Senate
24 July 1930

12th Parliament · 1st Session

  1. Senate
  2. 12th Parliament
  3. 1930

The President (Senator the Hon. W. Kingsmill) took the chair at 11 a.m., and read prayers.

page 4550

WHEAT MARKETING BILL

SenatorCARROLL (Western Australia) [11.3] - by leave - I hold in my hand a copy of the Canberra Times, of to-day’s date, containing a report of an interview which a representative of that newspaper had yesterday with the Minister for Markets (Mr. Parker Moloney), relating to the Wheat Marketing Bill which was defeated in the Senate recently. The Minister referred to a statement made by Mr. H. K. Nock, the general president of the Farmers and Settlers’ Association of New South Wales, and, if he is correctly reported in the Canberra Times, made use of these words : -

Mr. Nock, is of course, at a disadvantage, as one outside Parliament, when he undertakes to show what transpired in the Senate prior to the taking of the vote. He states, for instance, that two Western Australian Senators, who, by the way, are members of the Country Party, asked that the vote be postponed over the week-end in order to allow them to receive from their organizations instructions regarding an important amendment. [ agreed to accept rather than see the bill defeated. Apart altogether from the reflection which such a statement casts upon those two members, I may point out that when I accepted that amendment. I had their definite assurance that they would support the bill without any suggestion that they required further time.

All I can say is that if the Minister is correctly reported he made an incorrect statement concerning the interview which took place between himself and me. I did not see Mr. Moloney during the passage of the Wheat Marketing bill through another place, or while it was being discussed in the Senate, except casually for a few minutes. About a quarter of an hour before the division was taken in the Senate I received a message that I was wanted outside the Chamber. I went outaide and there met two or three gentlemen, including Mr. P. Stewart, the honorable member for Wimmera and Dr. Earle Page. I was then informed that the Government was willing to concede something on the bill. While I was in con-

Tersation with the gentlemen referred to, Mr. Moloney joined the group. I thanked him for the concession which I was informed he was willing to make, but distinctly told him that I required time for consideration. I also mentioned that Senator Lynch had paired against the bill in its original form and it was only fair that time should be allowed for him to reconsider his position, if he so desired. That was all that took place between Mr. Moloney and myself, and yet he is reported in the Canberra Times as having said that he had a definite assurance of support for the bill from “those two members,” which could only refer to Senator Johnston and myself. To that statement I give a most emphatic denial.

Senator E B JOHNSTON:
Western Australia

– by leave - I was present during the latter part of the interview which Senator Carroll has related. When I was called out Senator Carroll was talking with Mr. Stewart and Dr. Earle Page in the King’s Hall. The Minister for Markets (Mr. Parker Moloney) was also there. Apparently they had been discussing the Wheat Marketing Bill. I told them plainly and clearly that I intended to vote against it on the second reading, and that if the Government intended to alter its attitude, a definite statement should be made in the Senate and time given to me and others concerned to consider the matter. Some one said that the Leader of the Senate, who had introduced the bill, could only speak in reply to the debate, but I pointed out that Senator Barnes had not yet spoken so that if the Government was prepared to do something to assist the wheat growers and relieve the States he would be able to make an announcement. The debate could then be adjourned to give us an opportunity to consider the Government’s proposals. When Mr. Parker Moloney went away it was not clear to me what action was intended, but as he was leaving I said - “Let there be no misunderstanding. Unless such a course is pursued I intend to vote against the second reading of the bill.” I did so.

page 4551

QUESTION

FEDERAL CAPITAL

Building By-laws.

Senator H E ELLIOTT:
VICTORIA · NAT

asked the Minister representing the Minister for Home Affairs, upon notice -

  1. Will the Minister make inquiry as to whether an application has been made on behalf of a tenant or occupier of premises at Civic Centre, Canberra, for permission to erect a shed of a temporary nature on property occupied by him?
  2. What is the size of the proposed shed?
  3. Is it not a fact that in Melbourne similar erections may be permitted so long as the temporary buildings are isolated?
  4. What is the reason whysuch sheds cannot be erected at Civic Centre?
  5. What is the estimated cost of such shed - (a) in galvanized iron; (b) in material as prescribed by the by-laws or regulations applicable to the Territory?
  6. In view of the temporary nature of the proposed structure, why cannot the by-laws he amended so as to permit of such temporary erections ? 7.Does the Minister recognize that such restrictions must prevent the progress of Canberra ?
  7. Have tenants already erected such sheds of timber and galvanized iron?
  8. Is the fact that certain tenants have complied with the demands of the authorities in this respect good grounds for refusing reasonable requests by others?
  9. Has the Home Affairs Department directed, or does it propose to direct, the removal of suchsheds by such tenants?
  10. What loss will be inflicted on such tenants by such directions, if any?
  11. What is the reason for inflicting such a loss upon the tenants?
Senator BARNES:
Assistant Minister assisting the Minister for Works and Railways · VICTORIA · ALP

– Inquiries are being made and the honorable senator will be advised as soon as possible.

page 4552

QUESTION

DUNTROON MILITARY COLLEGE

Training of Graduates in India.

Senator H E ELLIOTT:
VICTORIA · NAT

asked the Minister representing the Minister for Defence, upon notice -

  1. Is it a fact that (contrary to the usual practice) no more Duntroon graduates will be sent to India for training?
  2. If so. what is the reason for this change in policy?
  3. Is it not a fact that experience in India has in the past proved of exceptional value to the cadets fortunate enough to secure nomination for this privilege?
  4. What (if any) is the course of training proposed as an alternative to the course in India?
  5. Will the new instructions also apply to army officers selected for a commission at the Quetta Staff College?
Senator BARNES:
ALP

– The information is being obtained and a reply will be furnished to the honorable senator as early as possible.

page 4552

QUESTION

OFFICIAL HISTORY OF THE WAR

Senator H E ELLIOTT:
VICTORIA · NAT

asked the Minister representing the Minister for Defence, upon notice -

  1. ls it a fact that the Government has instructed the official historian, Mr. C.E. W. Bean, to hasten the completion of his work of producing the Australian Official History of the War?
  2. If so, what was the reason for this step?
  3. ls it the opinion of the Government that Mr. Bean was going slow in his duties?
  4. Does the Government realize fully that this history, carefully compiled from all available sources and verified from the experiences of many survivors of the events related, may be a priceless record, and may, if fully and correctly narrated, so aid the evolution of tactics that many lives may be saved in future wars; and that the opportunity for this may be lost by reason of such instructions ?
Senator BARNES:
ALP

– The information is being obtained and a reply will be furnished as soon as possible.

page 4552

QUESTION

DEFENCE DEPARTMENT

Salary of Secretary

Senator H E ELLIOTT:
VICTORIA · NAT

asked the Minister representing the Minister for Defence, upon notice -

  1. What salary is the secretary of the Department of Defence receiving?
  2. What was the amount of the salary of his predecessor in office?
  3. ls it a fact that an agreement was made by the right honorable W. M. Hughes, or by hie Cabinet, on behalf of the Commonwealth, with Mr. Shepherd that his salary should never be less than £2,000 per annum or otherwise fixing his remuneration ?
  4. Will the Minister lay such agreement (if any) on the table of the Senate?
  5. Is it possible for the Public Service Board, or for the Cabinet or Parliament (a) to reclassify this position so as to provide that the salary paid to Mr. Trumble for this office can be reverted to; (b) to declare this office unnecessary; (c) to redistribute the duties of the office amongst the military officers who are now being rationed so as to save the salary altogether?
Senator BARNES:
ALP

– Inquiries will be made and a reply will be furnished to the honorable senator as soon as possible.

page 4552

QUESTION

VICTORIA BARRACKS, SYDNEY

Senator DUNN:
NEW SOUTH WALES

asked the Minister representing the Minister for Defence. upon notice -

  1. Is it the intention of the Federal Government to hand over to the citizens of New South Wales, through the Paddington Municipal Council, the site now known as the Victoria Barracks?
  2. Is it a fact that the site, in its present unproductive state, is detrimental to the progress of the eastern sections of the city of Sydney?
  3. Is it the intention of the Government to convert the barracks into a military college; if so, when?
Senator BARNES:
ALP

– The information is being obtained and a reply will be furnished as soon as possible.

page 4553

CONCILIATION AND ARBITRATION BILL

Second Reading

Debate resumed from 23rd July (vide page 4490) on motion by Senator Daly -

That the bill be now read a second time.

Senator REID:
Queensland

– When the debate was adjourned last night I was discussing the provision which repeals the section requiring a judge of the Arbitration Court when making an award, to pay regard to the economic conditions of industry generally, and I stated that judges would be totally unfit for their position unless they did this. We know what happened to Judge Lukin, who was courageous enough to face the facts. It was unfortunate that the unpleasant task fell to his lot, but there is not the slightest doubt that the commonsense of the people of Australia endorses all that lie said on the occasion referred to. As a result of his action in speaking plainly about the economic position of Australia he has been removed from the Arbitration Court Bench. I should like to know what is in the mind of the Government. If judges do not pay some regard to the economic effect of awards, industries generally will drift into chaotic condition, and the last state of this country will bo worse than tho first. In the coal-mining industry the employees were for many years in a unique position. During the war the then Prime Minister, the Right Honorable W. M. Hughes, brought into being a tribunal that concentrated its energies upon the solution of industrial difficulties associated with the coal trade in Australia. While high prices ruled that tribunal was justified in granting liberal rates of pay, and contentment reigned in the ranks of the coal-miners. Then came days of depression, and the necessity for a revision of awards. Rates of wages were reduced. Immediately there was an outcry from the miners, and a resultant turmoil which more or less paralysed industry in this country. A ‘similar state of affairs occurred when Judge Lukin promulgated his award for the timberworkers’ industry. In an endeavour to restore order out of chaos, a royal commission was appointed to inquire into the coal industry, and it exhaustively investigated the problem from all angles. I shall read an extract or two from the report of that commission to illustrate the difficulties confronting any arbitration tribunal. These comments ave very informative to the community generally. The report states -

From 101.4 to 192S, there were 4,500 strikes in the; coal-mining industry of New South Wales, causing a loss of more than 8,000,000 working days. From January .1919, to Mardi 1929, .there’ was a loss of over £6,000,000 in wages. Taking again the period 1914-1928. the total working days lost on account of strikes in all industries other than mining amounted to 3,000,000 working days, compared with 1 1,570,000 in mining, of which 8,000,000 occurred in coal-mining. The total number of employees engaged in mining was 25,000 in contrast to 350,000 in other industries.

On that point the commission made the following comment : -

Viewed from another stand-point, the average annual number of days lost per employee through industrial disputes has been 27 in the coal-mining as compared with only one in non-min in» industries. And the average number of days lost per employee in thu coal-mining industry in the period covered by the figures was approximately 400, equivalent to an average of nearly two years’ work in fifteen for all the workmen employed. In addition, it must always be remembered that whereas in the non-mining industries the average number of days worked, after allowing for unemployment, holidays and intermittency was about 240 over the above period, the corresponding actual average in the coalmining industry was only 203 days.

Then follows this summary of the causes of industrial unrest in the coal industry -

  1. The over-capacity of the existing mines in respect of development and equipment on the one hu ml and of nien on the other.
  2. Competition from oil fuel and coal produced ahead.
  3. Excessive price.
  4. Uncertainty as to ability to fulfil orders.
  5. .Industrial disturbances and the hostility of the relationship between employer and employee.

One’ must recognize the difficulty of this or any other Parliament that is called upon to evolve a measure whereby pence may be brought into industry. I have previously stated in this chamber that for some years our pastoralists have been carrying on their business at a loss. That opinion was refuted by a number of honorable senators, including Senator Barnes, who, incidentally, is president of the Australian Workers Union. Recent disclosures proved that I was correct, and only the other week Judge Dethridge, hi revising the award for the industry, decreed that there should be a 20 per cent, reduction in wages. I submit that there is no class in the community better able to bear that reduction than the shearers. The Australian Workers Union has frequently been praised for the manner in which its members obey awards. I point out that this is the first time that members of that organization have suffered a reduction in wages. Previously everything has been in their favour. Like good children, they got their own way and built up a splendid organization. To-day, some of those good children are becoming restless, and the executive of the Australian Workers Union has so far not had the courage to declare precisely where it stands in reference to the recent reduction of 20 per cent, in shearers’ wages. Meanwhile its members have continued work, more or less in harmonious relations with their employers. But an honorable senator actively associated with the Australian Workers Union recently presided over a meeting of men engaged in the shearing industry and incited them to rebel against the new award.

Senator Daly:

– Will the honorable senator tell us what all this has to do with the bill before the Senate?

Senator REID:

– We are endeavouring to solve the difficulties associated with industry. The Leader of the Government (Senator Daly) knows as well as I do that those difficulties exist. No one has a better knowledge of the working of arbitration than he. I have had a practical experience in arbitration matters, but Senator Daly has had a very lengthy and extensive legal association with the settlement of industrial disputes. He is an expert in industrial law. I am directing attention to the perplexities of the layman when dealing with this matter. I give way to no man in my desire to bring about peace in industry. Most of my life has been spent iti industrial and social movements and I would give the greater part of my remaining life if I could satisfactorily effect a solution of the trouble. After Judge Dethridge had promulgated his award, Senator Rae presided at a meeting at the Sydney Trades Hall, and the Sydney Morning Herald reports that the following resolutions were carried : -

That this meeting of rank and file workers in the pastoral industry congratulate the pastoral workers of Moree on their fight against, the Dethridge award, and we pledge ourselvesto assist them in every way. Further, we call upon the A.W.TJ. executive to repudiate the Dethridge award and to stand behind their members morally and financially. That a rankandfile committee of seven be elected from this meeting to arrange an interview with the A.W.TJ. executive and to communicate with pastoral workers in country districts and with those of other States, to acquaint them of our attitude.

I have known Senator Rae for over 30 years. He is one of the oldest members of the Australian Workers Union, and he has done much to build up the organization. He now occupies a responsible position in this Senate, and actively participates in the framing of the laws of the country. Parliament has decided that industrial disputes shall be settled by a Court of Conciliation and Arbitration. That court, because of our depressed economic circumstances, has decreed that there should be a reduction in wages. Senator Rae, one of .our responsible law makers, promptly incites the members of his organization to defy the law, the court and the Parliament. That is another of the difficulties with which we are faced - the activities of the extremist ‘ element in industry. The Australian Workers Union well knows the evils resulting from the machinations of that section.

Senator Barnes:

– The honorable senator was not very concerned about the subject when the owners of the coal mines broke the law.

Senator REID:

– Why did not the honorable senator’s Government take action if it considered that the mineowners were breaking the law? Why did it not prosecute them? I admitthat there are people on both sides who militate against the success of arbitration. There are ultra-conservatives and extreme radicals, and unfortunately the extremist section in the unions causes most of the trouble.

Senator Dunn:

– The honorable senator incited industrialists to strike 25 years ago in Queensland.

Senator REID:

– I have done good work in Queensland for trade unionism - more than the honorable senator will ever do.

Senator Dunn:

– You invited those men to rebel against the law.

The PRESIDENT (Senator the Hon W Kingsmill:
WESTERN AUSTRALIA

– Order! Honorable senators must not address one another across this chamber.

Senator REID:

– Trade unions are Strongly opposed to the principle of piecework. I admit that in the old days piecework was a dangerous thing, because it could not be controlled. I know from personal experience the objectionable sweating that then took place through the operation of piece-work, with harmful effect to the workers themselves. To-day, a legal agreement may be entered into that will prevent the evils that previously existed, and enable the workers to obtain a very satisfactory wage. It is very noticeable that piece-workers do not go on strike ; that they are not led astray by malcontents. They know what they will earn and what the community will in turn receive from their efforts. I shall quote a few examples of the advantage of piece-work as given by the Treasurer of New South Wales, Mr. Stevens - “ In the railway repair shops at Clyde,” he said, “where in one particular section some 200 men are engaged rebuilding Compo D wagons under a bonus system which was brought into operation as recently as three months ago, the results have been remarkable. The award rate which these men are entitled to draw is £5 15s. per week of 44 hours. The Commissioners guaranteed the award rate to them, and the men do not work more than 44 hours. By applying the bonus system to their tasks, however, the time has been cut down from 53 hours to anything from 20 to 30 hours, and the men average, instead of £5 15s., well over £8 per week, and the Commissioners and the public materially benefited. The cost of repairing the waggons has been reduced by 25 per cent., and the men are earning about 50 per cent. more. The record of the State Industrial Undertaking at Walsh Island has become a classic in the annuals of the application of piece-work to industry. Here was an undertaking that was about to be scrapped. Previously unable to expand, it has in the short space of eighteen months doubled its staff, and increased its turnover by nearly £400,000, turned a loss of £42,000 into a profit of £80,000, and set up in the Commonwealth a new industry - that of the construction of steel carriages. Under the day labour system the works were able to produce only one steel railway carriage per week, and lost a few hundred pounds per carriage. After three months of piece-work six carriages were produced per week at a price showing a profit of a few hundred pounds per carriage. And, what is more, the cost of manufacture of each steel carriage was reduced by about £.1,200. The Railway Department and the general body of taxpayers benefited accordingly.”

Honorable senators know the conditions which existed at Walsh Island before the introduction of piece-work. Had the authorities there stuck to the methods generally advocated by unions, Walsh Island would have had to close down. But the introduction of piece-work enabled men who otherwise would have been thrown out of work to earn good money. In addition, the Railways Department and the community generally have benefited. The experience of Walsh Island is an example of the beneficial effects of piece-work properly safeguarded.

Senator Daly:

– As it has been found impracticable to adopt piece-work under arbitration, why not try conciliation %

Senator REID:

– They had arbitration in New South Wales, for they were working under a State award. It should be remembered that these beneficial results of piece-work had been obtained in a government institution. The conciliatory spirit of the Railways Commissioners in offering a bonus has enabled men who, at day work rates were paid only £5 15s. a week, to earn £8 a week. I should like to ask the Vice-President of the Executive Council (Senator Daly) whether he believes in piece-work.

Senator Daly:

– Not under the arbitration system.

Senator REID:

– What objection can there be to the system if it benefits the workers ?

Senator Daly:

– The Standing Orders will not permit me to reply to the honorable senator now.

Senator REID:

– I feel sure that if the Leader of the Senate were to express his honest opinion he would state his belief in piece-work. But if he did so, he would not retain his present position very long.

In this bill the Government is attempting to give absolute preference to unionists. I have always opposed that principle. When the policy of preference to unionists was first introduced by -the Fisher Government it gave rise to some hot words between Mr. Fisher and myself, although we were close friends. In a democratic country no preference should ‘ be given to any one section at the expense of tlie community generally. I make an exception in the case of returned soldiers; they earned their right to ‘ preference by the sacrifices they made. If preference to unionists had not already been provided for by legislation, I doubt whether the returned soldiers would have asked for preference. As an instance of the evil effects of preference to unionists I desire to quote an extract from the Industrial and Mining Standard -

It appears that the Queensland branch of the Stoermens and Packers Union repeatedly refused admission to its ranks of returned soldiers. When the attention of the Minister was drawn to the position, he said point-blank l.l mt the- Government intended to open the hooks of the unions. He thought that the system which laid it down that u man must first bc in a union before he could get u job, and in which action was then taken to prevent his getting into the union, thus precluding his earning a livelihood, was a pernicious one. The law was clear on this point. Preference granted under section 57 of the State Arbitration Act could only apply so long as the union permitted any worker coming within the scope nf an award to become a member of the union upon payment of an entrance fee not exceeding ~m., and upon a written application, without a ballot or other election. The Storemens and Packers Union appeared to be acting contrary to that provision, and in his opinion thu union had lost its right and status to enjoy any preference whatever, and it was open to any employers to employ whomever he liked in that trade or calling, without any further reference to the union. Furthermore, if the union intended to continue the policy to which objection had been taken he could assure it that the Government would sec that other action was taken to ensure that its policy was not flouted.

Preference to unionists in such circumstances means that not only men who have conscientious objections to joining unions, but also men who are willing to join them, may find the doors closed against them. I realize that the more intense the struggle for existence, the greater the likelihood of unions doing things which in normal times they would not do. Nevertheless, by no legislative enactment should we deprive any person in Australia nf equal opportunities with his fellows to obtain work for which he is qualified. Some trade unions charge such fees for admission that it takes almost a week’s wages to pay them.

The secret ballot, was intended to protect the members of unions, but, unfor- tunately, it was misused by their leaders Were it not for the irregularities which have become associated with the use of the system in this connexion, the secret ballot is a valuable safeguard against industrial strife, for before an industrial upheaval can be brought about, causing misery and suffering to many innocent persons, a secret ballot of members must be held. Unfortunately, the extremists in the Labour movement have made the secret ballot ineffective. When, during the timber workers’ strike, which brought untold suffering to thousands, a secret ballot was ordered, Mr. “ Jock “ Garden, speaking in the Domain at Sydney, urged the timber-workers to burn their ballotpapers and also an effigy of Judge Lukin. In defiance of the Government, a secret ballot was not taken. Numbers of the timber-workers are still suffering because of the foolishness of their leaders on that occasion. That experience, and the knowledge that union leaders generally will do their utmost to make the secret ballot ineffective, forces me to the conclusion; that wo- are better without any legislative provision for a secret ballot. Nothing is more demoralizing than that the law should be defied and constitutional government ridiculed. Eather than encourage in Australia such defiance of the law as occurs almost daily in the United States of America, I am willing to vote for the abolition of the secret ballot, although I am a firm believer, in it. Weave better without a thing which encourages a defiance of law and order.

This bill is, perhaps, the most onesided and class-ridden measure ever introduced into an Australian Parliament-

Senator Daly:

– In that respect is it worse- than the Transport Workers Act?

Senator REID:

– The Transport Workers Act cannot be compared with this bill; it protected the workers.

Senator Daly:

– That was an abuse of our trade and commerce powers.

Senator Sir George Pearce:

– It brought about peace on the waterfront.

Senator REID:

– This sentimental twaddle in which the Minister and his supporters indulge-

The PRESIDENT (Senator the Hon W Kingsmill:

– It is not quite in order to describe as “ twaddle “ the utterances of an honorable senator.

Senator REID:

– I withdraw the statement. I shall refer to the silly talk we have heard concerning the Transport Workers Act. All the previous Government did was to pass the Transport Workers Act to provide for the issue of licences to those desiring to work on the waterfront. The system has not been injurious to any one, but honorable senators opposite are strongly opposed to it.

The PRESIDENT:

– I ask the honorable senator to confine his remarks to the subject matter of the bill.

Senator REID:

– I was merely replying to a point raised by the Minister. Under this measure the Government proposes to give conciliation commissioners the powers of a judge. The persons to be appointed will not possess any legal training or experience in determining the value of evidence, and, if I may be permitted to say so, will possibly possess very little education. The Minister twitted the Leader of the Opposition (Senator Pearce), when he referred to the conciliation commissioners, by saying that instead of conciliators possessing legal training they would have common sense. I should like to remind the Minister that common sense can be acquired only as a result of a comprehensive knowledge of life, and these powers should be exercised only by educated and unbiased persons, who should also possess a judicial temperament. If conciliation commissioners are selected from the rank and file of trades unionism they will naturally be prejudiced.

Senator Daly:

– The honorable senator will agree that the university has not a monopoly of common sense.

Senator REID:

– I know that. If I were asked to select from honorable senators supporting the Government, one possessing the most common sense, I should have no hesitation in selecting the Minister (Senator Daly), because of his legal training, bis extensive experience, and his ability to carefully analyse any evidence that was placed before him.

Senator DUNCAN-HUGHES:
SOUTH AUSTRALIA · UAP

– Not too much flattery.

Senator REID:

– It is not flattery.

Senator Sir GEORGE PEARCE:
WESTERN AUSTRALIA · ALP; NAT from 1917; UAP from 1931

– It is common sense !

Senator REID:

– The Minister has had extensive experience in many spheres, but the principal qualification of Senator Dunn seems to be that of making a noise. I am strongly opposed to the appointment of conciliators, under the system proposed, because I believe it will result in more trouble and industrial disturbances than we have had in the past. Action in this direction is being taken in response to the requests of the Trades Hall and union leaders. I am sure that the Government would not have included this provision if it had not been instructed to do so by the Trades Hall authorities. These people will see that the conciliation commissioners are members oftrade union organizations.

Senator Daly:

– The Trades Hall will see nothing of the kind.

Senator REID:

– I know they will. When the Lang Government in New South Wales introduced a similar scheme, it was stated that certain trade unionists were running over eachother in the Government offices in the effort to secure appointments to such positions. It would be interesting to know how many conciliation commissioners in New South Wales, not directly associated with trade unionism, were appointed.

Senator Sir George Pearce:

– The Labor Daily gave a list of the men to be appointed.

Senator REID:

– I saw that list, andI believe that only one was not closely associated with union matters. Naturally, such men are biased. I do not blame them for seeking appointment. In considering this matter we cannot overlook what has happened in New South Wales, where pressure was undoubtedly exercised by trade union officials. We have also to remember that New South Wales has very strong Labour representation in this Parliament. This is one of the most dangerous provisions in the bill, which, if enacted, will have a serious effect upon our arbitration system and upon the whole community. If our arbitration system is to function more effectively than it has in the past, conciliation commissioners must be fair-minded men. I am totally opposed to giving these commissioners the powers of an arbitration court judge.

Senator Daly:

– Is it. not possible to appoint a judge who supports Labour principles?

Senator REID:

– Possibly; but, unfortunately for the Labour party, there are not many who support such principles who are qualified to occupy such important positions. The selection of impartial men would be an experiment, but I am strongly opposed to conciliation commissioners having the same powers as a judge.

Senator Daly:

– The chairmen of wages boards have these powers.

