opinion of the court” would improve the section.
– I do not like the words “ substantially prejudice “.
– If the words I suggest are inserted the court would have to decide whether it was a matter of substance.
– The inclusion of the words “is a matter of substantial interest “ covers the industry, both particularly and generally. That would leave the court to decide the matter.
– The retention of the words “ public interest “ is of some value as a placard.
Senator Sir GEORGE PEARCE (Western Australia) [9.6]. - I suggest that if the clause is worded to provide that “ any award or order . . . affecting - (a) wages, (b) hours, or (c) any condition, . . . “ the position would be met. The word “ or “, where it twice appears, could be deleted.
I desire to remove a misapprehension in the mind of Senator Colebatch as to my attitude with regard to this clause. I did not say, nor do I say now, that honorable senators on this side are satisfied with it. We do not think that the conciliation commissioners should have arbitral powers at all.
Opposition Senators. - Hear, hear !
– I went on to say that the proposal emanated from the Government, which must accept the responsibility for it. The Opposition accepts no responsibility for the appointment of conciliation commissioners; but if they are appointed we want certain safeguards. The last proposal of the VicePresident of the Executive Council is a distinct improvement; but I do not say that we are satisfied even with it. This is not the Opposition’s scheme. In view of the Minister’s remark, I shall not proceed with the amendment, which has been circulated. I have, however, a further amendment to propose. I therefore move -
That sub-section 2, proposed new section 31a be left out, with a view to insert in lieu thereof the following: - “2. Any such appeal shall be made inthe manner and within the time prescribed by the rules made in accordance with section 43 of this act.”
– I am prepared to accept that.
Amendment agreed to.
Senator Sir GEORGE PEARCE (Western Australia) [9.12]. - I move -
That the following new sub-section be added to proposed new section 31a : - (4.) An award or order of a conciliation commissioner or a conciliation committee shall not have effect until the expiration of the time within which such appeal may be made.
The effect of the amendment would be that the rules of the court would prescribe the time within which an appeal could be made against an award or order. Until that period had elapsed the new award would not take effect. The other proposal that I had intended to make was that the award could not have effect until the appeal had been heard. But the “Vice-President of the Executive Council pointed out that that might have the effect of prolonging the hearing of the appeal by the party interested in retaining the award already given. There is some force in his argument, and, therefore, I shall not move in that direction. But I think that it is necessary to provide that within the time fixed by the rule of the court, which would probably be fourteen days, the new award should not have effect. There would be time for an appeal before effect was given to the new award. I understand that in the South Australian law, and also in the Victorian law, awards made by wages boards do not take effect until they are gazetted. This amendment would have the same effect. The rule of the court would fix the time. The award would operate at the expiration of that time. I hope that the Vice-President of the Executive Council will be prepared to accept my amendment. It appears to me. to be quite reasonable, and would not unduly delay the bringing into effect of the new award.
– Personally, I do not see the necessity for this amendment. There is sufficient power under the rules of the court and the legislation to ensure that a party who desires to appeal against an award will have an early hearing of the matter.
– When would an award come into effect after the passing of this bill?
– It would be the same as an award of the Commonwealth Conciliation and Arbitration Court, and would take effect from a date to be fixed by the conciliation commissioner. The difficulty about the whole thing is that if you insert anything that gives either party encouragement to hold up the award once it is made, that party will take advantage of it.
– But it wouldnot be held up any longer than the time fixed.
– I do not like the idea of leaving it to the rules of court to prescribe these details. If a party to an award desires to appeal, he will do so within at least seven days after the award is made.
-Seven days is rather short for an Australian industry. Take the case of Western Australia.
– I should think that the representatives from Western Australia would receive instructions before they set off. If they could get a seven or fourteen days’ respite, you could take a shade of odds that they would be told to lodge a notice of appeal, so that the matter could be hung up.
– Under my proposal, the notice of appeal would not hang it up.
– The procedure that operates in the other States is: the case goes into court, an award is made, and fourteen days after it comes into effect. I think it would be a pity to insert this amendment. It is not likely that during the period of this new experiment an award will prejudicially affect industry. I do not know of any application for an increase in wages at the present time.
– We are not legislating just for to-day.
– The experience has been that the court does legislate for the time being.