Senator REID:

– Wages boards are constituted by an equal number of representatives from both sides, with an independent chairman, and come to a decision on the evidence submitted by those engaged in the industry.

Senator Daly:

– Is the honorable senator in favour of applying the wages board principle to this bill?

Senator REID:

– I have no objection; but that, I contend, is a different matter. I shall do all I can to improve this measure, and if provision can be made for the introduction of a wages board system similar to that which has been successfully working in Victoria I shall not object.

Senator Sir George Pearce:

– But not superimposed upon the Arbitration Court.

Senator REID:

– No. The working of such boards should not interfere with the court. Under the present system, the Arbitration Court judge has power to appoint conciliation commissioners. Mr. A. M. Stewart, as Registrar of the Commonwealth Arbitration Court, did more to prevent and settle industrial disputes by means of conciliation than any other individual. He utilized his ability to the utmost degree to settle disputes before they reached the court. In doing so, he saved the expenditure of thousands of pounds, and at the same time conferred a great benefit not only upon the workersbut upon the whole community. I favour conciliation. I prefer a wages board system working in conjunction with the Arbitration Court, judicial decisions are necessary in the interests of the parties concerned and of the whole community. Under the system proposed it will be possible for certain persons to fix wages to the detriment of the community. We know of instances in which the parties came together and agreed on certain conditions, which although satis factory to the parties, were detrimental to the general community. It is not right to give conciliators such power because the consumers as well as the employers and employees have to be considered. In committee I shall endeavour to improve some of the provisions in the bill and to make it a measure which can be satisfactorily administered. In view of our present economic conditions the greatest possible care must be exercised in framing industrial legislation. Notwithstanding the serious position with which pastoralists are confronted, members of the Australian Workers Union declined for a time to work under a recent award of the court. They seem to disregard, the fact that production of wool at present prices is unprofitable, and that many pastoralists are working on overdrafts, which they find it impossible to reduce. I believe that every honorable senator is anxious to assist in solving our industrial problems, and to make this a measure which will be acceptable to employers and employees, . and operate also in the interests of the whole of the people.

Senator Sir HAL COLEBATCH (Western Australia) [11.56]. - I welcome the assurance of the honorable senator who has just resumed his seat that Australia is a democratic country, since I fear that during recent months I have been steadily drifting towards the conviction that we live under a very complete despotism. I assure Senator Dunn that those honorable senators who were elected in opposition to the Labour policy have no wish that the Government should, as he suggests, come cap in hand for our support of the measures which it introduces. But we do expect that the members and supporters of the Government in this chamber will appeal for our support of the proposals which it submits by sound reasoning. I assure Senator Dunn that if in substitution for sound reasoning we simply have threats and challenges, such threats and challenges will fall entirely on deaf ears. I frankly confess that I have never at any time had complete faith in compulsory arbitration. After more than a quarter of a century’s experience, I venture to affirm that the system has entirely and completely failed from whatever view-point we choose to study it. If we look at it from the workers’ view-point I think it could easily be demonstrated that one of two things has happened. Either the worker as a result of arbitration has received something that he would have got without it - something that the natural conditions of the industry of the country would have assured to him, just as they have been given to workers in other parts of the world - and I venture to say that in many cases arbitration has given to the workers higher wages and improved conditions long after they were entitled to them. Either that has happened or, in some special cases arbitration has given to the workers wages and conditions to which they were not entitled, at the expense, not only of the industry concerned, but of the community as a whole. Generally speaking, I defy any one to say that arbitration has been of advantage to the worker - that it has given or c’ould give more than the ordinary economic conditions of the country justified; And in support of that contention I point to other countries that have not this system in operation, and in which the workers are. as well off as they are in this country, if, indeed, they are not better off. So far as employers in industry are concerned, arbitration has hurt them, not so much because of the wages awarded, but because of the hampering conditions attached to awards and because of the uncertainty that has always existed.’ From the point of view of the general community I think it would be easy to demonstrate that arbitration is one of the things that have held Australia back. During the last 25 years I am quite sure no other single factor has operated more in deterring the investment of capital in Australia than arbitration has done. The would-be investor overseas, watching the course of events here, has, rightly or wrongly, conceived the idea that arbitration means “ Heads you win ; tails I lose “ ; that when the court of arbitration gives improved wages or shorter hours to the employees, the award is readily accepted, but when, in response to the economic requirements of industry, the court awards lower wages or longer hours, the awards are always resisted. In proof of that contention, we had the timber strike, which was a lamentable calamity to every one, and to-day we have an award given by the Arbitration Court in regard to the pastoral industry, and the one thing we have not yet had is a straight-out declaration by the Australian Workers Union that its members must abide by it, or that the award is accepted. I am not arguing whether investors overseas are right or wrong in forming the idea that the arbitration system of Australia is entirely one-sided. For present purposes it may be entirely wrong, but everything possible is being done- to justify it.

Yesterday, Senator Dunn asked a question in regard to the attitude of the Chamber of Manufactures in New South Wales towards the budget proposals of the present Government, and the suggestion behind the question was, that because that chamber had applauded certain of these proposals, they must be good, and it would, therefore, be absurd for honorable senators to oppose them. Following the honorable senator’s line of argument, are we to conclude that if we are to adopt the view of the Chamber of Manufactures of New South Wales in regard to some of the proposals of the Government, we should adopt its view in. regard to other proposals of the Government? If so, I’ remind Senator Dunn that the attitude of the Chamber of Manufactures of New South Wales towards this bill is certainly, hostile, recognizing, as it does, that arbitration as now practised in Australia is one of the chief drawbacks to. the development of the country. Although, because of our natural resources and the quality of our people, Australia ought to be in a very much better position than most if not all other countries - for many years past our products have been realizing wonderful prices - its position is really worse than that of any other country. Does it not suggest that there must be something entirely wrong with our industrial methods ? Politically, arbitration has been disastrous to this country. Election after election has been fought on this one issue, almost to the utter neglect of important issues on which the welfare of the people ultimately depends. Even during the present session, when Australia is in the greatest trouble, and although at the beginning of the session, we were asked to sink all party differences and work together for the interests of Australia, we find that there is no time for the representatives of the people to consider the tariff proposals of the Government, or any proposals designed to help the country out of its present difficulty, but there is time to waste by months of talk on purely party political proposals. To this country, therefore, from a political point of view, arbitration has been entirely disastrous. I do not think that after our quarter of a century’s experience of arbitration there is a single country outside Australia , which has shown the least disposition to adopt this method of settling industrial disputes.

If the rejection of the bill now before us would abolish arbitration, I should urge the Senate to vote against the second reading. My impression is that that would be the wiser course for us to adopt, but I recognize that the rejection of the bill will not abolish arbitration, and that some honorable senators, who still have a lingering faith in the efficacy of arbitration, apparently take up the attitude that in committee they can help to improve the bill, and so improve the existing system. They are welcome to try to do it, but, personally, it is a task that I should approach without the least enthusiasm or expectation of achieving any good result.

There are two features of this measure which it is peculiarly the . duty of the Senate to examine. The first is that, as a chamber representing the States, we should inquire whether the bill is in compliance with the letter and spirit of the Constitution, particularly as it affects the rights of the States. The second is that it behoves us to ask ourselves whether it is a bill in accordance with the highesttraditions of British justice. It is only from those two points that I intend to address the Senate for a few minutes.

Clause 24 of the bill proposes to amend section 3 J of the principal act. That section provides -

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.

Senator Sir Hal Colebatch.

Although it is now sixteen years since thai provision of the Conciliation and Arbitration Act was declared by the High Court to be ultra vires, it has remained in the act ever since. In the Commonwealth Law Reports, volume 18, page 55, occur these words, in the judgment on the Brisbane Tramways case -

Jurisdiction to issue prohibition to a tribunal acting without or in excess of its jurisdiction is in its nature original and not appellate.

The meaning of that is, of course, that the power comes under section 75 of the Constitution, which says: “In all matters … in which a writ or mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, the High Court shall have original jurisdiction”; and that it does not come under section 73 of the Constitution, which says : “ The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals.” In the Tramways case, the then Chief Justice of the High Court, Sir Samuel Griffith, said -

Thu Coin mon wealth Arbitration Court, as I will call it, is a creature of Parliament under the powers conferred in paragraph xxxv. of section 51 of the Constitution, by which the Parliament is authorized to make laws with regard to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. We start with the governing principle that the powers of the Parliament are limited by the Constitution, and that any act done under the- asserted authority of a Commonwealth law may be impeached in appropriate proceedings on the ground that it was done in excess of the authority conferred by the Constitution. Parliament cannot take away this right by any form of words or any device.

Then we have the final judgment, which still stands -

But the President is undoubtedly, in any view of thu case, an officer of the Commonwealth, so that quacumque via, the case is within section 75 (v.) Thu jurisdiction conferred by that section cun not, of course, lie taken away by the Commonwealth Parliament.

The same point arose during the present, year in the Coal case, and is reported in Commonwealth Law Reports, volume 42, part 4, which says -

Held, by the whole court that the Legislature has not attempted to confer upon the Court of Conciliation and Arbitration judicial power conclusively to determine the matter upon which its jurisdiction depends.

Held, by Gavan Duffy, Rich, Starke and Dixon, J.J., that upon proceedings under section 21aa and in prohibition section 31 of the Commonwealth Conciliation and Arbitration Act, 1904-1028, does not operate to give validity to an award made without jurisdiction.

Further on it was held in the second of the Coal cases as follows: -

The Commonwealth Court of Conciliation and Arbitration has not jurisdiction over an alleged industrial dispute extending beyond l hi; limits of any one State unless it is real nml genuine; and the question whether it is real and genuine, upon proceedings in prohibition, is to be determined by the High Court of Australia on its own independent view of the evidence.

The power of the High Court to interpret the Constitution was sought to be taken away when the Commonwealth Conciliation and Arbitration Act. was first passed, and in the Brisbane Tramway case, section 31 was held to be ultra vires. Yet this bill not only proposes to re-enact that section ; it proposes also to say that no award or order of a conciliation commissioner 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. It thus goes further than the section which the High Court has already held to be ultra vires.

Clause 12 of the bill amends section 21aa of the act. The purpose is to take away entirely from the High Court the decision iii regard to constitutional issues. . If honorable senators will look at the memorandum that accompanies the bill they will sec that in. each case the words “ High Court “ are struck out and the word “ Court “ substituted, meaning that the decision of such an issue as arose in the Coal case- whether it was a dispute extending beyond the limits of one State, a question which the High Court has held can be determined only by the High Court - is to be removed from the High Court altogether and given to a single judge of the Arbitration Court, even if we are for the moment to assume that under the amendment to section 31, ti conciliation commissioner will not decide the issue entirely off his own bat.

During the sittings of the Boy al Commission on the Constitution, this question of judicial powers was examined very r 1.02:1 closely, and the feeling held by all the commissioners was that the position was not entirely satisfactory, because the right of appeal to the High Court was not sufficiently clear and definite. It was, therefore, unanimously recommended by the commissioners that an addition should be made to section 73 of the Constitution, which permits the Parliament to limit the right of appeal to the High Court, so that no exception or regulation prescribed by the Parliament should prevent the High Court - from hearing and determining any appeal, if the High Court shall see fit to grant special leave of appeal, from any justice or justices of the High Court or from any other federal court, or from any court exercising federal jurisdiction.

The unanimous recommendation of thecommission was that the right of the High Court to grant leave to appeal should be absolute, and that Parliament should not have it within its power to take away from any citizen of the Commonwealth the right of appeal to the High Court, if the High Court said that such right should be given. Included in. the members of the royal commission were two representatives of Labour, and I venture to say that the movement has no more able and trusted men than Mr. Duffy and Mr. Mcnamara. It may be of .interest to honorable senators to know that these two gentlemen not only concurred in the recommendation of the commission, but they also added the following paragraph on their own responsibility: ‘ , . . -While accepting the recommendations in this report as a means of rectifying some of the troubles associated with the* present system of administering justice in the Commonwealth, we do not think that they go far enough, and we think that the better plan would be to make the High Court of Australia the final court .of appeal in all cases. This would not only make it possible to arrange a procedure as to cases through the State Courts without any doubt as to the High Court’s jurisdiction in cases involving the interpretation of the Constitution, but would also be in line with Australian sentiment and would assist in making this country self-contained as to its law-making and its judicial decisions. In our opinion Australia should be capable of producing a judiciary as high in standard as - any other parts of the British Empire.

These two representatives of Labour were just as emphatic as any other members of the commission that Parliament should. not take away the right of every citizen to appeal to the High Court if the High Court thought such an appeal proper.

I now come to the second point upon which I wish to say a few words. Does this bill uphold the best traditions of British justice? I venture to say that we shall all be doing a great wrong to the people of Australia if we enact legislation which in any way interferes with those traditions. I assume that as citizens of the British Empire, we all regard these traditions of British justice as one of our most valued heritages, traditions which are not equalled anywhere else in the world. I do not invite honorable senators to consider ‘this subject from the narrow point of self-interest; but even if we did, would it not be obvious that we should be acting foolishly if we approved of legislation which would destroy the confident belief of investors that we, as a British community, still hold sacred those traditions of British justice to which I have referred?

I am sorry that my friend Senator Dunn is not at the moment in his place, because he gave us valuable leading on this question last night when he told us that, under a previous Government in New South Wales, he occupied a position, not perhaps so responsible as that of a conciliation commissioner under this bill, but at all events of some importance. Then the honorable senator went On to say that directly there was a change of government - the Lang Government was defeated and the Bavin Government came into office - he was summarily dismissed. He was given a month’s salary in lieu of notice, and was kicked out, virtually at. a few moments’ notice - dismissed as might be a dishonest servant girl who was discovered concealing silver spoons in her silk stockings. I hasten to add that I do not imply, by this simile, that I can visualize the honorable senator in such an act as that. But the point I wish to put to him is this: When the whirligig of time brings its revenges and when again we see the Labour party in power in New South Wales, the gentleman who succeeded Senator Dunn in his responsible position - a gentleman probably lacking his qualification for impartiality, discretion, and wisdom - will be, in his turn, because he was appointed by the present Government, kicked out at a moment’s notice. Probably he will get his month’s salary in lieu of notice and be treated like the dishonest servant girl to whom I have alluded.

My objection to this bill is that it deliberately contemplates and provides for exactly the same course of action in connexion with the appointment of conciliation commissioners. It contemplates political appointments and consequently dismissals for political reasons. It suggests that no man shall be made a conciliation commissioner unless, in the opinion of the Government which appoints him, he is likely to serve the particular intention it has in view. It contemplates that when a new government comes into office it will make a clean sweep of the whole of the conciliation commissioners and appoint men who, it thinks, will be more likely to administer industrial affairs in line with its industrial policy.

I direct the attention of honorable senators to page 10 of the memorandum accompanying the bill, which indicates how and in what way this measure will affect the act. Sub-section 4 of proposed new section 18c reads -

The Attorney-General may suspend a conciliation commissioner from office for misbehaviour or incapacity. ,

The framers of the bill have in this subsection used two words, “ misbehaviour or incapacity”, which are to be found in paragraph 2 of section 72 of the Constitution dealing with the appointment of judges. That section provides that judges so appointed - ‘

  1. Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same, session, praying for such removal on the ground of proved misbehaviour or incapacity,

As I have shown, the words “misbehaviour or incapacity” are included in the proposed new sub-section under which the Attorney-General may suspend a conciliation commissioner from office, but the word “proved” is omitted. The procedure to be adopted is outlined in proposed new sub-section 5, which reads -

The Minister shall within 7 days after the suspension, if the Parliament is then sitting, .or if the Parliament is not then sitting, within 7 days after the next meeting of the Parliament, cause to be laid before both Houses of Parliament a full statement of the grounds of the suspension and if within 00 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 GovernorGeneral may confirm the suspension and declare the office of that conciliation commissioner to be vacant and the office shall thereupon be and become vacant.

It will be seen from the language of this proposed new sub-section that the procedure to be adopted is entirely different from that outlined in section 72 of the Constitution relating to the removal from office of justices of the High Court or other courts created by the Parliament. Under the Constitution, before the GovernorGeneral can act, both Houses. of the Parliament must first carry a resolution affirming “ proved misbehaviour or incapacity”; but in the case of a conciliation commissioner, the AttorneyGeneral must find merely, not prove, misbehaviour or incapacity. Thereupon the conciliation commissioner will be suspended, and he may only be re-instated if both Houses of the Parliament affirm that he should be. It must be remembered also that the Attorney-General will act with the full knowledge that the majority in one House, at least, will be behind him.

Senator Daly:

– Does the honorable member suggest that the Attorney-General would not have to prove misbehaviour or incapacity on the part’ of a conciliation commissioner?

Senator Sir HAL COLEBATCH:

– I am not suggesting anything. I am merely reading the proposed new “sub-section dealing with this matter, to show the extremity to which the Government is prepared to go. It is intended to clothe these officials with extraordinary power to make awards affecting the livelihood of hundreds of people, and yet, apparently, they are to have no protection whatever. They will be liable to dismissal by the executive of the day without any prospect of reinstatement. The whole of our traditions of British justice rest on the fact that a judge shall be independent of the executive, and that he cannot be removed without the greatest safeguards that it is possible to put into any political system. I challenge the Leader of the Senate to dispute my contention.

Senator Daly:

– I was wondering if the honorable senator proposes to spoil a good argument by extravagant statements.

Senator Sir HAL COLEBATCH:

– I am not concerned with the Minister’s view on that point. Our Constitution is singularly free from any protection of personal rights and liberties excepting the guarantees against political interference with the judiciary.

In passing, I may say that I am pleased to note that 6ne valued privilege or right, which was taken from certain people by the previous Administration, has been restored by the present Government by ordinances. I refer to the right, in certain circumstances, of trial by jury. Section 80 of the Constitution clearly lays it down that any person charged on indictment with an offence is entitled to trial by jury. The previous Government took away that right in certain circumstances, and the present Ministry restored . it. I wish this Government were as anxious in all matters to preserve the constitutional rights of the people. Although these fundamental rights and liberties are not set out in our Constitution as definitely, perhaps, as they are in the Constitutions of most other countries, one right is unassailable. It is the privilege of any Australian citizen who thinks he is being wronged to have access to the High Court. I challenge the Leader of the Senate to deny that this bill will take away this privilege.

Senator Daly:

– I invite the honorable senator to study the most recent judgment of the High Court in the waterside workers’ case.

Senator Sir HAL COLEBATCH.That decision does not interfere with the right of the High Court to decide these constitutional questions.

Senator Daly:

– I shall have an opportunity to discuss that matter with the honorable senator when the bill is in committee.

Senator Sir HAL COLEBATCH.And I invite the Minister to do so at that stage. I go further, and say it is inherent in our Constitution that the High Court shall be the only interpreter of the

Constitution, and even if, at any time, some chance decision of that tribunal may seem to affect the position, I . still maintain that the Constitution never intended anything else and that ths people of Australia are entitled to the fulfilment of that clear intention. There are many features of the bill concerning which I may have something to say at the committee stage. I regard these two points, the preservation of the Constitution and the preservation of the traditions of British justice, as being of such higher importance than any of the others that I refrain from discussing those other matters at this stage.

Senator LAWSON:
Victoria

– Many principles which are dealt with in the bill can probably more fittingly be discussed in detail in committee. I do not, therefore, propose to make a complete analysis of the proposals of the Government at this stage. My intention is to offer a few general observations on the position as it appears to me at the moment. In the reprint of the existing arbitration law, as: it will be when amended by this legislation, it is shown that the chief objects of .the act’ arc, inter alia, “ To promote good-will in industry by conciliation and arbitration “. I think I am right in saying that we have all been disappointed and disillusioned by the effect of our industrial legislation. I n as one of those who looked to the settlement of industrial disputes by arbitration rather than by force as the happy solution of our industrial troubles. I hoped we should enjoy peace in industry as the outcome of a sense of co-partnership and goodwill between employers and employees. In the post-war period of reconstruction, when I occupied a position in the public life in the State of Victoria, I made numerous speeches emphasizing the absolute necessity for the promotion of goodwill in industry, and for a sense of co-partnership between the parties engaged in production;. and, from time to time, I appealed to the civil population in Victoria to endeavour to transfer the comradeship of the trenches to the civil and industrial life of the community. I felt that during that period of re-construction we were confronted with difficult and complex problems, and that any solution of the difficulties with which wc were faced could be obtained only by a concentration of effort, a unity of purpose, a mutual respect among the people engaged in industry, and by a feeling of confidence that would disarm suspicion and drive away lurking mistrust from the minds of employees. I believed that it was essential to endeavour to substitute friendliness and co-operation for scepticism and ill will.

I gave a considerable amount of time and thought to the propagation of such a gospel, and there appeared to be responses in certain quarters. It has been my experience that when you get into close contact with the leaders of unionism, or with its rank and file, and deal with them as individual units, you invariably find that they are most reasonably minded, and anxious to do the fair and right thing. But somehow or other, I do not know whether it is due to mob psychology or what is the reason, when it becomes necessary to negotiate with those people as an organization bad feeling seems to obtrude itself into the consideration of things and passions become inflamed, so that it is impossible to consider even the slightest industrial trouble that, may arise in a spirit of sweet reasonableness. Because of some strange and weird influence, I know not its source, reason seems to. give way to passion, hatred is let loose, and the country becomes involved in one of those horrible industrial disputes that disgrace our community life, hamper our development and progress, and substitute the worst of passions and ill will for the basic principle of goodwill that is so essential if this conn try is to realize its destiny and if we are to surmount the troubles with which we are now faced. And so I am reminded of the lines’ of Pope -

For forms of government let fools contest; What e’er is best administer’d is best:

I am not much concerned with the machinery of conciliation and arbitration provided that the people who are operating it are guided .by principles of goodwill, and mutual trust and confidence in one another. I look for that from both sides. We are still in a period of reconstruction and re-adjustment. We thought when the clash of arms had ceased, and we had to make the change from war .to peace conditions, that our problems were almost insoluble. We 11:ive drifted on through an era of luxury and over-spending to one of economic difficulty and depression, and we have still ro find a solution for the ills that afflict the community and the economic life of the country. If we can solve the problems of industrial strife by promoting goodwill in industry and substituting confidence and mutual regard for suspicion and mistrust, we shall make u very definite step forward in the development and well-being of the community.

Victoria, the Slate that I represent in this chamber, has been accustomed for years to employ conciliation methods in settling industrial disputes. There we have lauded the principle of the wages board system, extolling its advantages, and pointing out that it is infinitely to

Im; preferred to arbitration, with its litigious atmosphere. Unfortunately, parties go before an Arbitration Court at arms length, anxious to fight one another, not prepared to approach the solution of the difficulty in a happy spirit nf goodwill. Each endeavours to extract from the court the best result that he can for himself. Wo Victorians have pointed out from time to tune the advantages of round-table conferences, where those who are engaged in industry and know its intricacies, men who have had practical experience in its working conditions and are able to bring a first-hand knowledge to the conference table, place their cards frankly on the table before an independent chairman, whose personality and standing is sufficient to inspire confidence in both sides. Unfortunately it is not within the constitutional competence of the Federal Parliament to provide for a wages board system, as the provisions of our Constitution are limited to the method of arbitration and conciliation for the prevention and settlement of industrial disputes extending beyond the limits of any one State. We have had experience of the Federal Arbitration Court and the legislation as originally submitted, and as amended from time to time by this Parliament in order to cure proved defects in the existing machinery until the ex-Prime Minister, the Right Honorable S. M. Bruce, submitted a proposal for the vacation of this industrial field by the Common wealth authority. I favoured that legislation. I regarded it as a constitutional and not i as an industrial proposition. I take the view that was adopted by the Royal Commission on the Constitution, that these industrial problems could be more efficiently handled through the local organization of a State authority, than by the federal authority. The last election was fought on that issue, and the people of Australia then intimated that they did not desire the Federal Parliament to vacate the industrial field or to repeal its legislation in the matter. I take it that the Senate has to respect the mandate of the people. Their answer was so very clearly expressed that there can be no reasonable doubt about it.

I do not propose now to deal with the misunderstanding . of the issue by the. people or the misrepresentation that was made in many quarters. I shall not discuss at this stage the fear that was created that there would be wage reductions; or the insinuation that this party wanted to return to the old order of things, to the dreadful sweating that prevailed in earlier days. Honorable sena-‘ tors supporting the Government know perfectly well that there was not a member of the Nationalist or the Country party who desired to go back to the ob’jectionable conditions from which we escaped so many years ago.

Senator HOARE:
SOUTH AUSTRALIA

– I and my colleagues were somewhat doubtful.

Senator LAWSON:

– There we have an example .of the atmosphere of suspicion that exists. There we have an attack upon the bona fides of men, who have as much humanitarian feeling as have our friends opposite, who” mouth their protests so strongly and who claim that, in a peculiar and special degree, they represent the underdog, the down-trodden. We have become emancipated from the old order of things. It has been a gradual process of evolution and improvement. To-day there are in the ranks of our- party, many men who have been as zealous reformers in matters of that nature, and who have fought as earnestly and as strenuously against sweating conditions, and the unfair treatment of the employee by the master as has any member of the party that to-day supports the Government.

SenatorO’Halloran. -For instance, Senator Reid and Senator Pearce.

Senator LAWSON:

– I have no doubt that those honorable senators have done their part. But I was not thinking so much of those who were once members of the party that poses as the friend of Labour, as of men belonging to other parties. They have been sincere in their endeavours, and in many instances have blazed the track of industrial legislation, and sponsored the legislation that has led to the amelioration of the conditions of the worker.

Senator Hoare:

– There are bad employers and good employers.

Senator LAWSON:

– Just as there are bad and good employees. One of the arguments used in favour of wages fixation and the settlement of conditions by peaceful means is that that method not only gives protection to the wage-earner, but also brings about fair competitive conditions between employers, and ensures that, so far as wages are concerned, employers are placed upon an equal basis.

I come now to the present proposals of the Government. They are a direct result of the decision of the people at the last election. The Government received from the people at that election a mandate which I place under three headings. The first two are -

  1. That the federal authority should not vacate the field of industrial legislation.
  2. That the law should be made less penal in its operation.

It was made perfectly clear by the right honorable the Prime Minister, in his policy speech, that he did not favour the penal provisions of the act. There had been disobedience of the awards of the court, and revolts against its decisions, and prosecutions and fines had followed. That procedure was regarded as drastic, arbitrary, and destructive of the spirit of compromise that should permeate an industrial law, and there was a considerable feeling of resentment.

Sitting suspended from 12.45 to 2.15 p.m.

Senator LAWSON:

– In my opinion, Mr. Scullin, in his policy speech, did say that the Labour party, if returned to power, would abolish the penal provisions of the existing law. Whether the Government has a mandate to do that completely, I am not prepared to say, because I do not know to what extent that portion of the Prime Minister’s speech influenced electors in casting their votes. The other feature of the Prime Minister’s policy speech, so far as it referred to arbitration, was that he thought that the arbitration machinery should be freed from what had been described as entangling legalisms, and that there should be more conciliation. Although honorable senators were not directly concerned with the result of the last election for the House of Representatives, I take it that it is the province of the Senate to endeavour to interpret the mandate of the people, and to give effect to it so far as is consistent with their principles as the representatives of the States. I think that we are all agreed that the arbitration legislation of the Commonwealth is to remain. In that case, we have to consider how it can be amended in order to give effect to the mandate of the people. The measure which has come to us is vastly different from the bill as originally submitted to the House of Representatives. Radical alterations were made in another place at the instance of the Government, largely as a result of criticism by the Opposition. The obnoxious features of the bill, which were destructive of the fundamental principles of the arbitration law, and could not possibly have been accepted by the Senate, have been removed. The bill before us leaves the law as it was in that respect.

In considering the prohibitions and penalties provided in the bill, we should realize that certain statements made from the Bench show that there is a necessary corollary to the submission of disputes to the Arbitration Court. It is for the Government to consider whether, in removing the penal and compulsory provisions of the act, and deleting from the existing law those provisions which prohibit strikes and lockouts, it is not dealing a deadly blow at the very system of arbitration itself. Surely, if the parties to a dispute agree to refer the matter to an umpire, they should accept that umpire’s decision. Neither party should be free to escape from a decision given by an umpire chosen by themselves. It is to be assumed that the umpire before giving his decision will have had placed before him by both parties to the dispute, all the facts necessary to enable him to arrive at a just and impartial decision. But we have seen the flouting of the law, the absolute disregarding of the decisions of the court, and consequent industrial upheavals. I admit that such cases are rare, and have been confined to the more militant unions. Nor am I unmindful of the fact that, by virtue of the operation of the conciliatory provisions of the law, many employers and wageearners are working peacefully under agreements or awards, obtained, in many instances, as the result of round-table conferences between the parties. I suggest that one reason for the Government’s majority at the last election was that many thousands of employees working peacefully under agreements filed in the Arbitration Court knew they enjoyed many privileges and benefits as the result of arbitration legislation. Nevertheless, no one will deny that there have been revolts against awards of the umpires and the arbitration judges. In an article by Mr. Robert G. Menzies, K.C., which appeared in the Melbourne Argus of 10th June last, this aspect of the matter is dealt with. Honorable senators who support the Government may not agree with the political principles of Mr. Menzies, but they will admit that he is a legal expert of status, and that his views with respect to the interpretation of the law carry great weight. In the article to which I have referred, Mr. Menzies refers to the compulsory provisions of the law in the following terms:-

The system how operating has two balancing features - compulsory arbitration on the one hand, and a prohibition - within the competent area - of strikes .and lockouts on the other.

In this measure we are asked to delete the clauses prohibiting strikes and lockouts. The article continues -

When the validity of the prohibition arose for decision by the High Court, and was upheld, the present Chief Justice (Sir Isaac Isaacs) expressed the clear and pointed view that if parties “are compelled by law to resort to law it necessarily connotes that they cannot lawfully resort to force. “ The late Mr. Justice Higgins, the real creator of the system, who saw in it “a new province for law and order,” said: “The tribunal must be unconstrained, free to award what seems to be just and right; and it must not be left to fear that if the stronger side does not get what it wants it will take it by stoppage of work or by closing the works. … If economic pressure is to be used, the process of the tribunal will generally be futile.” The same inescapable doctrine has been repeatedly propounded by every judge who has acted in the arbitration jurisdiction.

The new bill proposes to delete from the act every reference to the prevention of lockouts and strikes, while still professing to preserve the compulsory character of the tribunal. Voluntary conciliation or arbitration may go side by side with the strike, but compulsory conciliation and arbitration with complete freedom in one of the. parties to resort to direct action is a farce. The “futility” which Mr. Justice Higgins devoted so many years to attacking is now to be given solemn statutory sanction. I have never been a great believer in the efficacy of industrial penalties, but if penalties against employers for breaches of awards are to remain - and the amending bill says that they are - then the dramatic wiping out of all penalties against unions is nothing less than a Parliamentary incitement to lawlessness. Militant trade unionism is at last to have the licence it has so long sought. It will be able to say, “We get what we can from the court; we strike for what it will not give us; we respect its decisions only when they suit us; we may, if we choose, hold up the services of the country, and still enjoy our access to, and enforce against others, -the awards of the court ; and we do - all this within the law.” How .many voters, remember giving a mandate to Labour to legalize this jungle warfare in industry! ‘ ,

Senator Daly:

– Does not the honorable senator think that Mr. Menzies would have been fairer if he had- ..said that the States have legislation which prohibits strikes, and that action can be taken whether Commonwealth awards are broken or not?

Senator LAWSON:

– The question, arises whether in this respect State legislation, with regard to strikes and lockouts, is efficacious or not.

Senator Daly:

– It is efficacious.

Senator LAWSON:

– The Government claims to have received a mandate to remove the penal clauses in arbitration legislation. The force of the decisions given by the High Court is that a necessary corollary to a system of arbitration is power to compel obedience to awards. We cannot have it both ways. In this measure the Government proposes to wipe out the penal provisions of the existing legislation. It practically tells the workers that they can go to the court for a decision, but that if it is not satisfactory, and they fail to abide by it, no penalty will be imposed on them.

Senator Daly:

– It would be more accurate to say that there will be no conflicting jurisdiction so far as penalties are concerned.

Senator McLachlan:

– This bill is a step towards voluntary, rather than compulsory, arbitration.

Senator LAWSON:

– Assuming that the Senate agrees generally to the deletion of the penalty provisions of the arbitration law, it cannot agree to the removal of nil penalties. Some of them must remain.

Senator H E ELLIOTT:
VICTORIA · NAT

– The Government does not propose to take from the existing legislation those provisions which impose penalties on employers who commit breaches of awards.

Senator LAWSON:

– As I have said, the Government in this legislation may be dealing a deadly blow at the system of arbitration by breaking down the foundations upon which that system has been built.

Senator Crawford:

– What jurisdiction has a State tribunal in an industry covered by a Federal award?

Senator LAWSON:

– -If the matter is within the competence of the Federal Arbitration, Court, then I should say that that tribunal is responsible for the enforcing of its awards.

Senator Daly:

– No. That, question has already been decided otherwise.

The PRESIDENT (Senator the Hon W Kingsmill:

– The recurrence of these conversations suggests that these are matters for discussion in committee, rather than in a second -read ing debate.

Senator LAWSON:

– The Government, proposes to wipe out certain penalty sections of the existing act. For what they are worth, the laws of the States may operate with respect to those ‘ particular offences - if offences they are. I repeat that the Government may be doing something which will endanger the whole arbitration system, and may even lead to its ultimate downfall. I think that I am correct in saying that in union circles there was a revolt against the penal provisions of the existing law because they were considered to be drastic and unfair, and that the removal of those provision? was promised by the Prime Minister in his policy speech. I still retain my opinion with respect to the necessity of interpreting such provisions in the federal arbitration law, but I do not know whether we ought to allow the Government to carry out its policy in thai respect.

Another provision relates to the appointment of conciliation commissioners. Personally, I believe that the more conciliation is employed in the settlement of industrial disputes, the better it will I* for all parties. I have always favoured round-table conferences, at which both parties get together and exchange views in an endeavour to solve their difficulties by mutual agreement. The proposals which the Government is submitting to the Senate in this measure appear to me to run in direct opposition to the very essence of conciliation. The Government proposes to appoint conciliators, who will really be arbitrators. The very essence of conciliation is that the parties shall meet and, with the assistance and influence of a third party, who is the negotiator or conciliator, arrive at an agreement. . There are many instances on record in which industrial disputes have been settled by the employment of this method of conciliation. Instances could be given where disputes have been settled at their very inception by means of conciliation, and by the good offices, for example, of Mr. Stewart or of others who have acted in the capacity of conciliation commissioners, although they may not have carried out their work as such. They have succeeded in bridging the gap between the parties, and bringing about an agreement satisfactory to employers and employees. One very notable instance was the final determination in connexion with the timber-workers’ dispute. I do not wish to go over the sad history of that dispute and its various incidents which, in my judgment, were a’ disgrace to us as a community. Dreadful things happened, the law was flouted, and the judge held up to contempt. It was licence run mad, and there can be no defence of the attitude adopted by certain people in connexion with the dispute. It dragged along in a weary way; hut eventually the parties came together before the Chairman of the Commonwealth Bank Board, Sir Robert Gibson, who was called in as a kind of negotiator. At the conference, which was held at the Melbourne Town Hall, a settlement, as far as Victoria was concerned, was reached. The negotiator was not endowed with any arbitral powers, and had not the authority to terminate the dispute or to make an award, but he was, in essence, a conciliation commissioner. He brought the parties together, and a final settlement was reached. The success of conciliation depends upon the strength and personality of the conciliator. If a conciliation commissioner is a man of outstanding personality, is noted for his impartiality, fair-mindedness, balanced judgment, and good reasoning power, and his integrity is respected by both parties, an agreement satisfactory to both sides should be reached. But if a conciliator is appointed who does not possess that status, and who does not command the necessary confidence, it seems to me that a conciliatory system is doomed to failure. Conciliation means coming together and discussing the subject-matter in dispute. If we have a conciliation commissioner with the power of an arbitration court judge, but without the qualifications or the experience of an arbitration court judge, we shall not get anywhere. The very essence of the system is that the parties to a dispute should be brought together and by persuasive influence, and the exercise of reasoning faculties, some good results may be achieved. The appointment of conciliation commissioners with the power of arbitration court judges, as proposed in this bill, in my opinion will be absolutely destructive of the principle of conciliation. It seems to me that this may be described as an attempt to graft on to the arbitration system the wages board system which has been adopted in Victoria and elsewhere. The two systems will not harmonize. Wages boards cannot operate under an arbitration system such as this.

Senator Daly:

– They have operated successfully in South Australia.

Senator LAWSON:

– I do not know what the powers of the conciliation commissioners in that State are.

Senator Daly:

– They have wages boards.

Senator McLachlan:

– Appeals are made from the decisions of the wages board to the court.

Senator LAWSON:

– Wages boards consist of representatives of both sides with an independent chairman, who has a casting- vote, and who can make a determination. In this instance the Government is employing the method first initiated in New Zealand of bringing the parties together and reaching an agreement with the consent of the parties. These agreements are promoted by a man of some power, influence, and status, who is acceptable to both parties. In that way they dispense with the litigious aspect of arbitration. The ultimata decision rests with the arbitration court, and conciliation commissioners have the powers ordinarily bestowed upon persons holding such offices. I am as anxious as is the Government that the conciliatory system should be more effectively employed. There is power in the existing law to appoint conciliation commissioners, but I understand that this provision has not been operative to any extent. I strongly object to conciliation commissioners having arbitral powers. That, in my opinion, would destroy the whole principle of conciliation.

Senator McLachlan:

– It will destroy the usefulness of such officers.

Senator LAWSON:

– Yes; it means that a satisfactory solution will not be reached under this measure. If the Government employed a genuine conciliatory agency or conciliatory machinery without this power of the sword in the chairman behind it we might get satisfactory results. That was exemplified in connexion with the timberworkers’ strike in Victoria.

Senator Daly:

– The usual result is that one of the parties to such conferences gets kicked on the shins.

Senator LAWSON:

– I disagree with the Minister in that respect. I think that a great deal of good can be achieved ; but I am not in favour of the appointment of conciliation commissioners who are really to be arbitration court judges in the guise of commissioners. That is where I stand in regard to these conciliation provisions, and I whole-heartedly support the opinions expressed by the Leader of the Opposition in this respect.

There is another matter to which I should like to refer, and which has some bearing on what was said by Senator Colebatch. With the indulgence of the Senate, I should like to quote a further paragraph from the article to which I have already referred -

We now come to the famous section .2 Iaa, under which the High Court has been given a convenient means of determining important questions of industrial law - how the Scullin Ministry dislikes industrial law! - and in particular the fundamental question of whether any dispute falls constitutionally within the jurisdiction of the Arbitration Court. The amending bill takes these powers away from the High Court. The High Court is apparently no longer to be entrusted to interpret the Constitution so far as it .deals with industrial powers. I will not weary readers with ‘ the various dry and technical considerations which will induce many lawyers to doubt the competence of Parliament to take away from the High Court its power to prohibit proceedings in any inferior tribunal when those proceedings are a violation of the supreme organic law of the Commonwealth. It is sufficient to say that the validity of the amendment would undoubtedly be challenged at the first opportunity. But why dwell too long upon the mere question of validity 1! The underlying question of policy is more profoundly important. The people of this Commonwealth have so far consistently declined .to increase the Commonwealth’s powers over industrial disputes. If the amendment now under consideration be carried, and be valid, it will enable the Arbitration Court to determine questions of jurisdiction for itself, without appeal. A single Arbitration Court judge will be able to say what does or does not fall within the powers granted to Parliament by the Constitution, and the constitutionally appointed interpreter of that instrument - the High Court - will be powerless to correct even the grossest error. I suggest that Mr. Brennan should alter the marginal note to section 21aa, so as to make.it read, “A new and easy way to amend the Constitution.”

The views of Mr. Menzies on this matter are worthy of careful consideration. Honorable senators must pay due regard to such a statement from a constitutional lawyer of standing, whose opinions must be respected.

Senator Daly:

– One who the honorable senator will admit is a distinct partisan.

Senator LAWSON:

– Dismissing from the consideration of this article, the political views of the writer-

Senator Daly:

– He wrote that as a politician not as a lawyer. The honorable senator should read the whole article.

Senator LAWSON:

– I have read two extracts to the Senate. The fact that Mr. Menzies is a politician does not render his statement less valuable. He would not injure his professional reputation by a misstatement of the law for political purposes. With that assertion, I think the Minister will agree. We cannot possibly agree to the proposed alteration to which reference has been made in portion of the article which J have just quoted.

There is another section in the act which provides that an arbitration court judge shall, in making an award, take into account its economic effect upon industry. 1 am one of those who agree with the recent dictum of the Chief Judge of the Arbitration Court when he said that, irrespective of the section in the act, an arbitration court judge is bound to consider the economic consequences of any award which he is about to propound. I feel that the law stands without this declaration; that the removal of this particular provision will not have the damaging effect which people outside seem to think it will have. I am prepared, therefore, to agree to its removal, believing that without it the law stands as indicated by Chief Judge Dethridge i» a recent pronouncement from the Bench, and that any Arbitration Court judge, conciliation commissioner, or any one dealing with the matter of giving an industrial award, will be bound to take into consideration every factor that ought to weigh in making his determination. Without this provision the law will still be that the judge is bound to take into consideration the economic necessities of the position. I do not think that the power will be exercised in a ruthless or reckless way. I think we can trust our judges to do the right thing.

I finish my remarks upon the note with which I began. This measure declares that it is designed to promote goodwill in industry by conciliation and arbitration. I am prepared to help the Government to make the utmost of its conciliation powers, but I am not prepared to give the proposed conciliation commissioners arbitral powers. During the course of my public career, I have had the pleasure of becoming acquainted with many union leaders, and for many of them

I have the greatest respect, not only for their ability, but also for their integrity, and sense of moderation and fair play. If we could get that spirit evinced in our industrial troubles, we should achieve a great deal. But I wonder whether we are really going to substitute goodwill for what now obtains. Nothing can be done for the solution of industrial troubles unless goodwill prevails, and unless there is confidence. Surely it is for us, since we are, in a sense, leaders of the people, to give some kind of a lead. “We endeavoured to do it when we suggested the holding of a peace conference. Delegates representing all parties were called together to discuss their common problems and to endeavour to find a solution of the difficulties besetting industry. But the conference broke up without registering any definite decision. There may have been created for the time being an atmosphere of goodwill and confidence, but it disappeared immediately the conference broke up. The present Prime Minister, Mr. Scullin, suggested calling an industrial peace conference. The proposal was on the boards for some time, but was finally abandoned. I do not know where the fault lies, nor do I know whether we can translate pious aspirations into practical realities. But I am one of those who believe that unless we do this we shall .not get peace in industry, or that evolutionary progress and development which we need in this country - an objective devoutly to be desired. How are we to get this change of heart? I am not saying that the blame is all on the one side. There are employers who are difficult to handle, and who may be unreasonable in their attitude, but I think that it can be said of most of the employers that their hearts have changed, that they have got away from old conditions. I was on terms of personal friendship with a man who was formerly a shearer and participated in the 1891 strike. He told me that at that time the conditions were such, the fight was so dreadful and the consequences so severe, that the iron had entered into his soul, and he could not find it in his heart to think kindly of any man who belonged to the employing class. He was quite honest and sincere, but there was a bitterness in his heart - as he put it, the iron had entered into his soul - and no influence that I could exert upon him was powerful enough to remove it. We shall never get any satisfactory conclusion while such bitterness, class hatred, and ill will prevail. When such things get into the mind of the individual his judgment is warped’; he is not able to see things in their right perspective; he is suspicious of every one who has made any success of life, or got into a position in which he is able to lead or employ others. While such disturbing influences are at work, while people are constantly preaching class hatred and ill will, engendering suspicion in the minds of one section against any other section, instead of preaching tie doctrine of mutual confidence and goodwill, we shall not make progress in this country. I do not care what’ particular machinery is prescribed for conciliation or arbitration, unless it is operated in the right spirit we shall not get a good result. Operated in the right spirit, almost any machinery will prevail to bring about a satisfactory result. ‘ It is not the machine, nor the method, nor the particular agency, it is the spirit with which the machine is operated that counts, and that is what we have to change. Yesterday I was reading the Labor Daily, the Labor Call, and the Worker, and I could find in their columns nothing but suspicion and want of confidence. They think it is their duty to be always against the employer.

Senator Dunn:

– Did the honorable senator read the Age and the Argus

Senator LAWSON:

– I am not denying there are faults on both sides, but I should like to see a different spirit substituted for that feeling of suspicion that now prevails in industry, because then we could solve our troubles and problems and the machinery used would not matter very much. Without a change of heart and spirit in the people, unless there is a sense of co-partnership we shall not make progress. The ex-Prime Minister of Great Britain, Mr. Baldwin, speaking in the House of Commons, made a strong appeal for comradeship, copartnership and goodwill in industry. I do not know what the response was to his appeal.

Senator Dunn:

– Did he appeal for it in the steel mills be controls?

Senator LAWSON:

– From what I know and have read of Mr. Baldwin, 1 should say that he would be a model employer, one who is always prepared to do the fair thing to those who are working for him. Let us get this poison of distrust, bad feeling and suspicion out of the minds of both sections of industry, and then as a country we may be able to realize our destiny. It is one of the greatest ills of the body politic; one of the things that is sapping our strength, ruining our economic life and preventing us from pulling together as a people. We have to get back to that order of things where the spirit is different, and the heart, is different. Oan we change our pious aspirations into practical realities ?

Senator THOMPSON:
Queeusland

– I shall not detain honorable senators for more than a few minutes because in a general way my views have already been fairly well impressed upon the Senate. As I have said previously, arbitration in Australia has proved a failure. My view in that regard was strengthened by my visit to Canada and California, that magnificent State of the United States of America, which more than any other State, and even more than Canada, approximates Australia it; so far as its general conditions are concerned. But I am not unmindful of the fact that this country decided by a swingeing majority at the last election that it is desirous of retaining arbitration. I consider it my duty, therefore, to endeavour to assist the Government in making the Arbitration Act a workable one for the good of the people, but I do not admit that the mandate for arbitration the Government got at the last election permits it to bring forward any fantastic or one-sided legislation or gives it. carte blanche. There was simply evinced a desire on the part of the people of Australia to retain arbitration. Briefly, I propose to outline my attitude in regard to the principle features of the bill now before the Senate.

Senator Hoare expressed everything that I feel in regard to secret ballots. I agree that they should be held, but I cannot conceive that we shall ever get anywhere unless the workers themselves agree to the principle. We have tried to apply it under compulsion, but the secret ballot provisions of the act have been ridiculed, scoffed at, derided and made n mockery of. What is the use therefore of insisting on something to which proper effect cannot be given ? There is no doubt as to the efficacy of the secret ballot, and now that the provisions relating thereto are to be dropped from the act, I hope that the unions themselves will recognize the desirability of using the secret ballot on every occasion when dislocation of industry is threatened.

Another matter relates to the capacity of industry to bear ,any rate of wages or conditions of labour imposed by an award. The other day Chief Judge Dethridge said nothing but the plain truth, when he remarked that whether provision was, or was not, made for it in a statute, consideration must be given by any tribunal, no matter how controlled, to the economic capacity of an industry to pay the rates of wages fixed in an award. I have only to refer honorable senators to an experience in Queensland. Judge McCawley, who was a nominee of the Labour party, took into consideration the capacity of an industry to pay certain wages without any statutory direction to do ‘so. That he was right was proved to the hilt in connexion with an award given for the Mount Morgan miners. He saw that the ore reserves in the Mount Morgan mine were decreasing in value, and because the company had been paying wages at a loss, he gave an award in which the rates of pay were lower all round than the company had -been paying. The unions thought differently, and here is where the union organizers came in. They recommended the men not to accept the wages awarded by a judge appointed by a Labour Government, and for eleven months the men stood out against that award until a compromise was effected by the Government of the day. It was a Labour Government, and the men got u good deal of what they were standing out for. Not long afterwards, the Mount Morgan mine had to. close down. The facts in connexion with that award show that it is. necessary, in all cases, for a judge to consider the capacity of the industry concerned to pay the award rate.

While I should like to see this provision retained in the act, I do not feel any grief over the proposal to repeal it, inasmuch as I am certain that the economic circumstances of an industry will always require any tribunal to consider its capacity to bear the burden which may be imposed upon it. As for the conciliation commissioners, I may say at once that I do not like that type of gentleman at all. According to the bill, a commissioner is to be given the power of a judge of an Arbitration Court.

Senator Reid:

– Does the honorable senator think that he will bc a gentleman?

Senator THOMPSON:

– I intend to give him that status until he proves himself to be otherwise. I do not approve of the appointment of conciliation commissioners with the powers of judges. I should prefer to see all awards made by a. judge of the Arbitration Court as at present.

The next suggestion I have to make is in connexion with the proposed conciliation committees. These may prove to be excellent tribunals for the settlement of certain industrial disputes that occur from time to time. The proposal reminds me of the practice followed in California, where, I understand, excellent results are reported from round-table conferences between those most directly concerned in a particular industry. In California, I was informed, it is not necessary to refer any dispute to an umpire, because all industrial troubles are settled at these round-table conferences. I am, however, certain that in Australia we shall have to enlist the services of an umpire in connexion with the deliberations of these proposed conciliation committees. This is where I join issue with the framers of the bill. I consider that a conciliation commissioner is not likely io prove a good chairman of a conciliation committee, because he will be the appointee of the Government of the day, and whether one likes it or not, one cannot escape the belief that all such appointments will be tinged with political bias. I am afraid, therefore, that the scheme is not likely to be so fruitful of good results as one would like it to be.

Senator DUNN:
NEW SOUTH WALES · ALP; LANG LAB from 1931

– Does the honorable senator consider that thorp, was no politi cal bias in connexion with the appointment of the present Arbitration Court judges?

Senator THOMPSON:

– Certainly there was not. But I was about to say that this proposal to appoint conciliation committees reminded me of the old wages boards system in Queensland. I took no small part in the deliberations of those boards which consisted of three representatives of the employers on one side, and three representatives of the employees on the other. One advantage which we enjoyed over judges of the Arbitration Court was that we understood, from A to Z, the nature of the business with which we were dealing, and it was not necessary to hear a great deal of evidence concerning matters in dispute. But the crux of the wages board system is in the chairmanship. It was in this respect that it. failed in Queensland, and I venture to think we shall have the same experience with these conciliation committees. In Queensland we endeavoured to enlist the services of a chairman who was absolutely unbiased, but in practice we found it almost impossible to secure such a man. I think, therefore, that the most satisfactory course to take in connexion with the conciliation committee would be to appoint a judge as chairman.

My last point has to do with the principle of preference to unionists. I am prepared to support the provision in the bill if the Minister will agree to the reinsertion of the words “other things being equal.” I take the view that there should be absolute freedom to all to work in Australia; that the right to work should not be the monopoly of trade unionists. We should have freedom of contract on both sides in industry. The employer should have complete freedom in the selection of his employees and similarly employees should have complete freedom to work in any industry. It is monstrous to say that before a man can claim the right to work he must belong to a particular trade union. I know very well what the stock argument is’. Those who stand for this, principle declare that since trade unionism, so they claim, has secured all the benefits which employees in industry enjoy as the result of Arbitration Court awards, all workers should be obliged to contribute to the funds of the union which controls their particular calling and pay their share of its administrative costs.