– Accept the amendment and consider it later. We can recommit.
– It seems to me that the whole bill will probably form the subject of a conference between this Senate and another House. To save the time of the Senate, we can, at this stage, allow this amendment to go in with the others. It is not a matter of very great moment, but it destroys the principle of the appeal.
– I should like the Minister to explain how it destroys the principle of the appeal.
– The idea behind the Government’s mind is not to encourage appeals. If we succeed in that we shall do an immense amount of good. During the last twelve months of his occupancy of his office in South Australia, Mr. Deputy President Hewitson has not been occupied in the court for more than one month. But no one can estimate the value of the man’s service to his country. You cannot judge the value of the Canberra fire brigade by its activity nor can you judge the value of an industrial judge by the number of cases that he takes.Rather must you assess his value by the number of cases that he prevents from coming to the court. If our Arbitration Court judges, instead of being in the hurly burly of present day industrial politics, confined themselves to the setting up of a body of principles for the guidance of these conciliation commis sioners we should find that the very happy system that has for years operated in the city of culture, Adelaide, would also operate in the Commonwealth industrial arena. I am prepared to enter my protest against this amendment. As this is the last clause of the bill, which already bears a number of scars, we can let it go and refer it to the conciliation committee of the two Houses, which will, I feel sure, be set up to review the whole matter.
Question - That the proposed new sub-section be inserted (Senator Pearce’s amendment) - put. The committee divided. (Chairman - Senator Plain.)
Majority . . . . 11
Question so resolved in the affirmative.
Amendment agreed to.
Proposed new clause, as amended, agreed to.
Postponed clause 9 -
Section eighteen c of the principal act is repealed, and the following section inserted in its stead: - “18c. - (1.) The Governor-General may appoint conciliation commissioners of such number and upon such terms and conditions as to remuneration and otherwise as he thinks fit. (4.) The Attorney-General may suspend a conciliation commissioner from office for misbehaviour or incapacity. (5.) The Minister shall within seven days after the suspension, if the Parliament is then sitting, or if the Parliament is not then sitting, within seven days after the next meeting of the Parliament, cause to be laid before both Houses of the Parliament a full statement of the grounds of the suspension, and if within sixty days thereafter an address is presented to the Governor-General by the Senate and the House of Representatives praying for the restoration of the conciliation commissioner to office, the conciliation commissioner shall be restored accordingly; but if no such address is so presented the Governor-General may confirm the suspension and declare the office of that conciliation commissioner to be vacant and the office shall thereupon be and become vacant.
Senator Sir HAL COLEBATCH (Western Australia) [9.29]. - I purpose moving a series of amendments, the effect of which will be that, in the case of a conciliation commissioner being suspended, he shall be restored to office unless within sixty days after a full statement of the grounds of suspension have been placed before Parliament, both Houses present to the Governor-General an address praying for his removal from office. I move -
That sub-section (5. ), proposed new subsection18c, be amended to read as follows: - “ (5.) The Minister shall within seven days after the suspension, if the Parliament is then sitting, or if the Parliament is not then sitting, within seven days after the next meeting of the Parliament, cause to be laid before both Houses of the Parliament a full statement of the grounds of the suspension, and unless within sixty days thereafter an address is presented to the Governor-General by the Senate and the House of Representatives praying for the removal of the Conciliation Commissioner from office, the Conciliation Commissioner shall be restored to office; and if such address is so presented the Governor-General may confirm the suspension and declare the office of that Conciliation Commissioner to be vacant and the office shall thereupon be and become vacant.”
Amendment agreed to.
Clause, as amended, agreed to.
Postponed clause 12 -
Section 21aa of the principal act is amended -
Section proposed to be amended - 21aa. - (1.) When an alleged industrial dispute is submitted to the court -
Senator Sir HAL COLEBATCH (Western Australia) [9.33]. - The effect of the clause as it stands is to take away from the High Court the right to interpret the Constitution. I do not think the Senate will agree to do so. I doubt if the proposal has any constitutional validity, and I am a little surprised that we do not find in this bill a little friend that crept into the Wheat Marketing Bill, providing that, in the event of the High Court declaring that any portion of the bill was unconstitutional, the rest of the measure should stand. In any case, I do not think it is our business to pass legislation, knowing that it is unconstitutional, simply with the idea that the High Court may not so declare it.