Senator Dunn:

– What about the Fanners and Graziers Union and the Lawyers Union?

Senator THOMPSON:

– I am not considering those associations for the moment. I am directing my remarks to the position of employees in industry as they will be affected by this proposal. I shall oppose this provision in the bill dealing with preference to unionists until the words, “ other things being equal “ are reinstated. It appears to me to be most unfair that a man should be required to take out a union ticket before he can offer for employment in a particular calling. In one case which came under my notice, a man had to take out tickets in four or five unions before he could offer1 for work, and even then the unfortunate man was unable to secure employment. At the present moment a measure is being discussed in the Queensland Parliament which, I think, will deal satisfactorily with this aspect of trade union administration. The proposal is that if a man holds a union’ ticket he shall be entitled to apply for work without reference to any particular union, thereby saving a- great deal of expense which many men cannot afford. Many trade unions, as we all know, are close preserves. This may be said particularly o£ the Waterside Workers Union in my district. It is as difficult for a man to become a member of that organization- as1 it is to enter’ the portals of Heaven.

Senator Dunn:

– The trade unionist who told the honorable senator that was not speaking the truth.

Senator THOMPSON:

– I am speaking of facts which have come- under my notice.

Senator Dooley:

– Then I presume the honorable senator would approve of the formation of one big union?

Senator THOMPSON:

– I should have no objection to one big union provided the arbitration law did not enact absolute preference to unionists. I am and alwayshave Been a firm believer in the principle of freedom’ of contract, and’ I hope I always shall’ be.

I have said all I intended to say, and I do not propose to detain the Senate longer. With the limitations I have mentioned, I am prepared to assist the Government to make this measure more workable, in the hope that it will lead to efficiency in industry and the betterment of the country in general.

Senator DOOLEY:
New South Wales

– Having listened attentively to the debate, I gather that nearly all those honorable senators who have spoken stand by the principle of arbitration. I do not know that there is any alternative, because, when last appealed to, the people made a definite pronouncement with regard to this matter. I therefore suggest that there is little more to be said on that point. Something has been said against those trade unionists who, supposedly, have received benefits from the operation of the arbitration law, and somewhat severe criticism has been indulged in concerning the attitude of a number of trade union officials. I may, perhaps, be permitted to speak on this aspect of trade union affairs from practical experience. I have a clear recollection of the conditions that obtained in industry in pre-arbitration days, because I happened to- be an official in my union, and I took a somewhat prominent part in the organization of the industrial movement. I well remember the position in the Railway Workers and the General Labourers Association, of which I was a member; and how difficult it was to secure redress of our grievances. I recall one strike in particular, when, we were employed by a contractor for the construction of a section of the north coast railway. At that time we were being paid 7s. a day. We were dissatisfied with the rate of wages, and as we could get no satisfaction from the contractor, all the men downed tools. Thereupon the contractor promptly agreed to an increase of ls. a day. Those outside the ranks of our association were receiving only 7s. a day, and when it was realized that, by striking, we had obtained another ls. a day, there was a strong agitation for a uniform rate of pay to all engaged in that particular calling. Shortly afterwards, many more members . became enrolled in our association, and we made application to the Arbitration Court for an award Uy cover that class of work. The court sat and heard the evidence, hut 23 months elapsed before the award was made. Then it had to be gazetted. This involved a further delay of a fortnight. I cite our experience on that occasion in order to bring home to honorable senators the difficulties which trade union officials so often experience in securing awards. It is no wonder that the patience of industrial workers becomes exhausted by the long delays that occur in the Arbitration Court. In the case of that particular union, the officials impressed upon the members that they must be patient. One cannot be surprised’ that men become restless and discontented, especially if there is a suspicion that a judge or the arbitrator does not know his work. I think it took about ten days in one case to explain to a judge that there was justification for a marginal increase for skilled work in connexion with spalling stone. The advocate for the union explained to the court what had to be done. He showed that an efficient nian knew how to place the stone in order to break it with the grain, and in this way do more work and do it more satisfactorily than the novice. After all this had been carefully explained to the judge, it was stated that the court was satisfied that the advocate had made out a good case for the marginal increase, except that it was not clear to the court whether the work was done in the lifting up or the bringing down of the hammer. Can any one imagine sane, reasonable, and thinking men - there are many such among the working classes of the community - tolerating such rubbish as that?

Senator Sir George Pearce:

– There is a suspicion that some men exert themselves more in the lifting of a hammer than in bringing it down.

Senator DOOLEY:

– Perhaps the right honorable the Leader of the Opposition himself is in that category. I cannot say, because I have not seen him at the business end of a hammer. As I have explained, the union with which I was connected had to wait 23 months for the award, and then there was a further delay before it was gazetted. These delays irritate even the most moderate members of trade unions! - men who are prepared to entertain any reasonable proposal to ensure peace in industry.

Senator McLachlan:

– There is not now the same congestion in the Arbitration Court.

Senator DOOLEY:

– There is no reason why the working man should have to wait so long for the adjustment of. his grievances. During the war, when employees under the jurisdiction of the Australian Workers Union could have taken the bit between their teeth, downed tools and commanded much more than they were receiving, officials of that organization appealed to them to display their loyalty. They did. They waited patiently for many long months until they gained access to the Court of Conciliation and Arbitration, and they loyally adhered to its awards.

The miners union has been referred to as a militant organization. During that terrible period they were in control of a key industry, and they knew it. Had they desired to demand more for their labours they could have obtained it, but they refrained from exercising their strength.

Senator H E ELLIOTT:
VICTORIA · NAT

– Has the honorable senator read the remarks of the Royal ‘Commision on the Coal Industry on the subject?

Senator DOOLEY:

– I have; and I also know the position perfectly well from my personal contact with the industry. Perhaps the coal-miners asked for and received more than did any other organization during that period. And, perhaps, too, those who were more moderate and left everything to be decided by the principle of arbitration are doubtful now whether they displayed wisdom, and whether they were fairly treated at the time.

Our arbitration awards have always been based on the cost of living. No member of the working class who believes in arbitration - and the majority of them do - would object to the application of that principle to-day. But it must bc applied consistently. The awards of the court should fluctuate with any rise or decline in the cost of living. Unfortunately that is not so. If ‘ a sacrifice is to be made the worker must make it, first, last, and always. Recently there has been trouble over tie relief works at Maroubra, which have now been closed down. The position is not, as honorable senators opposite infer, that the men are too lazy to work. For many months they have not had a decent meal. They are not able to work. Surely it is in the interest not only of the worker, his wife and family, but of the whole community that the Arbitration Court should award a wage that is sufficient to keep a man’s body and soul together. The present method can only bring in its train starvation, degradation and ruination. The award of the court provides. a marginal rate for skill. To counteract that, the Bavin Government introduced an unemployed relief act under which it is possible to declare any work a relief work, and existing awards have gone by the board. If that- Government were sincere in its desire to promote peace in industry and to hand out justice to all, it would not be a party to a scheme which reduces the standard of living.

Senator McLachlan:

– Is it not better chat the men should be working rather than accepting the dole?

Senator DOOLEY:

– I quite agree with that. The dole merely keeps body and soul together. I realize that for the welfare of the country there should not be any dole system, but that when a man is in need of work he should be given the work and paid for it at reasonable rates. It is our duty to see that justice is done.

Senator Dunn:

– The dole is the boss’s conscience money.

Senator DOOLEY:

– It is.. The dole system is wrong in principle. Any system that interferes with the necessaries of life is wrong. If a man has a draught horse, and desires it to work effectively, he feeds it properly to enable it to build up sufficient strength for the job in hand. Is not that simile also applicable to human workers ? Is it not an economic necessity to see that workmen are properly fed before asking them to perform any task? They must receive an income sufficient to enable them to purchase the necessaries of life, so that they may maintain their health and strength.

Senator Guthrie:

– Did not those men employed at the relief works declare the job black because they had to work 48 hours a week ?

Senator DOOLEY:

– In the first place the Bavin Nationalist Government decided that the basic wage or its equivalent should be paid to those men, on an hourly basis. As I have already pointed out the award provides for a marginal increase for skill. The Government decided to pay only the minimum amount provided by the award, so that, the lowest automatically became the maximum rate, and it was paid on an hourly basis. There is also a provision in the award that all fares reasonably incurred by the employees above 2s. 6d. a day shall be paid by the employers. The Bavin Government refused to honor that provision, and so the trouble arose.

The PRESIDENT (Senator the Hon W Kingsmill:

– Does the honorable senator intend to connect his remarks with the bill?

Senator DOOLEY:

– I was replying to a question, Mr. President.

The PRESIDENT:

– I am not aware that the question had anything to do with the bill.

Senator DOOLEY:

– It is always my desire to enlighten honorable senators as much as I can. I shall apply myself to the bill.

We all recognize the need for a system that will regulate the wages and conditions of the workers on an equitable basis. No one desires that there should be any retrogression in this matter. Throughout my association with unions, and union leaders, I have found that the general desire is .to do everything possible in the interests of the community. Those men are continually endeavouring to evolve a satisfactory system by which that can be effected. I have participated in arguments as to the merits of arbitration. Many contend that the system merely brings about discontent in industry. There will always be discontent in industry if the workers do not receive that to which they are justly entitled.

The people of Australia decided that the principle of federal arbitration should be ratified, and this Government is determined that it should be based upon the Harvester judgment, which provides a fixed rate award. Honorable senators opposite contend that awards should be based upon the power of industry to pay them. Why was that principle not followed in the past? I have here some figures I have taken from the Commonwealth Year-Booh, which deal with the sheep industry, and I shall prove that honorable senators of the Opposition are consistently opposed to the principle of equity and justice in arbitration. The Nationalist Government previously in power inserted a clause in the Arbitration Act providing that when determining awards the judge should consider the power of industry to pay them. I do not know whether honorable senators have changed their opinions, on that subject. If consideration had always been given to the power of industry to pay a certain wage shearers would have been receiving about £4 5s. per 100 sheep in 1928.

Senator Guthrie:

– Why?

Senator DOOLEY:

– Because in 1901 wool sold at 7id. lb., and shearers then received 20s. per 100 sheep shorn. In 1927-28 the price of lambs’ wool had risen to 59£d. a lb., and that of greasy merino to 53id. a lb., the average price being 3s. 6*d.

Senator GUTHRIE:

– Those figures are nowhere near being correct. The honorable sena’tor is quoting record prices.

Senator DOOLEY:

– Those prices indicate that although wool increased enormously in value the shearers did not participate in the improvement. That indicates that the actual basis for Arbitration Court awards is the cost of living. Yet when the wool industry ceases to flourish, but the cost of living remains stationary, employees are subjected to a decrease of 20 per cent, on their wages. Honorable senators opposite and their supporters want it both ways.

Senator Cooper:

– It is generally agreed that the earlier awards were given because of the exceptional prosperity of the industry.

Senator DOOLEY:

– I contend that they have been based on the cost of living. I remember that when the awards were about to be made records were obtained as to the earnings of shearers, and the prices of combs and cutters. They took into consideration such matters as the cost of travelling to and from the various sheds, and the cost of board and lodging.

On those grounds wages were increased. Had the shearers obtained what the amending bill introduced by the BrucePage Government intended, they would have received in 1927 and 1928, £4 5s., instead of £2 5s. for every 100 sheep shorn. That argument was not used in the courts then ; but now that the industry is less profitable, there is a determined onslaught on the wages of the shearers. The advocates of the employers want to have it both ways. This bill stands for the maintenance of a living wage based on the cost of living as set out in the Harvester case. Anything else is equivalent to robbing the worker of something for which he has striven for a number of years. Many unionists have made great sacrifices by deciding to stand by the awards of ;he court, when by downing tools they could have done much better for themselves. They are entitled to consideration to-day. They are justified in fighting against any attempt to rob them of their rights. 1 have never yet heard a workman complain of his wages fluctuating according to the cost of living, because he knows that a wage based on the cost of living has always the same purchasing power. But the workers do object to employers taking advantage of a fall in prices to reduce their wages. The position which confronts us to-day is that employers, assisted by Nationalist governments, desire to starve the workers into submission.

Much has been said regarding union officials. In my opinion union officials as a class bear favorable comparison with any other class in the community. They have as much right to urge the claims of those whom they represent as the employers have to look after their own interests. I shall not refer to the dispute in the shearing industry, because the President of the Australian Workers Union will probably have something to say on that matter later. Realizing that the bill is peculiarly one for consideration in committee, I shall leave any further remarks until the committee stage has been reached. I support the second reading.

Senator PAYNE:
Tasmania

.- I have listened carefully to the various speeches delivered during the debate on this measure, and have endeavoured to find reasons which would justify the Senate in passing the second reading. Having studied the bill carefully, I am of the opinion that its object is, first, to remove at one fell swoop any penalty that might attach to law-breakers among employees, while retaining the penalties against employers who break the law.

Senator Daly:

– I shall be glad to hear the honorable senator’s interpretation of clause 9.

Senator PAYNE:

– Before dealing with clause 9, I desire to refer to clause 2.

The PRESIDENT (Senator the Hon W Kingsmill:

– I ask honorable senators to deal, not with clauses, but with principles, in their second-reading speeches.

Senator PAYNE:

– Almost at the beginning of the bill it is stated that its object is to promote goodwill in industry by conciliation and arbitration. I cannot help saying that there is a good deal of cant in that expression, seeing that the existing act makes ample provision for the adoption of conciliatory methods for the settlement of disputes. There is power in the existing legislation to appoint conciliation commissioners, and to endeavour, by conciliation and good-will, to settle any disputes that might occur. But, because the Government desires to pose before the people as a body of men desirous of obtaining harmony in industry, it describes this measure as one to promote goodwill in industry. One of the principal features of the bill is the deletion of the existing penalties for strikes and lockouts. The prevention of strikes and lockouts is the object of all industrial legislation.

In dealing with this measure I ask honorable senators to remember the chief cause of the unemployment that now exists. Particularly in Melbourne and Sydney, that unemployment is due, in a large measure, to a deliberate attempt by the timber-workers, and those who advised them, to flout an award of the Arbitration Court. I personally heard two members of this Parliament tell the workers, who at that time had been out of work for some weeks and had no means of supporting their wives and families, that, practically, it would be better to starve than to work 48 hours a week, and that they would receive sup port if they continued to defy the court. One of those gentlemen was Senator Rae, and the other Mr. Theodore, until recently a member of the Ministry. The remarks to which I refer were made by them from the platform of the Sydney Town Hall. I was present at the meeting, and witnessed the disgust with which some workers left the hall when they heard that ‘advice from men who should have told them to abide by the decision of the court, and endeavour to obtain their objective by constitutional methods. The people of Australia look with apprehension on legislation which, while enforcing obedience to the law by the employing section, encourages employees to break it. The passing of this bill will mean that strikes and lockouts will no longer be prohibited. The bill is, in fact, an invitation to the workers to go on 6trike whenever they feel disposed to do so. It encourages the firebrands, who, unfortunately, wield a great influence in trade union circles, to continue their nefarious practice of interfering with men who are prepared to render loyal service to their employers. I say that advisedly. No such invitation is given to the employers.

Senator Daly:

– The honorable senator’s statement is a reflection oh his intelligence.

Senator PAYNE:

– There are all sorts of reflections. A man may look in a mirror and see a reflection of himself which does him justice; or he may, by standing in front of specially constructed mirrors, see a distorted reflection of himself.

Senator Daly:

– I have never distorted facts.

Senator PAYNE:

– I shall give the Senate some facts. The first fact that I shall relate is in connexion with the interference with a workman in Melbourne who was prepared to give a fair day’s work for his pay. On the first day the foreman arranged the man’s work, and at 2 o’clock in the afternoon the employee went to the foreman and said that he had completed the job, and asked what his next work would be. The foreman exclaimed, “What, finished it already. That was to occupy the whole day.”

Senator Dunn:

– I read all about that in Smith’s Weekly five years ago.

Senator PAYNE:

– This occurred only within the last six months. When the foreman, learned that the man had finished his job he said, “ You had better spend the rest- of the day in sharpening your tools.” Only a few days afterwards I was speaking to a Melbourne man who said that his son had secured a position as driver of a motor lorry used in transporting goods. During the first day or two it was found that he was making more trips than others engaged in similar work for the same firm. He was immediately told to slow down to the level of the others or there would be trouble. Shortly before that I was in Sydney when the timber-workers’ strike, which dislocated trade in many industries in which timber was used, was in progress. I got into conversation with a young fellow who was “ up against it,” because a reduction of hands in the place where he had worked placed him on the unemployed list. He appeared to be a very smart young fellow and apparently a good worker. He told me that there had been a suppression of work, which had evidently been continuous throughout the establishment, with the object of reducing the daily output. He informed me that his shop mate had completed certain work in an hoUr and three-quarters while others doing similar work usually occupied two hours. Within a fortnight he was brought before the union to answer the charge of breaking log time and was fined £10. He had to pay that fine merely because he had done his work conscientiously.

Senator Dunn:

– The honorable senator should’ name the union.

Senator PAYNE:

– It was the Furniture Trade Employees Union. If Senator Dunn wishes to corroborate my statement he should peruse the files at the Trades Hall in Sydney in which he will find similar cases recorded where unionists have been fined from £5 to £10 for breaking log time. I have mentioned these cases to show the extent to which trade union organizations are prepared to go in order to reduce output. That is the cause of a good deal of the economic trouble with which we are now confronted.

Provision is. made in the bill that, irrespective of the offences against the act, nO penalties shall be inflicted.

Senator Daly:

– The honorable senator should read sections 44, 49 and 9.

Senator PAYNE:

– The first mentioned by the Minister reads -

The rules of an organization registered under this act and the officials of such organization shall not, during the currency of an award, in the industry concerned, prevent or impede any members of such organization from entering into written agreements in accordance with such award.

What has that to do with the deletion of the penalty sections?

Senator Daly:

– I referred the honorable senator to section 44 of the act, which is not to be repealed.

Senator PAYNE:

– The Minister distinctly referred to clauses 44, 49 and 9. The first-mentioned has nothing to do with the point I raised.

Provision is made in the existing act that a judge of the Arbitration Court shall, in making an award, take into consideration its economic effect upon the industry concerned. That section is to be deleted. In future -the economic effect of an award is not to be taken into consideration.

Senator Daly:

– That is nonsense.

Senator PAYNE:

– That is the way I interpret the bill. It is absolutely essential to take into consideration the economic effect of an award upon the community generally.

In the section relating to preference to unionists, the words “other things being equal” are to be deleted, which makes preference to unionists absolute.

Senator Dunn:

– What is wrong with that?

Senator PAYNE:

– The honorable senator may not see anything wrong with it. What is there sacred about trade

Unionism as we find it to-day? At its inception it had much to commend it. It could have been the means of promoting development and industrial prosperity to such an extent that, even during a period of depression, the consequences would not have been severe. Do those honorable senators who advocate this pernicious principle think a man who does not belong to a union has no right to live? The amendment cannot be justified on moral or on legal grounds. I have heard men associated with the Labour party say that if . a man will not join a union, he should starve. Every honest man who is prepared to work should be permitted to do so.

Senator Hoare:

– There is nothing to prevent his doing so.

Senator PAYNE:

– Under this measure trade unionists will have absolute preference of employment regardless of their qualifications. If a unionist and a nonunionist were seeking the same position, and the non-unionist possessed higher qualifications than the unionist, he could not obtain it.

Provision exists in our arbitration law for a judge of the Arbitration Court to order the holding of a secret ballot. It is now proposed to delete that section.

Senator Hoare:

– It is valueless.

Senator PAYNE:

– It has been rendered valueless by the lawlessness of those in control of trade unionism, who have incited trade unionists to break the law. Thousands of loyal unionists would appreciate the opportunity to hold a secret ballot.

Senator Hoare:

– The proper thing to do is to see that the unions incorporate the secret ballot in their rules. Most of them have done so.

Senator PAYNE:

– But I am assured that it is difficult to get it put into operation in some of the unions. The principle is a fair one. It gives the weaker men some protection.

Senator Hoare:

– It is the right principle.

Senator PAYNE:

– The honorable senator believes in the principle, yet he does not want to see it incorporate’ i:> ours legislation.

Senator Hoare:

– No; because it is valueless.

Senator PAYNE:

– -Because ii proved to be valueless in the timber workers’ strike ? No strike has been accompanied by more lawless actions than took place during the timber-workers’ strike. This bill provides for the elimination of penalties for such offences as assault. During the timber-workers’ strike there were terrible incidents. Men were’ battered, some of them left on the roadside almost done to death by strikers enraged because others were prepared to abide by the law and carry on the work that Australia needed. These assaults were carried out by men armed with pickets, who were instigated !by others whose main object in life seems to be to foment strife and, having fomented it, to see that it is kept going. Yet, under this bill, such men will not be penalized.

Senator Daly:

– The honorable senator knows that there are State laws under which men can be prosecuted for such offences.

Senator PAYNE:

– Surely it is an improper thing for u representative of the Federal Parliament to shelter behind the fact that the States have ample power to inflict penalties on men who commit offences under Federal legislation. But will Senator Daly explain why it was found necesary to insert in the Commonwealth industrial law penalties against those who engage in violence against certain persons or by threats, abusive language, boycott, .or threat of boycott, seek to prevent others from carrying on their lawful occupations?

Senator Daly:

– There has not been one prosecution under that provision. Offenders are prosecuted under State laws.

Senator PAYNE:

– I know that it has been said that the Federal authorities cannot enforce certain laws, and must rely on the State authorities, but that does not warrant us in saying that although certain things may arise in future to warrant prosecutions, there is no need for penalties. It seems to me a very wrong policy indeed to eliminate the provisions of our law which seek to prevent violence in industrial disputes.

The provision in the existing law for the cancellation of the registration of a union under certain conditions has been one of the greatest safeguards we have had against industrial disturbance. A union that violates the principles of the act or an award of the court may suffer de-registration, the greatest penalty that can be imposed upon it. But this bill provides for the elimination of the power of cancellation possessed by the court. In committee I shall do my best to oppose this.

When I heard that the Government intended to introduce legislation in regard to our industrial laws, I hoped that something would be done in the direction of improving the law, but the amendments proposed in this bill will not improve the law ; on the contrary, they will have a reverse effect. Australia has never before experienced such troublous times. Unemployment is rife, industry is dislocated everywhere, and, owing to the f alling-off in the demand for commodities they have been assisting in producing, men are compelled to leave their employment. Business men are reducing their staffs every day in the week. We have in power a party which said that its aim was to reduce unemployment. It told the electors that if it were given the control of the Commonwealth, the unemployment problem would immediately be more or less solved. Instead of that, however, the percentage of unemployment is to-day greatly in excess of what it was six months ago. I am afraid that, instead of looking for a diminution of unemployment in Australia, we shall find the number of unemployed further increased if we remove from the Arbitration Act provisions which sought to compel men to observe awards of the court. “We can only hope to get back to our normal conditions after a very long and weary struggle against adversity in which all persons in Australia must make up their minds to give of their best in whatever occupation they may be following. Only by doing so, can production be increased and the cost of living reduced. Whatever government is in power it is imperative that pressure should be brought to bear upon the leaders of the industrial organizations to compel them to keep their hands off the workers and not to interfere with those who are doing their job efficiently. They must be compelled to refrain from trying to bring the Al class of worker to a lower grade in order to put all on the same level. Every man should be encouraged to give of his best and improve his output. If we can do that we shall eventually get over our difficulties. This period of adversity has come upon Australia to teach us the lesson that we can no longer live in extravagance, refuse to give of our best, or bring about a diminution of output without suffering a penalty, and that the individual who. attempts to incur obligations amounting to 21s. for every £1 he is earning must eventually go to the wall. I express my entire opposition to the Government’s proposal to amend the arbitration legislation in the direction indicated in the bill, and I hope when the measure eventually leaves this chamber it will be so altered, not that its sponsors will not recognize it, but that the minimum instead of the maximum of danger will be found in it.

Senator H E ELLIOTT:
VICTORIA · NAT

– I have been looking into the report of theRoyal Commission on the Coal Industry. To that industry the Commonwealth Conciliation and Arbitration Act first applied, and then because the miners refused to regard an award made by Mr. Justice Higgins, and went on strike, the Commonwealth Government went to the trouble of providing them with a special tribunal on the lines of the conciliation committees suggested in this bill. But that had no effect in diminishing the strikes or other disturbances on the coalfields, as I shall show by reading a few extracts from the report of the royal commission. I read the following from page 224

Despite the relatively favorable position of the contract-workers, opportunity was taken in 1916, 1917, 1919. and again in 1920 to formulate and enforce by striking, when the demand was not promptly conceded, claims notonly for largely increased contract rates, but also for reduced hours and more favorable working conditions. These demands were made in advance of the steep rise in the cost of living and of the intermittency due to the war.

It was not, as suggested by Senator Dooley, a case of discontent being caused by the rate of wages lagging behind the rise in the cost of living.

In so far as the sliding scale was departed from, to improve the living conditions of dailywage workers, these demands were largely justifiable, but in respect of contract workers, there can be no doubt that advantage was taken of the nation’s need to enforce claims which were far in excess of the merits of the case, and of the real capacity of the community to pay.

In the face of the most urgentnational necessity, industrial peace was bought by granting, without sufficient inquiry, concessions which were demanded. The basis of successive adjustments was such that the anomalies, both real and apparent, that had grown up under theold system, were retained, and there was no review of the relativity of the rates as a whole in the light of changing circumstances. The apparent desire for peace at any price, irrespective of the justice of the case, appears to have precluded all thought of revision of contract rates. This is hardly surprising when it is reflected at what cost in industrial strife even minor re-arrangements have been effected.

Although the rates of payment made to contract workers have remained nominally unchanged since 1920, there has occurred a steady increase in favour of underground workers, and particularly miners, through the constant pressure applied in demanding “ consideration “ payments. On this subject an industrial expert who made a special investigation on behalf of the commission gave the following evidence: -

The common complaint of the colliery manager is that the miners are continually pressing for consideration and that it is next to impossible, in many instances, to refuse or to determine the amount to be paid on the merits of the case presented and to keep the pit in operation. As managers, they claim that they are better qualified to judge what payment is equitable and that their judgment should stand. But when there is a risk of the pit being stopped, and there is trade to fill, they are required to refer to superior authorities for instruction . . .

They are not allowed to make full use of the machines. The report goes on to state -

The outstanding anomalies in the contract rates paid to miners at the present time are -

The excessively high rates paid on all seams and particularly on the thick seams of the Greta field. The amount of excess in these rates over and above the rates necessary to provide reasonable earnings add substantially to the cost of production of coal.

The handicap placed upon the use of machines, especially on the Greta seam, through the extravagantly high tonnage rates for machinemen cutting coal. The evidence showed that even though severe limitations were put upon the amount of work done by machines, machinemen frequently earned more than £3 per day, while the general average where separately recorded was £2 Cs. The sworn evidence of one manager was that on existing rates a machineman operating an electrically driven Arc wall machine in his colliery could earn from £G to £0 10s. per day working for the full time of the shift.

Senator Barnes:

– How much do the lawyers earn a day working full time?

Senator H E ELLIOTT:
VICTORIA · NAT

– A lawyer is not limited by an Arbitration Court award as to the number of hours which he shall work.

Senator Hoare:

– Nor is he limited in the amount which he may charge for his services.

Senator H E ELLIOTT:
VICTORIA · NAT

– His services are not forced upon people. They are not compelled by Arbitration Court awards to pay a lawyer for work which he does not do. I find this interesting statement on page 155 of the report: -

Managers generally agree that they have lost the power of dismissal or suspension of employees, and they unanimously lay emphasis upon the necessity for the restoration of their rights in this vital matter, in order that discipline within the industry may be revived and maintained. One leading manager in the Maitland field in his evidence said he had not been able to dismiss a man for twelve years, although many proper occasions had arisen. Examples were given by various witnesses of the serious industrial stoppages which occurred when men had been suspended or dismissed for breaches of regulations or of the orders of the manager.

Under present circumstances, when more men are wanted in any particular classification associated with the winning or handling of coal, the manager must employ members of the Miners Federation, and, when reduction of hands is necessary, the principle of “ last to come, first to go “ applies rigidly, even if this means the retention of less efficient men.

In our opinion it is essential to the proper conduct of the industry that the management should have the support of the board, the appointment of which we recommend, in exercising the right of dismissal or suspension.

I remind the Senate that this is not a minor industry. On the contrary, it is an important industry for which a special tribunal was appointed, and so far from obeying its decisions the men engaged in it abused their privileges. The report states further -

These are examples of the items upon which “ consideration “ can be, or is paid and the rates for which are, in many cases, covered by registered general or local agreements. Any matter, however, which is in the opinion of the employee in any way extraordinary, can be, or is raised for the payment of “ consideration “.

In the Maitland field, particularly, the habit of claiming extra payments for “ consideration “ has grown materially, and the evidence before us shows that it has tended to become a growing item of cost and an increasing source of irritation and dispute between the managers and the men, particularly the miners and wheelers.

In the southern and to some extent in all districts, another form of “ consideration “ which is of serious moment arises in connexion with what is known as “ deficient places “. If a miner or a pair of miners obtain in the cavil a place where they cannot win, or claim they cannot win a tonnage of coal daily, which will give them on contract, a payment which is, in their opinion,- sufficient having regard to the average earnings of contractors in the pit, they claim the daily wage rate instead of the contract rate. The managers state that, in many cases, this practice places an undue burden upon their operations and increases the cost of production ‘by.- substantial amounts, by raising the payments per ton of coal produced and by decreasing the output of the mine and thus increasing working on costs. They maintain that often’ it is not the place but the man that is deficient, and submit in proof that tile places which have been deficient when occupied by one pair of men give satisfactory output after the next cavil, when other men work in such places. Inspection of pay-rolls in the South Coast pits reveals figures which show the importance of this aspect of “ consideration “ payments. For example, the following may be taken, being an extract from a recent payroll :-

The last instance represents the production of 15 tons of coal in a total of fifteen manshifts for one pair of miners, and the “ consideration “ is the amount of money required to make up the earnings of the men to the shift rate of 19s. 3d. or, in other words, each of these men would have earned on contract approximately, 4s. 2d. per day.

Managers state definitely that this practice is an unjustifiable charge on their costs and represents (id., and more per ton on all coal produced, and that, if they were allowed the power of management normal to other industries to dismiss or suspend men who are not, in their considered opinion, doing a fair day’s work, this serious trouble would soon disappear.

On the other hand, the men’s representatives claim that there is little inducement for the men, in many cases, to strive for an increased output owing to the low rate per ton set for contract work. The opposite view submitted is that the daily rate is too high compared with earnings under contract.

Obviously the ease with which a certain minimum tonnage of coal can be won from any particular working face varies, but, unfortunately, the general attitude of mind within the industry is such that little “ give and take “ on these matters exists.

A most serious example was given by the manager of the ‘Elrington colliery in the Maitland field, where the terms for contract work could not be agreed upon between the management and the local lodge, so that from time to time the operation of coal-winning was commenced, all* coal was produced by daywage miners. The evidence was to the effect that the local lodge had prescribed an output of two skips (approximately equal to 32 cwt. of coal) per miner per shift, and that by actual proof, nearly 7 tons could reasonably be produced per miner per shift in less than the ordinary working period underground. In on actual case, two men produced seventeen skips of coal between 9 o’clock in the morning and “ knock-off “ time in the afternoon. The manager stated that 9 tons, approximately, per shift would be a reasonable output under contract, based upon averages in similar conditions at adjoining collieries.

In the State mine at Lithgow, an unofficial “ rule “ appears to be that a “ contract “ miner on shift work in, for instance, a “ deficient “ place shall not produce more than three skips of coal (equivalent to 3.5 to 4 tons), whereas the average output per miner on contract ranges between 8 and 10 tons per shift. In the Maitland field, we understand that a miner on the daily-wage rate usually fills about half the amount filled by the average contractor, but, in some cases less than this amount is obtained - for instance, at Elrington, as above mentioned.

And yet this was One of the industries in support of which the present Government fought the last election on the ground that the men engaged in it were not being justly treated. 1 cite also the case of a mine manager who, in order to demonstrate that the men were not giving an output that might reasonably have been expected, himself worked alongside two of his men and doubled the output of coal without any difficulty. Then the secretary of the lodge ruled that no man was to work with the manager.

In the light of these experiences what faith can we have in this measure, which proposes to apply the same industrial principle to the whole of our industries? I am not prepared to support the provision which places judicial power in the hands of the conciliation commissioners. Actually to call them conciliation commissioners is a misnomer. If their function is intended to be that of conciliation, their powers should be limited as under the New Zealand act. They should not be vested with judicial authority, because, in my opinion, they will not be fitted for the exercise of that power.

The other matter, to which a great deal of attention has been directed, is the elimination of the provision requiring a judge to consider the economic effects of awards on industry generally. I am prepared, in view of the latest announcement of Chief Judge Dethridge that he would always give consideration to the economic effects of awards, to support the Government on this point. I do not think it can be urged that legally, if it is repealed, a judge will consider it as a direction to disregard such considerations in future awards. For this reason I am prepared to allow the provision in the bill to stand. Otherwise I should not support it.

Senator CARROLL:
“Western Australia

. - There is no doubt that it was the arbitration issue which sent the previous Government to the country, but I am not quite so certain that the election was fought on that issue. If it was, why did the Labour candidates, during the campaign, make such strenuous efforts to introduce other important subjects to cloud the real issue ? No one can deny that, during the election campaign, much more attention was directed to the proposals of the previous Government to tax the moving picture industry. No doubt they found that subject a much better electioneering cry. I combat the statement that the Bruce-Page Administration proposed to abolish arbitration. Every one knows that it had no such intention. I t appealed to the people to endorse its action with regard to the dual system of arbitration which, it contended, was having a most pernicious effect upon industry in Australia. Whether or not the action of the Government was wise is another matter. It is clear, however, that the Bruce-Page Administration had no intention of abolishing the system of arbitration. No honest Labour man can come to any other conclusion. But one other influence operated to the disadvantage of the previous Government at the last election. No one can doubt that the full weight of the manufacturing interests was behind the present Government during the campaign, and shortly after its return to power there was much jubilation in the ranks of the manufacturers because of the extraordinary increases made in tariff duties for the protection of Australian secondary industries, which the manufacturers considered to be in the best interests of the Commonwealth. Certainly this act of policy was in the interest of the Australian manufacturers. But, having got what they set out to obtain, those most prominently connected with our secondary industries now find that the Government’s arbitration proposals are not to their liking, so they are deluging honorable senators on this side with piteous appeals to save them from their erstwhile friends. I draw the attention of honorable sena tors to a pamphlet entitled The Economic Position of Australia, which purports to be , a copy of a letter sent to the Prime Minister by the Australian Industries Protection League Signed by T. S. Nettlefold, president, and J. Hume Cook, secretary, it deals with the economic position of Australia, which it deplores, and points out several of the reasons for our present position. I quote the following extract : -

Other factors contributing to the present economic state of affairs arc connected with the Industrial Laws of Australia. The facts may be briefly set out as under: -

A very large proportion of the elec tors of Australia are employee* who obtain their means of livelihood either by way of wages 01 salary.

These electors and their sympathisers - approximately 80 per cent. of the voting strength of the Commonwealth - have caused machinery to be brought into existence for the regulation of employment.

Arising therefrom, wages, salaries, hours of work and other conditions have been fixed by law.

A a consequence, the general costs of production and distribution arp greater than in other countries.

That is the considered opinion of the Australian Industries Protection League. Having arrived at that conclusion, that body gives some indication of the means whereby the unenviable economic positionof Australia may be overcome. The pamphlet contends, “ That every possible step should be taken to reduce production costs.” I believe that the ex-Prime Minister and his government came in for a great deal of odium, because they made a similar recommendation. It was claimed by their opponents that they were actuated by a malign design to reduce the wages of the workers. Yet here is the Australian Industries Protection League, which believes in high protection and consequently in high wages, making use of the same words, and urging this Government to take every possible step to reduce production costs. The pamphlet continues -

Every possible step should be taken to reduce production costs. If this be done there are several secondary industries which could build up an export trade.. Tanners, for example, could sell very large quantities of leather abroad, particularly in England, where the quality of the Australian product is already admitted, ‘ if only the prices could be somewhat reduced.

Amongst other means for the reductionof production costs, without reducing wages, the following are suggested for serious consideration: -

  1. The fixing of a 48-hour week as a standard.
  2. Payment by results, based upon the existing award rates, to be allowed in all industries.
  3. The abolition, or at least, the reduction of payment for holidays and picnic days. The latter are usually very poorly attended. Most awards cover eight or nine such days annually. They involve not merely the direct monetary loss which the forced payment of wages involves, but they reduce the output, and so increase thecost of the article to the public.

I commend those very serious reflections to the Government. I do not see any provision in the bill to give effect to any of them. The Government is apparently perfectly satisfied about one of two things, either that it can bring the country round to the position it ought to be in without making any effort to reduce the costs of production, or that the costs of production must be reduced and industry regulated, on the lines suggested.

There is another point in the bill upon which I desire to speak at this stage. Itconcernsthe proposal of the Government to appoint conciliation committees and commissioners. Clause 9 reads - (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. (2.) Each conciliation commissioner shall, subject to this act, be appointed for a term of five years, and be eligible for reappointment.

So far as I can see there is no limitation to the number of conciliation commissioners who may be appointed. Also, there may be only two or three conciliation committees, or quite a number of them. Whether they be few or many, they are definitely to be appointed as salaried officers of the State for the specific period of five years, subject to reappointment at the expiration of that term.

I am rather surprised that the Government did not take into consideration the practice that obtains in Canada. That is a British dominion somewhat comparable to Australia in respect of many of its activities. Most people will admit that Canada is comparatively free from labour troubles. It has a record in that respect which all Australian legis lators and people generally should envy. In the Industrial Disputes Investigation Act of that country provision is made for the appointment of conciliation committees, but upon an entirely different basis from that suggested in this bill. Whenever there is. a dispute, or likelihood of dispute, a conciliation committee or board, as they term it, may be appointed. It consists of three persons, one appointed by the employer, the second by the employees. Those two select a third person to act as chairman. The board sets to work in an endeavour to adjust the existing difference. If it is unsuccessful in its efforts, the matter is referred to the Minister for Labour. I spoke to the Canadian Minister for Labour, the Honorable Patrick Heenan, on the subject, and he said that during his term of office he had never had occasion to settle a dispute after a conciliation board had dealt with it.

Section 6 of the Canadian act provides -

Whenever any dispute exists between an employer and any of his employees, and the parties thereto are unable to adjust it, either of. the parties to the dispute may make application to the Minister forthe establishment of aboard, to which the dispute may be referred under the provisions of this act.

There is also a condition precedent to the establishment of conciliation boards, contained in section 16 of the act. It provides that whenever an application is made for the appointment of a conciliation board -

A statutory declaration shall accompany the application for the establishment ofa board, setting forth that, failing an adjust ment of the dispute or a reference thereof by the Minister to a board, to the best of the knowledge and belief of the declarant, a lockout or strike will be declared, and, except where the application is made by an employer in consequence of an intended change in wages or hours proposed by the said employer, that the necessary authority to declare such lockout or strike has been obtained; or wherea dispute directly affects employees in more than one province and such employees are members of n trade union having a general committee authorized to carry on negotiations in disputes between employers and employees and so recognized by the employer, a statutory decclara tion by the chairman or president and by the secretary of such committee setting forth that failing an adjustment of the dispute or a reference thereof by the Minister to a board to the best of the knowledge and belief of the declarants a strike willbe declared that the dispute has been the subject of negotiation between the committee of the employees and the employer, or that it has been impossible to secure conference or to enter into negotiations, that ali efforts to obtain a satisfactory settlement have failed, and that there is no reasonable hope of securing a settlement by further effort or negotiations.

When the board has dealt with the dispute, made its finding and presented its report to the Minister, it ceases to exist. Canada has no permanent board of conciliation. If trouble again occurs another board is appointed. Those bodies fulfil all the conditions asked for by Senator Hoare last night when he suggested that our committees should be composed of men thoroughly conversant with both sides of the trouble ; men who knew from personal experience exactly what they were dealing with and talking about, and whether the remedy proposed could be applied successfully.

I recognize that the Government has a mandate to bring down an Arbitration Bill. But because it was returned with a big majority in another place, it does not necessarily follow that honorable senators shall accept whatever the Government may offer in the way of industrial legislation. I want to say to Senator Dunn that .while we on this side of the chamber are no more anxious than he is for a double dissolution, if it is forced on us we shall not shirk the issue. We have no intention of swallowing our principles and accepting any legislation that the Government brings down because of a fear to go to the country and account for our stewardship.

Senator Hoare:

– The honorable senator will “ dare to be a Daniel “ ?

Senator CARROLL:

– I have a great admiration for Senator Hoare and I submit that he would come to no harm if he followed the example of Daniel on all occasions. While_the Opposition is fully conversant with the fact that the Government has a right to continue in the field of federal arbitration, we contend that the people did not state that they wanted this particular bill. They were not consulted on that point.. We shall exercise our right to criticize the measure, and will endeavour to induce the Government to improve it.

Senator GUTHRIE:
Victoria

– I believe in the principle of arbitration. At the same time I prefer round-table conferences as a means of settling disputes. I have been engaged in business for a long period, and I have employed a good deal of labour. It has always been my experience that if you can get the parties concerned around a table to discuss the trouble, there is very seldom any necessity for men to go to the extreme of a strike. History has proved that strikes have been damaging to the country, and particularly to the strikers themselves. The first persons to suffer in any industrial upheaval are the wives and families of the strikers. They suffer first and last, and more than any one else. While I believe in round-table conferences for settling disputes, I realize that some form of arbitration is necessary. I am not one who believes that we should go back to the old days before arbitration. I well remember my own experience as a young man. I was, perhaps, not wonderfully efficient ; but, although I worked hard and for very long hours, especially during the wool season, I received no pay at all for the first year, and in the second year only 10s. a week. Remembering those days, I do not advocate that we should go back to the time when wages had no relation to the reasonable requirements of a man, a woman, or any employee. At the same time, I am of the opinion that, this bill is retrogressive rather than progressive, as regards the real spirit of arbitration. If we are to have arbitration, surely it is only right that awards should be determined by trained and impartial judges after they have heard the evidence of both sides to a dispute. ,A judge who has a life-time appointment, and is therefore independent of political parties, is far more likely to sift the evidence judicially, and to arrive at a proper decision, than is a commissioner, without legal training, who, under this bill, will be appointed for a term of five years by the Government of the day. Such conciliation commissioners, having no security of tenure, cannot dissociate themselves altogether from political parties. The Australian Workers Union, the biggest trade union in Australia, whose president is our esteemed friend, Senator Barnes, provides one of the best examples of lawabiding trade unionism. That union has generally abided by the decisions of the court, and for that reason has done more for the arbitration system than has any other union- in Australia. I am sorry that an honorable senator, who .claims to have been at one time a member of that union, now appears to be the chief obstacle to the settlement of the shearing dispute, in that, instead of endeavouring to promote goodwill in industry by conciliation and arbitration, which this bill purports to do, he is said to be busy inciting the members of the Australian Workers Union to resist a recent award of the Arbitration Court.

Senator Barnes:

– On what evidence does the honorable senator make that statement f

Senator GUTHRIE:

– On the evidence of all the daily newspapers, including, I believe, the Labor Daily, which the Minister is more likely to believe than the Argus or the Age. Who are the men likely to be appointed as conciliation commissioners ? It is more than probable that they will be men associated with some political party at the time of their appointment. Notwithstanding that, in the opinion of the Attorney-General (Mr. Brennan), there are plenty of judges available to do the work of the Arbitration Court, these appointments are to be made. It has been suggested that men endowed with common sense rather than men with legal training should determine disputes. Is it contended that a conciliation commissioner, appointed for a term of five years, will be endowed with more common sense than is possessed by a judge of the Arbitration Court ? In my opinion it is wrong to vest conciliation commissioners with the powers of a judge. It is all very well to say that the conciliation committees will consist of men selected from both sides in industry; but the chairmen of such committees will be chosen by the Government for the time being in office. It will probably happen that the chairmen of these committees will be supporters of the government in power at the time of their appointment. What is the position in Victoria to-day? The Premier of that State has intimated his willingness to consult the Trades Hall before introducing any legislation.

I am a strong believer in round-table conferences as a means of settling dis putes, in the system of payment by results, and in the profit-sharing system. I have found the profit-sharing system to be good for both the employer and the employee. I could give numerous instances in which men employed by me in the Northern Territory have done very well out of the profit-sharing system. I shall, however, give only one instance. I engaged a drover, who had been in my father’s employ for a number of years - a fine man who had given excellent service as a drover - to take 2,000 head of fat bullocks from the Northern Territory to Adelaide. He was willing to undertake the job at the then ruling rate of 2s. 6d. per head for every 100 miles travelled. I felt that if he were engaged on that basis, he would be tempted to rush the cattle through as quickly as possible, because it would not be to his advantage to tarry on the road. I therefore offered to pay him the recognized rate, plus either 10 per cent, or 20 per cent. - at the moment I forget which - of the net returns over and above the agreed value of the cattle at the starting point. The drover thought the offer was liberal and suggested that the bullocks should be valued at £8 each in the Northern Territory. I said that I would be content to value them at £5 each. By the exercise of great skill, he got those cattle to Adelaide in prime condition, and as a result of the arrangement entered into he received about £1,000 more than he would have been paid if no special arrangement had been entered into. I admit that that was an extreme case; but I instance it to show the advantage to a worker of getting the basic wage, plus a share in any wealth that he helps to create. I am also a great believer in the share-farming system. I mention these matters to show that, under a system or arbitration, it is possible to make arrangements which, will benefit both employer and employee. I have often stated that it is the duty of employers and employees to pull together in industry. If harmonious relations exist between them the results are better for them individually, as well as for the nation as a whole, than if they are constantly fighting each other. I have always regarded strikes as a curse.

This bill repeals the penal clauses of the existing legislation. That will not tend to prevent strikes. But we cannot do away altogether with penalties for disobedience of the awards of the courts. If men - either employers or employees - flout the decisions of the court they should be punished in some way, even as men who incite to violence should be punished. During the timber-workers’ strike, and also in connexion with the watersideworkers’ strike, there was a great deal nf intimidation of volunteer workers by organized mobs. In some cases, violence was used. In my opinion, it would be n fatal mistake for any government to disregard the necessity for penalties for disobedience of awards of the court, or for inciting to violence. I was delighted to hear Senator Hoare say that, if we are to have arbitration, both sides to a dispute must be prepared to abide by the (Incisions of the court. Unfortunately, that has not always been the case. We Iia vo had examples of employees flouting awards of the court which they were so keen to create. There have been instances of unions openly flouting awards given by judges at whose appointment they rejoiced. I agree with Senator Hoarethan whom there is’ no better Labour man in Australia - that arbitration awards should be obeyed. It is in that respect i.bat arbitration has almost completely failed in the past. We know what Senator Bae is doing at the present time, and what Mr. Lewis, the member for Corio, in another place, did during the timberworkers’ strike. Because they followed the advice of agitators, 80 per cent, of iiic men who took part in the timberworkers’ strike are practically starving to-day. The same is true of many of the waterside-workers and the coal-miners who participated in the disastrous strikes i’f recent years, when awards of the .Arbitration Court were flouted. I repeat that those who suffer most in an industrial upheaval are the wives and families of the strikers.

Owing to the- serious decline in the price of metals, the rich, magnificently.equipped, and well-developed mines at Broken Hill cannot carry on, except at a huge loss, unless the men are prepared to share to some extent in the present economic depression by accepting a small percentage reduction in their wages. The wages paid in the mining industry in

Australia are perhaps the highest effective wages paid in any part of the world ; but, notwithstanding this, the men engaged in the Broken Hill mines have declined to work. The percentage of unemployment in Australia to-day is officially given at 18$ per cent., which is the highest recorded in our history; but the unofficial figures would probably show that more than 20 per cent, of our people are unemployed. The official figures relate only to members of trade union organizations, but as there is a large number of skilled and unskilled workers who are not members of trade union organizations, we can safely assume that the percentage of unemployment is considerably higher than the official figures disclose. Despite « the general depression and the prevalence of unemployment, the men engaged in, the Broken Hill mines will not accept even a small percentage reduction. The mines have been closed down, and thousands of men in the mining industry, and those engaged in Other activities with which mining is closely allied, have been thrown on the unemployed market.

It is also regrettable that a number of shearers have declined to work under a recent award of the Arbitration Court. During my pastoral experience, which extends over many years, I have always found shearers reasonable men. I freely admit that their work is of a more or less skilled nature, and is undoubtedly hard work. I have never advocated low wages for shearers, and have said that, in comparison with the rates paid to unskilled workers, such as “ rouseabuots,” and some others engaged in shearing sheds, they have not in the past been over-paid, neither have the skilled wool-classers.

We are proud of our high standard of living: but a reduction in wages does not necessarily mean a lower standard. We should all aim at lowering the cost of living in Australia, and in view of the present prices of principal necessary commodities, there should be a rapid decline in this respect. The average price of mutton during the last twelve months has been 3d. a lb., and the present price of wool is 9 id. a lb. Wheat is being sold at from 3s. Id. to 3s. 2d. a bushel at railway sidings, or 3s. 10d.-3s. lid. a bushel at seaboard. With such low prices for wheat, mutton, and wool, meat. clothing and bread should be very cheap. When the retailers are asked why the prices are high, > they contend that they are due to the “wages which they have to pay under Arbitration Court awards. Such a contention is justified up to a point, but I am still strongly of the opinion that, in view of the prices of practically all primary- products, the cost of living should be substantially reduced.

Provision is made in the bill for the deletion of the section which provides that a secret ballot shall be taken before the members of a. trade union organization engaged iu an -industry in which industrial trouble arises go on strike. I heartily support the opinion expressed by Senator Hoare, who clearly showed how advisable it is to retain in the act the section relating to a secret ballot. There have been some failures in this respect; but that is no reason why the section should be deleted. It is only fair to retain this provision, as a strike directly and indirectly affects thousands of persons, and inflicts terrible hardships, not only upon those engaged in the industry concerned, b.it upon many other unfortunate persons. No one wishes to see deserving people .unemployed.

Senator Hoare said that he presided hi, a meeting of unionists at Port Adelaide culled to consider whether they should go on strike or not. When a. show of bands was taken, only one man ha’d the courage to vote against the strike. In reply to a question, he said that there was nothing to prevent a secret ballot being taken. It was taken, with the result that only about six of those present voted for going on strike. I was delighted to hear Senator Hoare give that practical illustration of the advisability of retaining the section providing for taking a secret ballot, which in many cases may result in proven ting an industrial upheaval and a great deal of hardship to a large section of the people.

A strike in the shipping or coal industry, for instance, may have serious consequences to the workers, but does not always result in any serious financial loss to the employers. In the event of a maritime strike the shipping .companies have only to increase the freight on, say, wool or meat, by id. a lb., or on fruit by 6d. a case, to recompense them for the money they have lost in consequence of their ships being held up or by having to pay increased wages under an award of the Arbitration Court. The producers and consumers have to meet the loss. The men who go out on strike for months, however, suffer great hardships, and are unable to recover, even if they secure an additional rate, the money which they have lost by reason of their longcontinued idleness.