– I understand that Senator Colebatch desires to restore the provision to its original state, reserving the right of the parties to go to the High Court. That being so, I do not propose toresist the amendment at this stage. I prefer to refer the matter to the conciliation committee that will be set up between the two chambers in regard to this bill.
Amendment (by Senator Sir Hal Colebatch) agreed to -
That paragraphs (c), (e), (f), (g), (h), and (i) be left out.
Clause, as amended, agreed to.
Postponed clause 24 -
Section thirty-one of the principal act is amended -
by inserting in sub-section (1.), after the word “Court” (first occurning), the words “or a conciliation commissioner “ ; and “ (5.) Subject to this act the court shall hear and determine any question stated under the last preceding subsection, and remit the case with its opinion to the conciliation commissioner or conciliation committee (as the case may be) and may make such order as to costs as it thinks fit.”
Section proposed to be amended -
– (1.) No award or order of the court shall be challenged, appealed against, reviewed, quashed, or called in question, or be subject to prohibition mandamus or injunction, in any other court on any account whatever. (2.) The court may, if it thinks fit, in any proceeding before it, at any state and upon such terms as it thinks fit, state a case in writing for the opinion of the High Court upon any question arising in the proceeding which in the opinion of the court is a question of law.
– As sub-clause 5 of this clause is in direct conflict with the decision the committee has reached on clause 12, it will require readjustment at the hands of the draftsman. I think it better, however, to agree to it at this stage with a view to its recommittal later.
Senator Sir HAL COLEBATCH (Western Australia) [9.41].- The real difficulty is created, not by the present bill!, but by the act itself, because it purports to take away the original jurisdiction of the High Court in the matter of prohibition, mandamus or injunction. It is a point that will have to be considered.
– I suggest that we should pass the clause in its present form with an amendment which I shall now move, and it can be recommitted later. I move -
That after paragraph (a) the following new paragraph be inserted - “ (aa) by inserting in sub-section (1.) after the word ‘shall’ the words ‘except as provided in the next succeeding section ‘ “.
Amendment agreed to.
Clause also verbally amended, and, as amended, agreed to.
Postponed clause 26 -
Section thirty-four ofthe principal act is repealed, and the following section inserted in its stead: - “34. - (1.) In order to prevent or settle industrial disputes the Governor-General may appoint, for such period as he thinks proper, conciliation committees consisting of such number of persons as he thinks proper, and of a chairman appointed by him in accordance with sub-section (4.) of this section. (6.) Before appointing the members representative of employers or of organizations of employees, the Governor-General may take into consideration any recommendations made by or on behalf of employers or organizations or employees in relation to such appointments.
Section proposed to be amended.
– (1.) In order to prevent or settle industrial disputes the Chief Judge may appoint for such period as he thinks proper, conciliation committees consisting of such persons as he thinks proper, and of a chairman appointed by him.
Senator Sir GEORGE PEARCE (Western Australia) [9.44]. - Under the present act conciliation committees are appointed by the Chief Judge. Under this clause they are to be appointed by the Governor-General. I cannot see the wisdom of bringing the executive into the realm of industrial disputes, and I think it desirable in the interests of the executive itself to leave the matter to the Chief Judge as in the principal act. The administration of the Arbitration Act is carried out by the Registrar of the Arbitration Court. All the sub-sections of section 34 in the existing act are preferable to those set out in the proposed new section 34 with the exception of subsection 8 which is a good one. To test the opinion of the committee I move -
That the words “ Governor-General “, subsection (1) of proposed new section 34, be left out, with a view to insert in lieu thereof the words “Chief Judge”.
The Registrar is in touch with all these organizations. If the Government’s proposal is adopted, action will be taken in the department of the AttorneyGeneral. It is undesirable to associate the political executive with the administration of this provision.
– I have given careful consideration to this matter since the secondreading debate, and I think I shall be able to convince the honorable senator that the Government’s proposal is the more desirable. Under this bill we have constituted the Chief Judge of the Arbitration Court, with other judges, as am appellate tribunal. If there is one thing about a British court of law which we all value, it is the tradition that nothing shall be done to bring it within the realms of suspicion. If the Chief Judge appoints a person to preside over a conference to deal with matters which may subsequently come before him as a member of the appellate tribunal, the appellate court might not be above suspicion. The Government takes the view that it is better to make the appointment by executive act.