An amendment is also to be made in the existing act, by deleting the provision which gives an Arbitration Court judge authority to take into consideration the economic effect of an award upon industry. It is about time we faced economic facts, and planned our political and industrial course accordingly. What are the facts regarding the sheep and wool industry, which is undoubtedly the most important in Australia? For the last five years sheep have been responsible for 50 per cent, of our total exports. What is the position in that greatest of all industries to-day. I propose to give a few facts, and to quote from the remarks of Judge Dethridge in giving his. award in the shearing industry. Senator Dooley, in supporting his argument that the shearing rate should have been higher a few years ago, quoted inaccurate wool prices. I remind the honorable senator that the shearing rate was once 15s. per 100; but, owing to changed conditions, the rates have been more than doubled. When an award of 45s. a 100 was given in Queeusland, the judge definitely stated that the high rate was awarded because the industry was flourishing. At that time the awardrate in other parts of Australia was 4.1s. a 100. Senator Dooley quoted, in good faith, some fantastic figures regarding the price of wool. He gave the record prices for 1927-28 for an odd bale from a clip of 3,000,000 bales.

Senator Dooley:

– They were taken from the Commonwealth Y car-Boole.

Senator GUTHRIE:

– The honorable senator gave the record prices for scoured lambs’ wool; but the proportion of that wool in the average Australian clip would be only .005 per cent.

Senator Dooley:

– I- also gave the the prices for greasy merino wool.

Senator GUTHRIE:

-The proportion of that wool at the price he quoted would not be one bale in 100,000. Later I intend to quote the averages for the whole Australian clips to shown ti e trend of the wool market. I was appalled to read in yesterday’s cables from London the low prices which certain Australian exports are realizing. According to the cables, first quality Australian mutton is being sold in London at 3£d. a lb., out of which the seller has to deduct the cost of slaughtering, freezing, and shipping, which leaves no profit. Prime ewe mutton is bringing 3d. a lb. It will be seen from these prices that the great sheep and wool industry - which is more directly responsible for Australia’s prosperity than any other - is in a serious position. In these circumstances Judge Dethridge was justified in reducing the wages of those engaged in the industry. We have to compete with Argentine mutton, which is selling in London at from 2£d. to 3d. a lb., and New Zealand mutton, which is. bringing from 2Jd. to 4f d. a lb., which was a record price for the week. The case which was heard before Judge Dethridge, who gave his reserved judgment on 14th July, arose out of an application’ by the Woolgrowers Association of Australia for a reduction of 30 per cent, in the rates of pay for shearers, shed hands, WOOl.pressers and wool-scourers in four States, and a reduction of 35 per cent, in Western Australia. It was also claimed that station hands should not be covered by the award, or if they were that a reduction of 50 per cent, should be made.

The PRESIDENT (Senator the Hon W Kingsmill:

– Does the honorable senator intend to connect his remarks with the subject-matter of the bill?

Senator GUTHRIE:

– My remarks relate to the retention of the Arbitration Court and an award which it recently made in relation to the pastoral industry. Industrial upheavals have been dealt with very fully by other honorable senators, and I was about to direct attention to the grounds upon which the members of the Australian Workers Union objected to an award recently given.

Senator Daly:

– I rise to a point of order. I contend that, if the honorable senator is permitted to continue that line of argument) the debate will be interminable. I do not know what the action of the Australian Workers Union in the case referred to has to do with the bill. The honorable senator said he proposed to connect his remarks with the retention of the federal arbitration system. This bill does not provide for the abolition of the present arbitration system.

The PRESIDENT:

– The honorable senator will not be in order unless he can connect his remarks with the subjectmatter of the bill. Up to the present he has not done so.

Senator GUTHRIE:

– I was endeavouring to explain the economic position of the industry.

The PRESIDENT:

– The honorable senator has already done so at great length.

Senator GUTHRIE:

– This measure provides for an alteration in our arbitration system.

The PRESIDENT:

– If the honorable senator will only establish that connexion he will be’ in order.

Senator GUTHRIE:

– I wanted to give, if I might, the reasons advanced by Chief Judge Dethridge for a variation in the shearers’ award.

The PRESIDENT:

– If the honorable senator can connect what Chief Judge Dethridge said with this bill, I shall be very glad to hear it.

Senator GUTHRIE:

– The economic position in Australia to-day is such that there, is every justification for retaining the penal provisions of the Conciliation and Arbitration Act, so that the shearers may be deterred from going on strike, which unfortunately some of them have already done. In opposing a reduction in the shearing rate the shearers say that there has been no change in circumstances since the previous award was made, but in summing up the case the Chief Judge said that in 1924-25 Australia produced 776,000,000 lb. of wool, which sold for £81,000,000, an average price of 27.10d. per lb. for that year, whereas in 1929-30 a clip of 910,000,000 lb. sold for £39,000,000, an average of 10.40d. per lb. As a matter of fact, those figures are not exactly accurate, because apparently scoured wool has been included as well as greasy, and the final figures for the wool year ending 30th June were probably not available. The total quantity of wool dealt with for the year was 2,474,765 bales, of which 2,390,143 bales of greasy wool averaged in weight 306.41 lb., and in price 10.29d., say, 10£d. per lb. The average weight of greasy and scoured is 303.56 lb. The average price for the whole clip would, therefore, be 10.49d. For the previous .year 2,689,121 bales averaged 1.6-Jd. per lb. The average decrease in value for the year was thus over 6d. per lb., and to-day’s price compared with that of 1924-25 shows a drop of 18d. per lb. Judge Dethridge in his summing up, said: “Even if the average price increased to 12d. - - “ The average price for the past three months has been 9d., and the average value of the clip for the last three years would be £46,000,000, as against an average of £71,000,000 for the five years from 1924-25 to 1928-29 inclusive. As a matter of fact, there is little or no hope of the coming clip averaging 12d. It is more likely to be lOd. ; furthermore, a decrease in volume of 200,000 bales is assured. I am giving these “ fact3 to show that there is no justification for the repeal of the penal provisions of the act when there is an industrial dispute

in the pastoral industry at the present time. Because many men are defying the award of Chief Judge Dethridge, and are on strike, I want honorable senators to have the privilege of knowing the exact figures in relation to wool prices. I want them to know that during the last three months the price of wool, instead of being at the fantastic figure mentioned by honorable senators opposite, has averaged only 9.56d. per lb. It has averaged only 10.49d. for the last twelve months, including scoured wool. At that selling price wool cannot of course be produced at a profit; the loss on every pound produced is over 3d. This is another point in connexion with the bill. Surely a judge ought to take economic facts into consideration when making an award, but the bill proposes to deprive him of the right to do so. It is suggested by some honorable senators opposite that the economic position of an industry should have no bearing on an award, but I suggest that it is very necessary for a judge to take it into consideration, and the following figures have considerable bearing on the economic position of the pastoral industry: -

When’ Chief J udge Dethridge pointed out, as a justification for his award, that there is to-day a drop of £30,000,000 sterling in the Australian wool clip, he gave the average for several years, and an honorable senator opposite, who said that the award has been based on the figures relating to one year only, was quite wrong. I hope that, in the interests of all sections, the leaders of the Australian Workers Union will exhort the members of that organization to obey the award, otherwise the appeal clause provisions of the act will result in the Graziers Association prosecuting the men.

The PRESIDENT:

– The honorable member is completely out of order in exhorting members of an organization to take action under existing legislation, whereas the Senate is now considering legislation for the future.

Senator GUTHRIE:

– What” I should have said is that I hope the leaders of the Australian Workers Union will, exhort the men not to disobey an award as it exists.

The PRESIDENT:

– That has nothing whatever to do with the bill.

Senator GUTHRIE:

– Surely it has something to do with the proposal to abolish the penal provisions of the act. I was about to lead up to that. The Graziers Association has already prosecuted some members of the Australian Workers Union who are out on strike, and a fine of £5, with costs, has been inflicted in several cases. I am urging the necessity for retaining the penal provisions of the act. Without them we should never know where the Australian Workers Union and Australia’s greatest industry stand.

The PRESIDENT:

– I called the honorable senator to order for exhorting the officials of a certain organization not to take a certain course. He was distinctly out of order in doing so.

Senator GUTHRIE:

– I withdraw those remarks. I have no intention of doing anything to offend against the Standing Orders or your ruling, Mr. President. Chief Judge Dethridge, in his summing-up, stated that the average value of the Australian wool clip for the past five years had been £71,000,000 and that it had dropped £30,000,000,’ not on last year’s figures, but on the average of five years. He said -

If, after cutting down capital and management costs to the lowest possible amounts, the cost of production is still greater than the world market price, then there is no escape from the alternative - either the industry must decrease or wages rates must decrease. A decrease of ‘exports from Australia will for many years to come be disastrous to Australia and the wage-earners alike. If the wool industry is crippled all other industries will be more or less lamed. This is the staple industry of the country. The court mUd not blind itself to facts.

He then went on to give an award of 32s. 6d. per hundred for flock sheep and 65s. per 100 for rams. For Western Australia the rates fixed were 31s. 6d. for flock sheep and 63s. for rams. With no penal provision in the Arbitration Act, the Graziers Association would gain nothing by prosecuting men for disobeying the award given by Chief Judge Dethridge.

I am very , sorry that it was necessary for the judge to reduce wages, but I should like honorable senators .to remember that the present price of Australia’s greatest staple product is below pre-war rates, and that there has been every justification for the judge to reduce the wages, and for the members of the Australian Workers Union to lawfully abide by the decision. Instead of the leaders of the union advising the men to do so, their attitude is causing the men a great deal of concern. They do not know what to do. They are very anxious to get to work, because they can make £8 a week under the award, and every one realizes that the pastoral industry is of such paramount importance that it would be a national calamity if the shearing were held up. One of the means by which the men can be induced to continue work is the retention of the penal provisions in the act. Everybody is at a loss to know what to do. The mon are waiting a lead from the Australian Workers Union.

Senator Dunn:

– All this has nothing to do with ‘the bill.

Senator GUTHRIE:

– It has a great, deal to do with the bill. I am trying to show how necessary it is in the interests of the pastoral industry of Australia that the penal provisions in the act should be retained, so that men who disregard an award may be penalized if they refuse to go on with their work.

The Arbitration Court is blamed for the high cost of Irving. Most people blame it for the high price of bread, and they have a good deal of justification for doing so. The average price of wheat is now from 3s. Id. to 3s. 2d. per bushel and all that the wheat-producer gets out of the price of a 4-lb. loaf of bread is 2.7ld. The miller gets 1.17d., and the baker 8.12d.

Senator Dunn:

– “What is the price of wheat in New Zealand?

Senator GUTHRIE:

– The price of wheat in New Zealand is 5s. lid. a bushel. Yet bread there is only lid. for a 4-lb. loaf, whereas it is 12d. in Australia, with wheat at from 3s. Id. to 3s. 2d. per bushel to the farmer. When the flour miller is asked why he is taking such a big share he says that it is the result of high wages fixed by the arbitration court, and the baker, who is taking 8.12d. out of every 12d., the price of n 4-lb. loaf iu Australia, says that he is compelled to charge this high price, because of the high wages fixed by the Arbitration Court. While we may support some system of arbitration, we may still claim that it is faulty; but faulty as the present act may be, it will be a great deal worse if effect is given to the amendments which have been brought forward by the Government.

It is proposed to appoint conciliation commissioners for a term of five years. They will most likely be chosen from the ranks of some political party, and must, therefore, have some political bias. They are to be given the powers of a judge of the court. The idea is quite wrong; I take serious exception to it. I take exception also to the suggested abolition of the penalties for inciting to strike, or for general misbehaviour, and. likewise to the proposed deletion of the provisions relating to the holding of. secret ballots. In that regard I waa impressed by the valuable and concrete evidence given by Senator Hoare. He favoured the taking of secret ballots. It is deplorable that Senator Rae, who is associated with the Australian Workers Union, should be reported to be out at the present time inciting shearers to disobey the award given by Chief Judge Dethridge, and I am surprised fins] that Senator Barnes, the head of the Australian Workers Union, a man whom we all respect, has not seen fit to tell the members of his union that he believes in arbitration - he has always told us that he does - that the judge of the court -n evidence submitted to him has given his award, and that the men should abide by it. We find, however, that the member; of the organization do not know where they are. They declare they are waiting a lead from their leaders, but are not getting one.

Senator Thompson:

– Whom is Senator Rae representing?

Senator GUTHRIE:

– He is representing what he calls the rank and file of the shearers, and evidence is to be seen in all the newspapers that agitators are travelling about the country in motor cars inciting the shearers to strike.

The PRESIDENT:

– I do not think the honorable senator is in order in discussing that aspect.

Senator GUTHRIE:

– I was about to appeal to the head of the Australian Workers Union, Senator Barnes, to support the retention of the safeguarding provisions of the bill. If they are not retained there will be no way of punishing the men who are disobeying an award of the court. I trust that the leaders of the Australian Workers Union will come right out now and uphold arbitration. We are generally in favour of arbitration ; at any rate I am ; and when an award is given we should abide by it, and not allow it to be disregarded. Having explained why I think this bill is faulty, and why I am opposed to certain of its provisions, particularly those relating to the appointment of the socalled conciliation commissioners, the- proposed repeal of the penal provisions in the act, as well as those relating to the taking of the secret ballot, I shall not detain the Senate further.

Senator BARNES:
Assist an; Minister · Victoria · ALP

– I do not intend to speak at length on this measure, because, for one reason, it has been fully discussed by other honorable senators. Om system of arbitration has been in operation for very many years, and 1 think we can claim that tho organizations of labour are chiefly responsible for its enactment. My- own organization spent many thousands of pounds and much effort on the part of its best men to get the existing law placed on our statute-book. In certain quarters, the opinion is expressed that arbitration has failed. We have heard this expression ‘of view, not only from honorable senators opposite, but also from, interested quarters outside, and in the press of this country. I do not endorse it, and I think . an examination of the facts will support my contention. One honorable senator said, during the debate, that during the last 25 years, Australia had not made as much progress under arbitration as it would have made under the industrial conditions of the preceding 25 year3. Surely honorable senators do not believe a statement of that nature. If they do, all I can say is that they know very little about the industrial history of the Commonwealth, and I suggest, also, that they have little thought for the welfare of our people. It appears to me to be a somewhat loose statement, and certainly one without any foundation.

Senator Thompson:

– The United States of America is doing very well without arbitration.

Senator BARNES:

– I have no doubt that America and certain other countries are doing very well without arbitration, as the honorable senator has suggested, but industrial conditions in Australia prior to the establishment of the Arbitration Court, indicated the urgent need for an improved method for the settle1 ment of industrial disputes in this country

Senator Reid:

– Arbitration has not succeeded in settling disputes.

Senator BARNES:

– I say, without hesitation, that, by means of arbitration, we have settled 90 per cent, of the industrial disputes that have occurred since the appointment of the court. To-day nearly all of our industries’ are being conducted peacefully under awards of that tribunal. My own organization is working under about 123 awards, State and Federal, and there has been no serious trouble until quite recently.

Senator Reid:

– .-That is because this is the first time the honorable senator’s union has had to face a reduction in wages.

Senator BARNES:

– The honorable senator is in error. In 1922, the rate for shearing was reduced from 40s. per 100 to 30s., but the court quickly realized how impossible it was for the employees to work under the reduced wage, so within a week- a new award fixed the amended rate at 35s. per 100. Even this rate, in the opinion of the men, was still 5s. too low, but we could not expect the court to amend its award twice within such a short period. The award caused a strike. The latest award is, of course, fresh in the minds of all honorable senators. In 1927 the court was approached by the employers and an award, in which the employees acquiesced, was made for a period of five years. The industry was working peacefully under that award until recently, when the employers made an application for a variation. The court has now decided that the allowance of 15 per cent, in respect of lost time, fixed in the 1927 award, shall be reduced to 12£ per cent. This allowance, I may explain, is made to compensate the employee for the loss of time incurred in proceeding from his home to his work and returning. Can any sane person argue that the percentage of time lost now is less than it was three years ago?

Senator Guthrie:

– Many shearers now travel by motor car.

Senator BARNES:

– No. It is admitted that the industry is better organized than it was some years ago, but I remind the Senate that employees in the pastoral industry lose much more time during poor than in good seasons, because the flocks then are not so numerous. In the new award the allowance for piece-work is 10 per cent., representing a decrease of 50 per cent., as compared with the .1927 award, when the allowance was 20 per cent. The old award allowed 10s. a week for fares. In the new award there is a reduction of ls., notwithstanding the fact that fares have increased within the last three years.

Senator Herbert Hays:

– But the honorable senator believes in arbitration?

Senator BARNES:

– Yes ; and I have fought for the principle all my life. In the 1927 award the average weekly tally was fixed at 440.’ In the latest award it is 480. Who can argue that the conditions during the last three years justify an alteration such as that? The allowance for skill in 1927 was 15s. lOd. a week, and now it is only 9s.

The PRESIDENT (Senator the Hon W Kingsmill:

– I have allowed the honorable senator considerable latitude. I hope he will now discuss the bill.

Senator BARNES:

– I am aware of that, Mr. President. I am endeavouring to explain the need for the introduction of this measure, and I am adducing certain facts in relation to the last award in justification of my contention. I am trying to show that, as at present constituted, the machinery of the court is not operating in the best interests of the country, and that it is necessary to amend it. In the latest award the shearing rate has been reduced by 8s. 6d. per 100. This represents to- the. pastoralist £40 for every 10,000 sheep shorn. In a flock , of 50,000 sheep the reduction means a gain to the pastoralist of £200; whilst the shearer will suffer a reduction in wages of £2 a week. Can men be expected, to sit down quietly and accept such a decision as this? The award is, I submit, ample justification for the in*troduction of this bill, the purpose of which is to amend the machinery for the settlement of industrial disputes in the hope that the act will function more satisfactorily in the future.

Senator Herbert Hays:

– Does the honorable senator think that a concilation commissioner would have given the men a more favorable award?

Senator BARNES:

– I do not claim that he would.

Senator Daly:

– A conciliation commissioner would not have done as much to cause employees to be dissatisfied with piece-work.

Senator BARNES:

– I have had long experience in industrial matters. I have taken part in a great number of conferences between members of my organization and their employers, and we have always been able to reach an agreement amicably. On some occasions when we have appeared before the court the judge said - “ There appear to be in this claim many matters which I consider should not occupy the time of the court. I suggest that the parties confer and endeavour to reach an agreement. They may then come to me for an award re specting those matters upon which they cannot agree.” That course has been adopted on several occasions, and it has’ always worked very satisfactorily. We take the view that this method should bo applied to all sections of industry.

Senator Sir William Glasgow:

– All that the honorable senator has related has been done under the existing act.

Senator BARNES:

– Yes; and it has proved such an effective instrument for the settlement of industrial disputes that we consider the machinery in the act should be improved in this direction. One reason why the last award is not so satisfactory to the members of my union is that we were not allowed to put evidence we had before the court.

The PRESIDENT:

– The honorable senator is out of order.

Senator BARNES:

– This bill will prevent a judge, who may have only a limited knowledge of industrial conditions, from being in a position to make an award which may involve the country in a great deal of trouble. It is very rarely that we hear that it is because of the fault of a judge that the country is embroiled in industrial trouble. The blame is usually thrown upon the organized workers. It is to eliminate that kind of thing that” this bill is brought down for the consideration of honorable senators. It is hoped that the Government will- be able to appoint to these committees men with a practical knowledge of industry; a concern for the country; and a desire that our industries should be conducted as smoothly as possible. Surely honorable senators opposite do not contend that it is impossible for the Government to do that? What reason has anybody to be afraid of the objective of the Government? It is not likely that it will choose men eager to sell their souls to the highest bidder. I remind honorable senators that behind those men with a practical knowledge of industry will be the judges, to whom they may refer for legal advice on legal technicalities.

Senator Sir George Pearce:

– -Is it proposed to appoint a shearer as commissioner on the committee that will deal with the shearing industry?

Senator BARNES:

– I do not know what course will be followed in that instance. I shall have only a minor voice in whatever appointments are made. But I take it that the best judgment of the Government will be brought to bear on the matter. It is not likely that it will appoint any Billjim to the position, and so create a trouble greater than that already existing. That is unthinkable.

Senator Sir George Pearce:

– The honorable senator said that men with a practical knowledge of industry will be appointed. How could a man. have a knowledge of all industries?

Senator BARNES:

– The purpose of the hill is to appoint quite a number of men most of whom will have a practical knowledge of, at least, the big industries that apply to the Federal Court to have their troubles adjusted. By appointing a sufficient number of conciliation commissioners delay will be avoided, and cases will be determined with all despatch. Every honorable senator knows that in past years, when the industrial movement has been anxious to abide by and take advantage of our industrial law, unions have gone to considerable trouble and expense to frame their plaints for submission to the court, but they have been aggrieved by delays in hearing their cases that have extended for as long as two years. In the interim employees, still being paid at old rates, have been subjected to the higher cost of living, and have had no redress. They have loyally abided by their awards, but that delay has embittered them and has been one of the most fruitful sources of industrial unrest. I definitely hold the opinion that it would have paid the Commonwealth to appoint ten arbitration judges at the usual rates if that would have resulted in an expeditious clearance of cases before the court. It is because of the dearth of arbitration judges, or because they do not work the long hours that so many honorable senators opposite advocate, in respect of the workers, that delays have occurred. A case relating to the Victorian railway men has been before the Arbitration Court for two years and is not yet finished with.

Senator McLachlan:

– Are there any arrears of work in the Federal Court at the present time?

Senator BARNES:

– Oh, yes.

Senator McLachlan:

– Then it is a pity that the Government has seconded a judge for other duties.

Senator Guthrie:

– There was no delay in hearing the shearers’ case.

Senator BARNES:

– No; that work was done promptly and faithfully, according to the views of honorable senators opposite.

SenatorReid. - Sir John Quick has been hearing the case of the’ railway employees for over two years.

Senator BARNES:

– Yes; that is the kind of thing that embarrasses and annoys the employee. This bill seeks to overcome it.

Senator McLachlan:

– The honorable senator surely would not advise having two judges working on a case in relays.

Senator BARNES:

– No; but if there were sufficient men on the job, cases would be heard promptly, to the benefitof all. Any big industrial trouble that concerns my union, the Railways Union, or any other big organization, must seriously affect every man, woman and child in the community. That is why these matters should be settled expeditiously and, preferably, with the aid of people who have the confidence of all, the best advocates and the best brains available. It is no use asking me, although I am not bigoted, if the gentlemen already on the job are competent. I should have to say no.

The PRESIDENT:

– Order!

Senator BARNES:

– A good deal has been said about the probable economic effect of an award on industry being taken into consideraiton when a claim is heard. Notwithstanding section 25d of the principal act, that has been the practice of the court when it meant the reduction of pay or lengthening of hours, but I cannot recollect its being applied when the principle meant increasing wages and decreasing hours. There is only one factor that influences the court to-day, and that is the cost of living. No economic circumstances were taken into consideration when the pastoral industry was enjoying the greatest period of prosperity that it ever experienced, when pastoralists were amassing millions of pounds in the aggregate, obtaining prices undreamed of even in the wildest stretches of their imagination.

Senator Sir William Glasgow:

– Does not the honorable senator recollect that the Queensland employees in the industry participated in the benefits when prices were high ?

Senator BARNES:

– The Queensland act contains a provision that enables the Arbitration Court judge to take into consideration the economic conditions of an industry. The late Mr. Justice McCawley did so on the occasion to which the honorable senator referred. I also recollect that on one occasion he reduced the wages of some members of the Australian Workers Union by 10s. a week because of the depressed state of the cattle industry in North Queensland.

Senator Sir William Glasgow:

– But lie did not reduce their wages below the cost of living rate.

Senator BARNES:

– It has always been accepted that no legislature would dream of allowing an arbitration court to grant a wage below the basic rate of living. Our basic wage has an interesting history. I remember when the late Mr. Justice Higgins, endeavouring to fix a rate of living that would enable a man, his wife, arid two children to live in what he termed “ frugal comfort “, determined upon 7s. a day. I frankly admit that Mr. Justice Higgins was a notable figure in the history of Australia. Working under great disabilities he performed magnificent work for the nation, and he has left a monument that will long endure, and of which any one might well be proud. Unfortunately, he was unable at that time to obtain proper information upon which to fix a basic rate. My own experience is that there was never a time in the history of this country when a man, his wife and two children could live on 7s. a day “in frugal comfort.” He would certainly participate in the frugality part, but I do not know where the comfort would come in. Up to that time, and for quite a while after, I was earning my living as a manual worker, but T am glad that I have never been forced to ask my wife and children to exist on such a wage. The basic wage originated by the late Mr. Justice Higgins has continued, being varied from time to time on account of the cost of living. Section 25d of the principal act provides that, when making an award, a judge shall take into consideration the economic position of an industry, but that the provisions of the sub-section “ shall not affect the practice of the court in fixing the basic wage.” Yet we now find our Arbitration Court working it great mischief to the country. Recently an award was to be determined and, because the Arbitration Court judge had not the power to make it below the basic wage he remitted the matter to a full court so that it might take the step denied to him under the act, and name a figure below the basic wage. It is very nearly time that Australians sat up, took notice, and insisted upon the provision of more efficient arbitration machinery. Honorable senators need not be afraid of this bill. I shall not be. I believe that it will work out very well in the interests of the community. I know that it was not evolved in five minutes, but that it has behind it the considered thought of the greatest men that we have in Australian industry. For years it has had our con,sideration, and we believe that at last we have evolved a measure which will eventually enable the industries of this country to be carried on in an atmosphere of peace. Surely no one in the country desires industrial trouble, particularly when he remembers how the miners’ lockout affected the whole community. It is our duty to endeavour to find some means of avoiding another such calamity. In this bill the Government is making an earnest attempt in that direction.

Senator Cooper said that men were sometimes prevented from joining certain trade unions. I have known of cases in which trade unions have placed restrictions on membership. I do not know the position now, but at one time a union could not be registered as an industrial organization unless its rules provided reasonable facilities for workers to join it. I think that that is still the case. If it is not, I, personally, should have no hesitation in supporting a provision to that end.

A good deal has been said about the secret ballot. The rules of every organization of which I have any knowledge provide for a secret ballot of its members being taken in respect of matters considered to be of sufficient importance to warrant such a step. The Australian

Workers Union, of which I know more than I do of any other union, has an election each year for its chief officers. That election is by ballot. Time after time that union has taken a referendum of its members on various matters. On two occasions, members were given the opportunity to say whether they were in favour of arbitration or direct action. The result of the ballot was emphatic; five out of every six of the members of the union favored arbitration. That is where the Australian Workers Union stands on the question of arbitration as a means of settling industrial disputes. In the case of minor offices of the union, a ballot of the whole of the members is not taken; it is considered sufficient to take a ballot of the members present at the annual meeting called for the purpose. The annual meeting of the Victorian branch of the union will be held tomorrow; the Sydney branch held its annual meeting a few days ago. In the case of a big organization like the Australian Workers Union, the taking’ of a secret ballot is not a simple matter. It takes six months to conduct a ballot of its < members, and it cost some thousands of pounds. For that reason the union objects to a provision for a secret ballot being included in arbitration legislation. The act which this bill seeks to amend entitles any ten members of a union to ask for a secret ballot. It should not be within the power of any ten men to put a union to such -trouble and expense.

Mention has been made of the practice of men seeking work having to notify employers that they are members of an organization. The experience of the Australian Workers Union is that a man seeking employment merely asks a prospective employer for a job. If he is given work, he expects to be treated in accordance with the awards in operation. Usually, such a person says nothing about being a member of an organization. Under the existing act he has the choice of telling his employer that he is a member of an organization, or of working at less than award rates. Under the bill, a man seeking employment need say nothing about his being a member of an organization.

Senator Reid said that the present Government had removed a judge of the

Arbitration Court from office. The fact is that the judge in* question was consulted and given the choice of retaining his old position or accepting the one to which he was subsequently appointed.

I take it that some of the gibes at the executive of the Australian Workers Union, in connexion with the present trouble in the shearing industry, have, been directed against me. The executive of the union has given careful consideration to the present situation in the industry.

The PRESIDENT (Senator the Hon W Kingsmill:

– The honorable senator is scarcely in order in referring to that matter now.

Senator BARNES:

– Then I shall say no more than that the executive of the union is still considering the matter.

I commend the bill to honorable senators, who, I believe, are willing to give it generous consideration. As practical men, they realize the desirability of having at the disposal of the nation the most efficient machinery for settling industrial disputes. The electors have said unmistakably that they want some efficient means of dealing with industrial troubles. Apparently, the machinery provided hitherto has not satisfied them, for at the last election they put into office a government pledged to improve the arbitration legislation then on the statutebook. I have had a long experience of industry, and, having given careful consideration to this bill, I feel that the proposals of the Government are likely to be successful in creating greater harmony in industry.

A good deal has been said about the Government’s intention to remove the penal clauses in the existing legislation. In my opinion, those clauses have served no good purpose. Most of the trade unions in the country would not care much if they were fined, because they would not have the money to pay the fine. Other unions, like the Australian Workers Union, which are supposed to be wealthy organizations, can, however, be punished in that way. Indeed, the Australian Workers Union has been fined in the past. I myself was fined £100 on one occasion, as was also Mr. Blakeley, a member of the House of Representatives, who waa then president of the Australian

Workers Union. We were told that if we again appeared in the court on a similar charge we should he given six months’ imprisonment without the option of a fine. Needless to say, we were not again found in the court. But we did not pay the fines ourselves. I do not think that the retention of penal clauses will assist in the settlement of industrial disputes. Penal legislation only irritates people who have no desire to be irritated. We are better without provisions of that nature. I confidently commend the bill to the Senate.

Senator HERBERT HAYS:
Tasmania

– The bill before us is a further attempt to improve a system which hitherto has, to a great extent, failed. Arbitration has not brought peace to industry, as the Assistant Minister himself has just admitted. The honorable gentleman referred to a recent award in the shearing industry, and said that the existence of such an unsatisfactory award by a judge of the court emphasized the desirability of appointing conciliation commissioners. By his remarks, the Minister could only have meant that if the shearers’, case had been heard by conciliation commissioners, instead of by a. judge of the Arbitration Court, the award would have been more favorable to the men.

Senator Barnes:

– If it had been heard by any . person with sense and a knowledge of all the facts that would have been the result.

Senator HERBERT HAYS:

– The Minister condemns, not the principle of arbitration, “ but an award made by the judge of the court. When informed that his remarks were out of order, he said that he intended to connect them with the conciliatory clauses of the bill, under which, in his opinion, a more favorable award from the men’s point of view would have been obtained. He said, further, that in certain respects the award was unfair and unreasonable. He argued that the reduction in the wages of the shearers was not justified. Such remarks coming from the president of the Australian Workers Union are significant. To-day’s Labor Daily, referring to the shearers’ strike, states that the shearers are being urged to mark time.

The PRESIDENT:

– The honorable gentleman is aware that two other honorable senators have already been called to order for discussing the shearers’ strike.

Senator HERBERT HAYS:

– The Minister who has just resumed his seat referred to it. He said that the strike would not have occurred if the case had been heard by a conciliation commissioner instead of by a judge of the court. In view of his statement, the report in the Labor Daily that the shearers have been urged to mark time suggests that they should do so only until this legislation has been agreed to, when their case will be referred to conciliation commissioners for decision.

Sitting suspended from 6.15 to 8 p.m.

Senator HERBERT HAYS:

– At the last general election the Labour party received a clear mandate from the people with respect to arbitration. On that occasion the members of the present Government and their supporters clearly expressed their opinions concerning the arbitration system, and said that if returned to power they would drastically amend the Arbitration Act. The Honorary Minister (Senator Barnes) in strongly advocating a system of conciliation said that under this measure there was every possibility of restoring peace in industry and securing to the workers that measure of justice to which they are entitled. In considering the subject of arbitration we must, however, take a general survey of the industries of Australia and determine to what extent they may be affected by our arbitration laws. If awards of the Arbitration Court are to be made without due regard to the economic conditions, nothing but disaster will follow in the wake of this legislation. It cannot be denied that in comparison with those of other countries our primary and secondary industries are in a most unsatisfactory state. What is the use of bolstering up our secondary industries by the imposition of high duties and the payment of bounties when they are quite incapable of exporting their surplus production at a profit.

Senator O’Halloran:

– What is the solution ?

Senator HERBERT HAYS:

– This measure will not. provide the solution. It is unreasonable to suggest that these amendments in our arbitration system are likely to bring about contentment or stability in industry. In order to solve the difficult, problem with which we are confronted in consequence of world-wide depression, a careful stock should be taken of the whole industrial situation as is being done in other countries. Our secondary industries and many sections of our primary industries are in a parlous condition. The exporters of wool and meat are compelled to accept exceptionally low prices and the outlook for wheat-producers is anything but promising. Under the Government’s fiscal policy, which includes the prohibition of importation of certain goods, the local market has almost reached the point of saturation. Although I intend to support the second reading of the bill, I am not sufficiently optimistic to believe that it will have the effect which its supporters anticipate. I cannot agree with the Honorary Minister who contends that if the shearers could have submitted their claims to a conciliation commissioner instead of to the Arbitration Court a dispute would have been avoided. The judge, in making his award, naturally took into consideration the economic position of the industry, and had he not done so tho position of the wool-growers would be hopeless. Does the Honorary Minister suggest that a conciliator would not have studied the economic position of the industry? Senator Dooley referred to the necessity to maintain a high standard of living in Australia; but what is the use of speaking of n high standard of living when 20 per cent, of the workers of Australia are unemployed. It is idle to believe that there is a high standard of living in Australia when such a high percentage of our people are subsisting on grants from the State or from organizations or individuals. A high standard of living can be maintained only when there is an almost entire absence of unemployment, and when a large majority of the workers ure actively engaged in reproductive work at remunerative rates. I cannot see anything in the bill which would have a beneficial effect upon the workers and incidentally upon the general community. Reference has been made to recent awards providing for a decrease of wages, but what is the use of awarding wages that an industry cannot possibly pay? It is preferable to conduct an industry with a lower wage rate than to allow it to go out of existence and thus cause further unemployment. I have no faith in the Government’s proposals. I have always contended that industrial disputes can be prevented and settled by round-table conferences at which the representatives of both parties confer under an independent chairman. If we are to have peace in industry as the result of industrial legislation, it is on those lines that we must proceed. I support the second reading, but there are certain amendments which I should like to see made in the bill, and if they are not made, I shall reserve the right to express my views upon the measure in the form in which it emerges from the committee stage.

Senator DALY:
Vice-President of the Executive Council · South Australia · ALP

– It is some satisfaction to the Government to know that, at least, its child is permitted to be born and to go into the committee stage, but from what I have heard from honorable senators opposite, my paternal instincts cause me to worry as to what is likely to happen to it by the time it emerges from the committee stage. I am afraid that a number of unnecessary surgical operations are to be performed upon it and I therefore propose to wait until we reach the committee stage to advance arguments why those operations should not be performed. There are, however, one or two general observations that I wish to make at this stage in order to clear the way for committee proceedings.

The Government believes in arbitration and not in direct action, and is pleased that the Opposition agrees with it on that point. It is also pf opinion that the principle of arbitration should remain, and, from the observations made by honorable senators opposite, it is obvious that they also believe in a continuance of arbitration. That leads m, to the point of asking honorable senators whether we are really honest with ourselves, if, after debating the various imperfections of the existing system, we do not apply ourselves to the seeking of possible remedies. We are told, for ex- ample, that under the existing act there is power to arbitrate and conciliate, but every honorable senator who has spoken in opposition to the bill has candidly admitted’ that the- conciliation provisions of the act have not worked out in the direction that was desired.

Senator Sir George Pearce:

– I did not make that admission; I gave several instances in which the conciliation powers of the present act had applied.

Senator DALY:

– The right honorable senator mentioned several cases in which conciliation had been resorted to, but, under the present system, no one can divorce conciliation from arbitration. Before there can be conciliation, the parties have to pass through the judicial atmosphere. It is the judge who appoints the conciliation committees, and every award has to be made in the court. Honorable senators opposite have complained that once an award is made in some cases it is immediately disobeyed. What is the reason for this ? Belief in arbitration has been professed by the employers’ federations and by the trade unions. . Under the present administration of industrial legislation something has happened to destroy the confidence of one or both of the parties. I do not believe in criticizing judges of the Arbitration Court, even if the Standing Orders would permit me to do so, because they have a difficult function to perform; but I say that during the last four years the administration of arbitration has tended, as it is still tending, to further destroy the confidence of the worker in the arbitration system. That, however, is no argument that arbitration has failed. We still believe in it, and when we find that some of the rank and file of an industrial organization which has been lauded for its loyal observance of awards are rebelling against a decision of the court, is it not time for us to take stock and ask ourselves whether there is not a better system than the present? We all admit that it does not promote that industrial peace we all desire. Can we change it ? I submit that we can by introducing humane methods into it. Any one who has had experience of law courts knows that next to the Antarctic the atmosphere of the court is the coldest. Justice is blind; the scales are held evenly; there is no sentiment about a court; it has no soul; it deals out pure justice. Passing as we are through a time of extreme’ difficulty with friction in our industrial system, i3 it not easier for a layman with ali the powers of a judge, sitting at a table with employers and employees, to decide the destinies of a particular industry than it is for a court under existing conditions? The employers’ and employees’ advocates walk into the court, the advocate of the employers expecting the lowest wage the’ judge can award, and the representative of the employees expecting the highest wage to be paid. Each submits a mass of data and statistics, and the matter is left to the judge to come to a decision in a cold legal atmosphere irrespective of the consequences to the parties. I have heard honorable senators opposite praise the wages board system. I submit that it is a better system from the point of view of securing industrial peace than the litigious system as it exists in the arbitration court to-day Honorable Senators. - Hear, heart Senator DALY. - I am obliged to honorable senators. I think the child will get on a little better than I thought it would ! What are the conciliation committees proposed in the bill but wages boards? Honorable senators who profess to be enamoured of the wages board system would be well advised to read George Anderson’s book on The Fixation of Wages in Australia, in which he set out the wages board system in operation in Victoria and South Australia. I remind honorable senators, however, that in both Victoria and South Australia the chairmen of the wages boards are appointed by the Government, and they have power to do precisely what the conciliation commissioners under this bill will be expected to do. If honorable senators believe that it is better to have wages and conditions of labour in the States fixed by wages boards than by an industrial court, what logical argument is there against adopting the same system in the Commonwealth ?

Senator Sir George Pearce:

– But the Government proposes to work the two systems side by side in the Commonwealth.

Senator DALY:

– In South Australia there is also an industrial arbitration court, and there is only one distinction between it and the Commonwealth court. It is a detail to which honorable senators can give the fullest consideration in committee. The industrial court , in South Australia exercises what we in South Australia call correctional jurisdiction.

Senator Sir GEORGE PEARCE:

– That is a very vital difference.

Senator DALY:

– It is the only difference between the South Australian system and what is proposed in this bill. We are apparently getting closer together than I anticipated. If honorable senators opposite think that there is no correctional jurisdiction in the Commonwealth court the Government will be prepared to favorably consider a proposal to give it that power. But in order to give arbitration a true trial we are anxious to bring into existence a system of conciliation committees similar to the wages board system in operation in the States.

Senator H E ELLIOTT:
VICTORIA · NAT

– In that event why not leave the whole matter to the States?

Senator DALY:

– It is a question of rendering unto Caesar the things that are Cæsar’s. A few months ago the honorable senator had an ample opportunity to appeal to the jury on that point, but in unmistakable language the jury said “Leave it to the Commonwealth.” I am prepared to listen to any reasonable suggestion from honorable senators opposite. What they have to consider is whether they desire to perpetuate the system such as we have at the present time with all the industrial unrest that exists under it, or whether they will adopt another system which admittedly has proved successful in the States of Victoria and South Australia. When we are in committee I trust honorable senators will give the point very serious consideration.

Honorable senators opposite - one of them after claiming that he had closely studied the bill - have accused the Government of seeking to wipe out the whole of the penal provisions of the act in so far as they affect employees, while retaining those that affect employers. I refer honorable senators to page 5 of the memorandum on which it will be seen that neither employer nor employee can injure the other once either is bound by an award.

Senator H E ELLIOTT:
VICTORIA · NAT

– How can an employer or employee break an’ award except by a strike or a lockout?

Senator DALY:

– As a member of the legal profession the honorable senator knows as well as I do that an award can be broken by accepting a rate of wage lower than the prescribed rate or by a man leaving his employment once he accepts employment under an award. If time permitted, I could enumerate quite a number of cases in which an employee can break an award. Employees have as many means of breaking awards as employers have. If honorable senators look at page 22 of the memorandum they will find that there is no distinction drawn between employer and employee in section 38. The provisions relating to breaches of awards apply equally to employers and employees, so this portion of the bill, at all events, cannot be regarded as one-sided. The Government, for the reasons stated in my secondreading speech, has eliminated all references to a lockout or a strike, so I am rather surprised, in the circumstances, that objections should come from honorable senators opposite, because they have always professed to be firm believers in the abolition of conflicting jurisdictions. Again I ask Senator H. E- Elliott and Senator McLachlan is it not a fact that whilst these penal clauses remain in the act there will be two conflicting jurisdictions relating to one particular subject-matter.

Senator McLachlan:

– What is that?

Senator DALY:

– The conflicting jurisdictions penalizing men for striking. The honorable senator will remember the celebrated case in South Australia, Safe versus McNally, one of the first cases to come before the court under the State arbitration system. In that case, certain employees were prosecuted under the State law for having done something in the nature of a strike. The prosecution was successful despite the fact that the persons concerned were ably defended by Mr. Piper, K.C., now a judge of the Supreme Court of South Australia.

Senator McLachlan:

– But where is the conflicting jurisdiction?

Senator DALY:

– I refer the honorable senator to the 1920 industrial code. The definition of a strike is particularly wide. It reads- - “Strike” (without limiting the meaning of the term) means the act of any number of employees, who are or have been in the employment either of the same employer or different employers, in discontinuing that employment, or any work or kind of work connected therewith, whether wholly or partially, or in breaking their contracts of service, or in refusing or failing after any such discontinuance to resume or return to their employment, or any work or kind of work connected therewith, the said discontinuance, breach, refusal, or failure being due to or in pursuance of any combination, agreement, or understanding, whether expressed or implied, made or entered into by the said employees with intent -

  1. to compel or induce any such employer to agree to terms of employment, or comply with any demands made by the said or any other employees and whether such other employees are employed in the said State or not; or
  2. to cause loss or inconvenience to any such employer in the conduct of his business; or
  3. to incite, instigate, aid, abet, or procure any other strike; or
  4. to assist employees in the employment of any other employer (whether such other employer carries on his business or undertaking partly within and partly outside the State or wholly outside the State) to compel or induce that employer to agree to terms of employment, or comply with any demands made by any employees:

It will be seen from this definition that under the South Australian industrial law, a strike means the discontinuing of any form of employment for the intention mentioned in the particular section which I have quoted. Those honorable senators who have any fears with regard to the repeal of these penal provisions in the Commonwealth act must be aware, surely, that State legislation is sufficient to deal with any industrial offence. As I have pointed out, we have in South Australia a State court sitting as a Federal court, and exercising jurisdiction over a strike in respect of which those responsible for it could have been prosecuted under a State law. Apart from that, there is the other aspect of the case which has been urged by honorable senators opposite, namely, that wherever possible jurisdiction in industrial matters should remain with the States. No one can deny that the States have the power to deal with offences which come within the scope of these penal sections, and no one will deny that they have, in fact, dealt with them.

Senator SirGeorge Pearce:

– Not if jurisdiction has been left with the Federal Court; that is to say, if a federal award operates, the State jurisdiction ceases.

Senator DALY:

– The State jurisdiction to make an award ceases. But an act in the nature of a” strike can be committed by a person bound by a Commonwealth award, and the facts necessary to constitute the particular offence can be a breach of the law. Any such breach of the law is punishable under the State industrial code. As I have pointed out, in State legislation, a strike is defined as the act of a number of persons in combination for the purpose of demanding and enforcing conditions of employment which can be prescribed by an award in the same way as by an ordinary common law contract. If in combination they leave their employment for the purpose of forcing their employer to comply with some demand, whether they are working under a Commonwealth contract, a State award or a Federal award, they can be prosecuted.

Senator McLachlan:

– Does the Minister suggest that, following the abolition of these penalties, State Parliaments would pass certain legislation to meet the new situation?

Senator DALY:

– There is no need to do that, because the industrial codes of the States already give State authorities ample power.

During the debate some reference was made to. the basher gangs and razor gangs which, during industrial disputes in recent years, have committed serious breaches of the law. No one can doubt that such persons can be prosecuted under the penal provisions of State laws. As a matter of fact they were prosecuted in certain of the States.

I come now to the lament of Senator Payne concerning the Government’s intention to repeal those sections of the act relating to the taking of a secret ballot. On that point all I can say is that I agree entirely with the remarks of Senator Hoare. If a majority or, for that matter, a minority of the members of a union desire to cease work, they will do so without regard to the view that might be expressed by the membership through the agency of a secret ballot. It is impossible to compel men to work against their wishes, and if the so-called “ red “ element secured control of an organization, strike would continue regardless of the view of its members expressed by a secret ballot.

I come now to the point raised by Senator McLachlan, who contended that the two functions of the court, namely, conciliation and arbitration should be kept in watertight compartments. That condition does not obtain to-day. Conciliation, as I pointed out, would operate until the parties became at daggers drawn in the legal atmosphere of the court, for which existing legislation is responsible. Our arbitration system has been in operation for nearly a quarter of a century. During that time a number of principles have been built up in what we know as the new jurisprudence. There is no magic in the term “ conciliation.” The primary duty of a conciliation commissioner to be appointed under this bill will be to conciliate the parties in the same manner that the chairman of a wages board endeavours to bring the conflicting interests of employers and employees together. It would be of no use for a conciliation commissioner merely to call the parties together. Something more is expected of him. What is needed is authority on the part of the conciliator to enforce his views in the event of the failure of the parties to reach an agreement.

Without discussing the question raised earlier in the debate, as to whether there should be correctional jurisdiction, I remind honorable senators opposite that they affirmed this principle when we were discussing the Cotton Industries Bounty Bill. The particular provision in that measure gives power to the Minister to appoint certain authorities with powers identical with those with which it is proposed to clothe the conciliation commissioners under this bill, namely, to prescribe the rates of payment and conditions in the industry mentioned. Honorable senators opposite accepted that principle. The reason was. I think, well expressed by Senator Thompson, who said it was better to allow the parties to come together around a table free from the legal atmosphere of a court, discuss in a conciliatory manner the ramifications of the industry and agree to conditions which would be satisfactory to both sides. The honorable senator very wisely pointed out that courts have the knack of creating anomalies, and he urged that it was very desirable, in the interests of the cotton-growing industry, that no anomaly should be created to interfere with its development. I ask the honorable senator and his colleagues opposite to view the similar provision in this bill in the same light. If he is not satisfied with its verbiage, I am prepared to accept a provision on the lines of the Queensland legislation, because it is the Government’s wish that under the amended industrial legislation it should be possible for the parties to a dispute to come together around a table and discuss their difficulties in a business-like way with a view to arriving at a satisfactory agreement. There need be no fear on the part of honorable senators opposite as to the class of persons the Government will appoint. I have already given an undertaking that the Government is so keen on demonstrating the efficacy of the proposal that it would not risk the possibility of any appointment such as they suggest. The Government will secure the best men for the job; men who will realize the nature of the task that they will be called upon to perform, and who will act honestly as between employer and employee to assist the Government to place the industry of the country upon an even keel. Is it not better to have a body such as that to adjudicate in industrial matters than to leave the system where it now is, controlled by judges whose reputation is beyond question, but who-

The PRESIDENT (Senator the Hon W Kingsmill:

– The honorable senator’s time has expired.

Question resolved in the affirmative.

In committee:

Clauses 1 and 2 agreed to.

Clause 3 -

Section three of the principal act is amended by omitting the words “Part II. - Prohibition of lockouts and strikes in relation to industrial disputes.”

Senator Sir GEORGE PEARCE (Western Australia) [8.48]. - This clause takes the first action to withdraw penalties for lockouts and strikes. I shall not ask the committee to divide upon it. I listened with great interest to the Vice-President of the Executive Council (Senator Daly) when he explained the position in relation to the prohibition of strikes. It was certainly news to me to learn that, notwithstanding what action may be taken by the Federal Parliament in withdrawing penalties with regard to strikes and lockouts, if a strike occurred, say, in the waterside industry at Adelaide, a prosecution would lie against those concerned under the State law. I have always been under the impression that where federal judges exercised a power of the federal law under an existing award, that power overrode any State law or regulation, and that the State authority could not create the happening as an offence under its own law. I am, indeed, surprised to hear the statement of the honorable senator.

Senator Daly:

– The right honorable senator may be aware that a strike is an offence under the common law.

Senator Sir GEORGE PEARCE.The honorable senator went further than that, and said that such a strike as that referred to by me would be an offence against the South Australian industrial law. That is news to me, and a somewhat novel statement concerning the overlapping of Federal and State jurisdiction. As a layman, I cannot combat the authority of the honorable senator on a legal technicality such as this.

Senator MCLACHLAN:
South Australia

– It struck me as a remarkable volte face on the part of the Leader of the Senate that he should suggest that these penalties against strikes and lockouts, incorporated in the federal arbitration law since its inception, should now be administered by State legislatures arid courts.

Senator Daly:

– I did not say that.

Senator McLACHLAN:

– The honorable senator’s remarks could leave no other impression with honorable senators on this side, but that if the federal authority withdrew its industrial penalties, and a strike or lockout occurred in any of the six States of the Commonwealth, the State jurisdiction could enforce its own law against the offenders. The Commonwealth Government appears to be hauling down the flag and refusing to stand by and administer its law prohibiting strikes and lockouts, which is punitive, leaving it to the six States to administer. To my mind, it is simply ridiculous to suggest that we should leave it to the States to deal with strikes and lockouts under what we have always regarded as the most pertinent portion of this legislation. It is true, as Senator Daly said, that strikes are offences under the common law, and under various State enactments. But, on the inception of federal arbitration, the Commonwealth desired to inaugurate a code covering this branch of legislation and not leave it to the States to prosecute for something that the Commonwealth had constituted an offence under its own laws. It was a case of very special pleading on the part of the Minister to endeavour to point out that the penalties against strikes remain in various State enactments, in addition to such actions being declared to be an offence against the common law. As I pointed out last night, I think that this is a decided weakening of the arbitral powers of the Commonwealth Government and Parliament.

Senator DALY:
Vice-President of the Executive Council · South Australia · ALP

– I do not desire to be misunderstood in connexion with this matter. I do not say that the States should enforce penalties for offences created by the Commonwealth. What I said, and now repeat, is that any person in South Australia who accepts employment under a Commonwealth award and, in combination with others, leaves that employment, may be prosecuted, with his companions, for striking. It is not a case of the Commonwealth Government hauling down its flag, or transferring its powers to the States. I made it perfectly clear in my second-reading speech that the Commonwealth Government believes that those particular provisions are absolutely ineffective. I simply raised the question as to the power of the States to deal with the matter, in order to allay the fears which appear to be in the breasts of certain honorable senators. I did not use it as an argument why these provisions should be abolished, but merely pointed out that if honorable senators have any doubts upon the matter, power still exists with the States to prosecute these men for striking.