– I can see the force of the Minister’s argument and I shall not press my amendment.
Amendment - by leave - withdrawn.
Senator Sir HAL COLEBATCH (Western Australia) [9.50]. - I move -
That the word “ may”, sub-section 6 of proposed new section 34, be left out, with a view to insert in lieu thereof the word “shall “.
This sub-section enacts that, before appointing the members representative of employers or of organizations of employees, the Governor-General “may” take into consideration any recommendations made on behalf of the employers and employees in relation to such appointments. I want the sub-clause so altered as to make this action mandatory on the part of the Governor-General.
– That would be. an interference with the Royal prerogative. We cannot tell the Governor-General that he “ shall “ do certain things. All that we can say is that he “may” do them.
– I hope he will at all events. We all know that in actual practice the AttorneyGeneral will take action under this clause, and I should like to tell him that he “ shall “ do certain things.
Clause agreed to.
Postponed clause 32 agreed to.
Title agreed to.
Bill reported with amendments.
Bill received from the House of Representatives and (on motion by Senator Daly) read a first time.
Bill received from the House of Representatives and (on motion by Senator Daly) read a first time.
Sales Tax - Protests from South Australia - Hop Industry.
Motion (by Senator Daly) proposed -
That the Senate do now adjourn.
– I do not wish to delay the Senate at this late hour, after a particularly heavy day; but there is one matter that I feel I must bring under the notice of the Leader of the Senate (Senator Daly). I have been inundated with telegrams to-day from persons and firms in my own State and also other States protesting against the early operation of the sales tax. The purport of the telegrams will be conveyed to honorable senators if I read the following, which I have received from the Taxpayers Association of South Australia: -
Proposal operate sales tax 1st August thrown trade into confusion. Local taxation office has no information. No copies bill yet in Adelaide. Newspaper information slight. Only reasonable course Government make tax operate fourteen days after passing legislation. Strongly appeal you urge Government adopt this course. Despite Prime Minister’s assurance to contrary, operation of tax involves many difficulties.
The above is typical of over twenty telegrams which reached me to-day. I do not wish to embarrass the Government, because I know how difficult it has been to prepare this legislation; but in view of the fact that the tax is to operate from tomorrow morning, it is extremely desirable that some information should be forwarded to themost distant States advising business firms of the measures to he taken. At present they do not know how .to act.
– They will have a month within which to make out their returns.
– But they do not know what they will have to do or what they will have to charge for the goods which they will he selling to-morrow morning. I suggest that the Minister take some steps to forward a communication to the people of South Australia, perhaps in the form of a press telegram, giving them information to guide them in their business transactions.
– I also intended to direct attention to this matter. I, too, have received a number of telegrams from different parts of the State of South Australia, including the following: -
Have wired Prime Minister following: - “At largely attended meetings members of Hardware Trade Association, South Australian Warehousemens Association, Wholesale Grocers Association, Electrical Importers and Suppliers Association, and Motor Accessories Association, strongly urge and request that the date and operation of sales tax be postponed until 1st September as no information whatever available in this State in regard to incidence of tax, and that officer be deputed in Adelaide to explain the bill to merchants.
Senator 0’Halloran interjected, while Senator McLachlan was speaking, that business firms would have a month within which to make out their first returns.
– That is so. The tax operates from to-morrow morning and yet all the information which business firms in South Australia have has been gleaned from telegrams which have appeared in the newspapers. In all previous taxation proposals the people have been informed definitely of the amount of tax they would be called upon to pay.
If the South Australian traders do not know upon which items the sales tax is to be imposed, they will be in a dilemma. Immediately upon receipt of this telegram, I interviewed the Prime Minister (Mr. Scullin) who informed me that he proposes to make a full state ment, which will be telegraphed for publication in the States.
I strongly protest against this method of doing business. The sales tax is to take effect from tomorrow; but those upon whom it is to be imposed have not yet been advised, other than through the columns of the newspapers, as to the goods to which it is to apply, or with details concerning the impost. I urge the Government to give the fullest information at the earliest possible moment, in order to remove the grave doubts which exist among the commercial community.
– I did not think for a moment that the sales tax would be raised at this juncture, otherwise I should have read, for the information of the Senate, certain communications and telegrams which I have received concerning the proposed sewing machine bounty. As honorable senators opposite have quoted telegrams which they have received, I bring under the notice of the Senate the following telegram, addressed to me from New Norfolk, Tasmania -
Hop industry Derwent Valley most serious. Returned soldiers employers and employees affected. Strongly urge immediate federal assistance.
That telegram was despatched by the secretary of the Derwent Valley Returned Soldiers Association. That communication should be of interest to those great patriots opposite who profess to have so much regard for the returned soldiers. These unfortunate men desire that some protection should be afforded to the hop industry, in which they are engaged, to enable them to fight against the big I.X.L. combine in Tasmania, established by the late Sir Henry Jones, who made a vast fortune out of sweated nigger labour in the Malay States. The attitude of honorable senators representing South Australia, suggests that there must be something wrong with the press service in that State.
– I am not blaming the press.
– According to the statements made in this chamber from time to time by Senator Chapman, there is an absence of water, timber and coal in
South Australia. Generally, the State is in a bad way. The people in that State now want information concerning the sales tax, and I think it is about time they pat up a “to let” board on the foreshore after having heard the wire of Senator McLachlan.
– Order! The honorable senator must not refer to the utterances of another honorable senator in that way.
– What have I done?
– When I call an honorable senator to order-
– I refuse to be treated as a Sunday School kid.
– The honorable senator will be treated as are all other honorable senators in accordance with the Standing Orders. As I may have been under a misapprehension I ask the honorable senator to repeat the statement to which I objected.
– I referred to a wire received by Senator McLachlan.
– I thought the honorable senator used the word “ whine.” It was my mistake.
– I was merely showing that the views of those engaged in the hop-growing industry in Tasmania have as much right to be heard, as have the representatives of wealthy corporations who are making such a noise concerning the sales tax.
Senator Sir JOHN NEWLANDS (South Australia) [10.5]. -I endorse the remarks of Senator McLachlan concerning the necessity to supply more definite information regarding the proposed sales tax which, according to the telegrams I have received, is to come into operation to-morrow. The least that honorable senators can do who receive such telegrams is to bring them under the notice of the Senate. I do not intend to delay honorable senators at this hour nor to insult the State which I have the honour to represent by saying that it lags behind other States. There are many people throughout the Commonwealth who are naturally interested in the proposed tax, and who wish to know officially, not only the rate to be imposed, but on what goods it is to be collected.
I trust that the Prime Minister will give at least fourteen days’ notice, as suggested in one of the telegrams, before the tax becomes operative.
– The representations made by honorable senators will be brought under the notice of the Right Honorable the Prime Minister (Mr. Scullin). It is very difficult to understand why South Australian manufacturers and wholesale merchants should find themselves in a dilemma because agood deal of publicity has been given to the proposed sales tax, and to the items which are to be exempt. I have not seen the Prime Minister on the subject recently, but I understand from the remarks of Senator Chapman that the Prime Minister is to make available to-day a statement for publication in the press to-morrow. If any precis has been prepared I shall undertake to supply honorable senators with copies so that they may acquaint their constituents with the exact nature of the tax.
– Could it be telegraphed to departmental officers?
– I shall immediately interview the Prime Minister to see if the information can be available in time for inclusion in the press to-morrow morning.
– Will it also be made available in Western Australia?
– I presume that if it has not already been sent, it will be sent to all the States. I can assure honorable senators that the Government will do all it can to prevent inconvenience to the commercial community in all States.
– Will full information be supplied ?
– Yes, as far as practicable. It is a new form of taxation, and as Senator McLachlan was gracious enough to say, it is not altogether the fault of the Government that fuller information has not been available. Some early date had to be fixed, and all I can do is to promise as far as possible to meet the convenience of those, shall I say, unfortunate people who have to pay the tax.
Question resolved in the affirmative.
Senate adjourned at 10.10 p.m.
Cite as: Australia, Senate, Debates, 31 July 1930, viewed 22 October 2017, <http://historichansard.net/senate/1930/19300731_senate_12_126/>.