Clause agreed to.

Clauses 4 to 8 agreed to.

Clause 9 -

Section 18c of the principal act is repealed and the following section inserted in its stead “18c (7.) A Conciliation Commissioner shall have the powers of a judge under sections 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. (8.) A Conciliation Commissioner shall also have all the powers which the Court or a Judge has under section thirty-eight of this act, other than -

the power contained in paragraphs (d) and (f) of that section, and

the power to give an interpretation of any term of an existing award, contained in paragraph ( o ) of that section :

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. (0.) 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.”.

Senator Sir GEORGE PEARCE (Western. Australia) [8.5.6].- This clause not only provides for the appointment of conciliation commissioners; it also defines their powers. Sub-clauses 1 to 6, inclusive, deal with the appointment and terms under which conciliation commissioners are to be appointed, and how they may be deemed to have vacated their office. Subclauses 7, 8, and 9 define the powers of the commissioners, and it is in sub-clause 8 that their power is made similar to that of an, arbitration court judge. In order to test the matter; I propose to ask the committee to. omit sub-clause 7, 8, and 9. If my suggestion is approved, the remainder of the clauses will simply provide for the appointment of conciliation commissioners, and the committee will have registered their opinion that, those commissioners should not have, such arbitral power.

Inhis reply on the second-reading debate the Minister made a suggestion that the Government: might be prepared to consider some amendment to bring this provision into conformity with the South Australian law, under which, I take it, the commissioners would act similarly to the chairmen of wages boards, and an appeal would be provided against their decision. I am not, at this juncture, expressing any opinion upon the proposal, except that it would be much less objectionable than this clause as it stands. It now gives to a conciliation commissioner the absolute power of a judge, and places in the hands of an executive the power to appoint a conciliation commissioner to hear a case that would normally go before a judge. That would be a most objectionable method of dealing with industrial matters, and would subject the Government itself to a great suspicion as to its motives for appointing the commissioner. It is necessary that these tribunals should, as far as possible, be above suspicion. Not only are the conciliation commissioners given the powers of a judge; but further on they are given an even greater power, for they are authorized to interpret the Constitution. Senator Colebatch dealt with that point. The bill as framed provides that these gentlemen, who will be appointed because of their common sense, will have the power to interpret the Constitution in respect of industrial matters. They may have a lot of common sense, as I hope we all have, but I doubt if any honorable senator would claim to be capable of interpreting the Constitution. It is too great a power to vest in these commissioners. The commissioners will not be conciliators at all. Everyone who has had experience of industrial matters knows that if behind an industrial commissioner stands an arbitration tribunal, an organization appearing before a commissioner will have its eye on the ultimate tribunal. That is why the conciliation clauses in theexisting act have not worked successfully. An organization will get as much as it can from a conciliation commissioner; but it will not be satisfied until it gets before the final tribunal. That was proved some years ago in Victoria, where they had a wages board system somewhat similar to that in South Australia, and also am appeal court. It was found there that nearly every case ultimately went before the appeal court. That court was eventually abolished, because it was found that there was no finality in the decisions reached by the wages boards. J suggest that these so-called conciliation commissioners will, in fact, be arbitrators. There will be no appeal from them to any other tribunal. Because they are arbitrators they will cease to have any value as conciliators. The organizations that will appear before them will be prepared to accept a certain minimum. A conciliation commissioner may attempt conciliatory methods until the cows come home, but the organization will know that eventually he will act as an arbitrator. It will place its request before him in the hope that, as an arbitrator, he will give it all it wants. One person cannot perform the functions of both a conciliator and an arbitrator. I have already given some instances of agreements having been arrived at by judges of the court acting as conciliators. The reason why they have not acted more in that capacity is that the parties to disputes always have known that, as a last resort, the conciliator had to act as an arbitrator. If we could appoint conciliation commissioners whose duties would be solely those of conciliators they might serve a useful purpose. The late Mr. A. M. Stewart was a conciliation commissioner, and I believe that he did some very valuable work. If we take out of this clause the arbitral powers of the commissioners, we shall have exactly what is in the existing law. These men will then be conciliation commissioners, purely and simply, without the power to arbitrate. That is the only way that they can function satisfactorily as conciliation commissioners. If we gave them the powers which sub-sections 7, 8 and 9 would confer upon them they would have to act as arbitrators in every case that comes before them. I move -

That sub-sections 7, 8 and 9, proposed new section 180, be left out.

Senator DALY:
Vice-President of the Executive Council · South Australia · ALP

– Am I to understand that if a provision for correctional jurisdiction is inserted the Leader of the Opposition (Senator Pearce) is ‘prepared to withdraw his amendment?

Senator Sir George Pearce:

– I think the best thing would be to delete sub sections 7, 8 and 9, and to allow opportunity for further consideration of the clause.

Senator DALY:

– I submit that that is not the right procedure to adopt. Honorable senators appear to be unanimous that it is better that the parties to a dispute should get together in a roundtable conference than that advocates should address the court and place certain facts before a judge., If we agree on that point - and the only difference between the Government and the Opposition in regard to it is that the latter think that the man who sits at the head of the table, whose decisions will be final, will have powers which he might abuse - there is a possibility of introducing a correctional jurisdiction. If there is a possibility of that being done, rather than lose what I consider to be the most vital portion of this bill, I shall be prepared to postpone consideration of the clause with a view to obtaining instructions regarding it. There are other clauses which could be finally disposed of, as, for instance, that which, provides for preference to unionists. I shall ask that the clause be postponed.

Senator Sir GEORGE PEARCE (Western Australia) [9.7.] - It might be well to postpone this clause with a view to considering whether there is a via media. The Opposition heard only to-night that the Government might be prepared to consider something on the lines of the South Australian law. There has not yet been time for us to consider such a proposal. If this clause were postponed for further consideration, and subsequently amendments were made in the direction indicated, the bill would have to be recommitted in order to make consequential amendments. There would be some consequential amendments of importance, such as that raised by Senator Colebatch as to the power of conciliation commissioners to interpret the Constitution. If the Vice-President of the Executive Council (Senator Daly) will agree to the postponement of the clause on those conditions, that would perhaps, be the best course to follow.

Senator Daly:

– I agree to that.

Senator MCLACHLAN:
South Australia

– I suggest that a better course would be to postpone this clause and also the consequential amendments and deal merely with, the substantive matters to-night. That would give the Minister an opportunity to consider the points raised. If the amendment by the Leader of the Opposition is agreed to, consequential amendments will need to be made in section 19b which is dealt with in clause 10. There would also be consequential amendments in clause 11. In clause 12, a substantive question arises. I suggest that we deal to-night only with the substantive matters and postpone consideration of this clause and any consequential amendments which an alteration would necessitate.

Clause postponed.

Clause 10 agreed to.

Clause 11. (State authority to cease dealing with dispute on order of court or commissioner).

Senator Sir GEORGE PEARCE (Western Australia) [9.11.] - I wish to make it clear that in allowing this clause to pass on the voices, we are not necessarily agreeing to it. This clause gives the conciliation commissioners power to say that, a case should not go to the courts, ft will have to be dealt with again if clause 9 is amended.

Clause agreed to.

Clause 12. (Application to court for declaration of existence of dispute).

Senator Sir HAL COLEBATCH (Western Australia) [9.12.] - This clause deals with the removal from the jurisdiction of the High Court of something that cannot be so removed. The feeling of the committee could easily be tested in respect of paragraph c. Some of the other clauses will depend on whatever is decided with respect to clause 9.

Senator Sir George Pearce:

– Clause 1.2 deals only with the jurisdiction of the High Court.

Senator Sir HAL COLEBATCH:

– I ask the committee to vote against the clause. By way of interjection when I was speaking the Vice-President of the Executive Council (Senator Daly) intimated that he intended to place before the committee certain cases which contradicted the views that I put forward, namely, that the High Court had already declared a similar provision in the existing act to be ultra vires. The High Court held that it was the privilege of that court alone to deal with matters of that kind.

Senator DALY:
Vice-President of the Executive Council · South Australia · ALP

– Senator Colebatch is in error, for the sugar company’s case was decided on an entirely different point. The point raised by Senator Colebatch relate? to section 21aa. All that the High Court held in the case of the Waterside Workers Federation v. Alexander, 25 C.L.R., page 35, was that under section 21aa, insofar as the legislation purported to take away the right of prohibition of the High Court, it was invalid.

Senator Colebatch:

– That is the same point that was decided in the coal case.

Senator MCLACHLAN:
South Australia

– I feel impressed with the difficulty confronting the committee if we are to proceed in this way. This point deserves the most serious attention of the Minister. The only authority which tho Parliament possesses is that which the Constitution confers upon it, and the interpreter of the Constitution is the High Court and the High Court alone. The Commonwealth Arbitration Court can exercise only those powers which this Parliament confers upon it under the Constitution, which can be interpreted only by the High Court. It is idle to suggest that the question of determining certain facts overcomes the difficulty. I direct the attention of the Minister to the attempt which has been made to adjust this matter. Sub-clause 5 reads -

The last preceding sub-section shall be read as an exception prescribed by tho Parliament to the appellate jurisdiction of the High Court under section 73 of the Constitution.

But we are not dealing with the appellate jurisdiction. Prohibition is not a part of the appellate jurisdiction of the High Court; but part of its original jurisdiction. I suggest to the Minister that’ this is not a part of the appellate jurisdiction of the court, and that this attempt to get over the difficulty is absolutely ineffective. Sub-clause 2 provides that the High Court shall have jurisdiction to hear and determine the question. We cannot deprive the High Court of jurisdiction exclusively given to it under the Constitution. Subsection 3 reads -

The jurisdiction of the High Court under this section may be exercised by any justice nf the High Court sitting in chambers.

Sub-section 4 as proposed to be amended, reads - “

The decision of the Court on the question shall be final and conclusive and shall not bc -object to any appeal to the High Court in its appellate jurisdiction, and shall not be challenged, appealed against, reviewed, quashed, or called in question, or bc subject l.o prohibition, mandamus, or injunction in any court on any account whatever.

That is clearly beyond our powers. Our only support is to suggest that prohibition has something to do with the appellate jurisdiction concerning which we have certain powers. Prohibition does not play any part in the appellate jurisdiction, and as the Minister will at once see, we are caught in a trap from which there is no escape. I t ill becomes us to put something in the bill which is clearly beyond our powers.

If the Minister will refer to 18 Commonwealth Law Reports he will see a case in which it was decided that prohibition is not a part of appellate jurisdiction. In the circumstances I suggest that the Minister should postpone this clause.

Senator DALY:
Vice-President of the Executive Council · South Australia · ALP

– Sub-clause 4 reads: - . . and. shall not be challenged, appealed against, reviewed, quashed, or called in question, or be subject to prohibition, mandamus or injunction, in any court or on any account whatever.

The High Court has held that “ in any court “ does not include the High Court. It means any court other than the High Court. Parliament can legislate with respect to the definition of appellate jurisdiction of the High Court, and that is what is done in sub-clause 5. The clause as it stands would not prevent the interpretation of any existing law by the High Court. The present Chief Justice has expressed a doubt on the matter; but it appears that despite the passing of this legislation the power of prohibition would still rest with the High Court. There is to be no sacrifice of principle in inserting in this legislation a clause which has received judicial interpretation. There is, of course, the question of principle mentioned by Senator Colebatch to the effect that this prevents an appeal on a question of law being made from the Industrial Court to the High Court. The suggestion that it is ultra vires, I submit, will not stand. Under the Constitution this Parliament is entitled to make laws for the peace, order and good government of the Commonwealth, including conciliation and arbitration for the settlement of industrial disputes extending beyond the limits on any one State. That particular section limits our legislative power. Prohibition rests with the High Court. Even if this clause is passed anybody could apply to the High Court to prohibit an industrial court from proceeding to hear a case over which an industrial court had no jurisdiction. If this clause is passed no one could be prevented from taking advantage of a writ of prohibition. It merely prevents the exercise of that appellate jurisdiction which was formerly available. I think that honorable senators will see why the reference to the High Court has been deleted. When this section was enacted a judge of the Arbitration Court was also a judge of the High Court; but to-day the Arbitration Court has been absolutely divorced from the High Court and separate judges have been appointed to do that particular work. All that Parliament is asked to do is to sanction the principle that where an industrial dispute extends beyond the limits of one State, insofar as the Constitution will permit, the Industrial Court shall interpret the law, but where the Industrial Court is not permitted to act the High Court shall. The High Court will still remain the watch-dog of the Constitution, and a decision as to whether anything which this judicial body purports to do is or is not within the Constitution will still be decided by a writ of prohibition to the High Court. There is no appeal to the High Court when the Arbitration Court acts within its own jurisdiction. I submit that Senator Colebatch should study this matter from the constitutional viewpoint. The Constitution is not infringed by this provision. Parliament cannot take away from the High Court the power which it has been given under the Constitution. Parliament cannot circumscribe the limits of the High Court’s work. The legislation has to be considered in relation to the Constitution. There is also another principle. Under the existing legislation the Industrial Court is divorced from the High Court. Separate judges have been appointed to the Arbitration Court, and there is no necessity for these questions to be decided by the High Court when in the States similar questions are decided by industrial court judges. It is simply to bring the legislation up to date. I submit that the Arbitration Court is more competent to deal with such matters, because its judges have specialized in this branch of the law. We have appointed Arbitration Court judges possessing similar qualifications, who receive the same salary, and who, we consider, are better able to decide the matters which come within their jurisdiction than the High Court judges. All I am asking the committee to do is to accept the principle insofar as the Constitution permits.

Senator Sir HAL COLEBATCH (Western Australia) [9.29]. - I trust that the committee will not be led away by tho specious pleadings of the Minister. He merely suggests that we should embody in the bill something which is quite ineffective.

Senator Daly:

– I said nothing of the sort.

Senator Sir HAL COLEBATCH.When I brought up this matter on the second reading, the Leader of the Senate reproved me for not having quoted the latest decisions on the subject, and he now brings out a decision much earlier than one I quoted, although it confirms everything I said. I quoted from the Commonwealth Law Reports, volume 18.

Senator Daly:

– I quoted from volume 25, which is later than volume 18.

Senator Sir HAL COLEBATCH.But I also quoted from a decision of the High Court as reported in volume 42, which is much later than volume 25. In the Tramways case, reported in volume 18, the High Court laid it down that there are three things - that it is a dispute, that it is an industrial dispute, and that the dispute extends beyond the limits of one State - which the Constitution requires the High Court, and the High Court alone, to decide. In volume 42 the same points are decided in the two coal cases.. The High Court alone can decide the question that is set out in clause 12, which seeks to amend section 21aa, sub-section 1 of which, as proposed to be amended by this bill, reads -

In any other case any party to the proceeding or the Registrar may apply to the court for a decision on the question whether the dispute or any part thereof exists or is threatened or impending or probable as an industrial dispute extending beyond the limits of any one State or on any question of lav arising in relation to the dispute, or to the proceedings, or to any award or order of the court, or a conciliation commissioner.

This bill deliberately suggests that the parties or the Registrar may apply to the court for a decision on a matter which the High Court on several occasions, extending from the Brisbane Tramways case right down to the present year, has decided is a matter over which no other court has jurisdiction.

Senator MCLACHLAN (South Australia [9.33.] - I propose now to state the position in a more orderly fashion than I did before. I did not do so before, because I thought that Senator Daly would be so impressed with the difficulty that honorable senators have in accepting <the clause that he would decide to postpone its further consideration. Section 73 of the Constitution says that the High Court shall have jurisdiction, with such exceptions and subject to such regulations as Parliament prescribes, to hear and determine appeals. In the bill as it has come to us from another place, there is inserted in section 21aa of the act a new sub-section, as follows: -

  1. The last preceeding sub-section shall be read as an exception prescribed by the Parliament to the appellate jurisdiction of the High Court under section 73 of the Constitution.

The last preceding sub-section - that is, sub-section 4, as proposed to be amended by this bill - reads -

The decision of the court shall be final and conclusive and shall not be subject to any appeal to the High Court in its appellate jurisdiction and shall not be challenged, appealed against, reviewed, quashed, or called in question, or be subject to prohibition, mandamus, or injunction in any court on any account whatever.

If the court finds that a dispute merely exists in Victoria, or is an interstate dispute within the Constitution, sub-section 4 attempts to make the decision final; but in order to try to buttress that position, the Government seeks, by the proposed new sub-section 5, to make that decision an exception prescribed by the Parliament to the appellate jurisdiction of the High Court under section 73 of the Constitution, whereas prohibition, mandamus, or injunction on these points is not part of the appellate jurisdiction of the High Court; it is part of the original jurisdiction of the High Court.

Senator Daly:

– I admit it.

Senator McLACHLAN:

– As a lawyer I should be ashamed to allow the proposed new sub-section 5 to pass. It would be putting in the bill something which has really no substance. It could not help us out of the difficulty in which we find ourselves. I cannot say that the Minister is not right in his contention that the final decision would still be obtained from the High Court. But what is the good of putting in the bill a mere placard to show that we are cutting out the High Court when we are not doing so?

Senator Sir GEORGE PEARCE:
WESTERN AUSTRALIA · ALP; NAT from 1917; UAP from 1931

– The object is evidently to “get rid of entangling legalisms “?

Senator McLACHLAN:

– I appeal to the Minister, who understands these things, that the committee should not be asked to pass this clause. I have no doubt that the clause got through another place in the hurley-burley of proceedings there; but it seems to me a reflection on myself when I am asked to do something by way of a subterfuge - to turn an original jurisdiction of the High Court into an appellate jurisdiction. I understand from SenatorPearce that the motto of the Optimists Club is “ It can be done.” But in this case we must be pessimists, because the Constitution absolutely forbids us to do this. To suggest that notwithstanding this prohibition we can put in this bill a provision excluding an appeal to the High Court is scarcely worthy of Senator Daly. By a long series of decisions, the view taken by the High Court has been well established in regard to prohibition, and it seems to me that the Minister should either agree to postponethee clause, so that he may have an opportunity of straightening it out, or agree to its’ deletion. It would not reflect credit on honorable senators to pass it in its present form.

Senator DALY:
Vice-President of the Executive Council · South Australia · ALP

– As there seems to be a dispute between two surgeons as to whether this particular operation should be performed, I agree to the postponement of the clause, but I appeal to Senator Colebatch not to think that I have advanced specious arguments. On every question there is always room for honest difference of opinion. Honorable senators can see that there is a difference between Senator MeLachlan and myself, and we are both lawyers.

Clause postponed.

Clause 13 agreed to.

Clause 14 -

Section twenty-four of the principal act is amended -

by omitting from the proviso to subsection (1.) the words “or that it is not in the public interest that it should be certified “.

Section proposed to be amended -

– (1.) // an agreement between all or any of the parties as to the whole or any part of the dispute is arrived at, a memorandum of its terms shall be made in writing and certified by a judge . . .

Provided that a judge may refuse to certify anysuch memorandum if he is of opinion that the agreement is not in settlement of an industrial dispute or contains clauses which the court has no power to insert in awards, or that it is not in the public interest that it should be certified.

Senator Sir GEORGEPEARCE (Western Australia) [9.40.] - I move -

That paragraph (c) be left out.

This clause amends section 24, which deals with industrial agreements, and provides that they are to have the effect of awards. The first two paragraphs of the clause deal with the commissioner, Their fate will be consequential upon the fate of clause 9, and we do not need to deal with them at the present moment, but paragraph c proposes to omit the words “ or that it is not in the public interest that it should be certified,” from the proviso to sub-section 1. This provides that a judge may refuse to certify a memorandum of the agreement arrived at between the parties, if he is of opinion that the agreement is not in settlement of ah industrial dispute or contains clauses which the court has no power to insert in awards, or that it is not in the public interest that it should be certified. It is very necessary for the judge to have the power to refuse to certify a memorandum that is not in the public interest. The parties may come to an agreement which is to the detriment of the public, and those words were inserted in the principal act to enable the judge to look over an agreement. It was not considered sufficient for him to satisfy himself that the parties are in agreement. He ought also to be satisfied that the agreement is in the public interest. It is an extraordinary thing now to propose that these words should be omitted. In sheltered industries there may be an agreement between the employers and employees in regard to wages, hours, and conditions, and the public may have to pay. The agreement may also have attached to it a condition as to the price at which the article turned out by the parties is sold to the public.

Senator Daly:

– I do not oppose the amendment.

Amendment agreed to.

Clause, as amended, agreed to.

Clauses 15 to 17 agreed to.

Clause 18-

Section 25d of the principal act is repealed.

Senator Sir GEORGE PEARCE (Western Australia) [9.45]. - I do not intend to oppose this clause. Section 25d, which it proposes to repeal, reads -

The court shall, before making any award or certifying any agreement, and in proceedings for the variation or cancellation of an award or agreement, take into consideration the probable economic effect of the agreement or award in relation to the community in general and the probable economic effect thereof upon the industry or industries concerned :

Provided that this section shall not affect the practice of the court in fixing the basic wage.

One reason why I do not intend to oppose the clause, is that recently Chief Judge Dethridge stated that it would always be the duty of any court, in making an award, to take into consideration its economic effect upon the industries of the country generally. In the debate on this bill we have heard a good deal about the application of common sense to the solution of industrial problems. The view of the Chief Judge of the

Arbitration Court appeals to the common sense of the people. Naturally we assume that the tribunal in question will always consider the economic effects of its awards.

Senator DALY:
South AustraliaVicePresident of the Executive Council · ALP

– Probably a word of explanation with regard to the clause is necessary. If honorable senators will read the section proposed to be repealed, they will realize that its verbage is mischievous. I have had a good deal of experience in industrial arbitration, and had it been necessary to persuade honorable senators of the wisdom of repealing the section in question, I was prepared to quote extensively from the judgment of one, who was probably the greatest of all industrial jurists. I refer to the late Dr. Jethro Browne. After all, the section is merely declaratory of the present law. Judges of the Arbitration Court always take into consideration the economic effect of awards in relation to the community, and the industry or industries concerned. Senator Guthrie, and, I think, one or two other honorable senators, mentioned what is known as a prosperity allowance, which has been included in certain awards. If a prosperity allowance is made in respect to one industry and an adversity award is made in respect of another, the resulting discontent in industry generally must be detrimental to the interests of Australia. The learned jurist to whom I have referred, has pointed out that there are three parties to every industrial proceeding - the employer, the employee, and the community, and that the court, in making awards, must consider their effect upon industry generally, and whether they will dovetail in with the general scheme of wage fixation. Since this is merely a declaratory provision, the Government considers it is not necessary to retain it, because in every instance the court would take into consideration the economic effects of its awards upon the community in general.

Senator MCLACHLAN:
South Australia

– I agree with what has been said by the Leader of the Government in the Senate (Senator Daly) as to the legal effect which will follow from the repeal of this section. But I think there is one danger which should not be over- looked. I refer to the impression that might be created in the minds of certain people that the repeal of this section will free arbitral tribunals of the obligation to pay regard to the probable economic effects of awards on industry. I suggest that if we eliminate the word “the” before the word “industry “ in the second last line of the section and also strike out the three last words, the safeguard might very well remain in the act. It will then provide that the court shall, before making any award or certifying any agreement, consider the probable effect of such award or agreement upon industry. I make this suggestion because there is a considerable body of opinion which holds the view that, if the section is repealed, the courts may disregard the economic effects of awards on industry. I repudiate entirely, as the Minister did and the judges do, that the courts will take that view of the law; but I suggest that the section, if amended as I have indicated, might very well remain as a safeguard.

Senator THOMPSON:
Queensland

– I should like to give’ a practical illustration of the application of this provision in the law in relation to two applications that came before Mr. Justice McCawley in Queensland. In one case, relating to the pastoral industry, he granted an increased rate because the industry was then in a prosperous condition. The employers accepted the award, but not with enthusiasm, as one might well imagine. In the other case, an application by the Mount Morgan Mining Company, he fixed lower rates of wages which’ the employees would not accept, and, as I mentioned this afternoon, they went out on strike and remained out for eleven months. I was under the impression, until Senator Barnes spoke this evening, that we had not a provision relating to a prosperity allowance in the arbitration law of Queensland; but I defer to the honorable senator, because I have no doubt his memory is more trustworthy in this respect than mine is. I mention these two instances to illustrate the futility of relying upon this provision in the law. Personally, I feel inclined to support the Minister.

Senator H: E. ELLIOTT (Victoria) able senators to the following extract from the speech of the Bight Honorable W. M. Hughes, when discussing this bill in another place : -

Those who introduced the 1928 amendment were not representative of trade unionists. When they said that a judge must take notice of the economic effects of his awards, knowing that he had always done so, what interpretation was to be placed upon their proposal other than that it was a partisan attempt to tamper with the free working of justice? The present Government now proposes to wipe out that provision. I quite understand their motive, but they are mistaken in supposing that they can, by striking out these words, restore the position as it was before the words were inserted. If the Government now says that the judge need not take notice of the economic effect of awards, what interpretation will be placed upon their act? It will go out to the world that Australia, which is regarded by many as the land of strikes - a kind of industrial hot-house in which wages are forced up to a monstrous uneconomic level - now proposes to throw discretion to the winds, and take no notice whatever of economic laws.

Mr.Brennan. - As the right honorable gentleman has pointed out, if this provision is enacted the act will be as it was for 24 years.

Mr. HUGHES. That is so; but nobody will believe it. [Extension of lime granted.] A form of words should be adopted that will make it clear that we have no such intention as will be implied by those who do not understand the whole of the circumstances surrounding the matter. That can easily be done.

The opinion of the right honorable gentleman is well worthy of careful consideration. Senator McLachlan has just shown how the suggestion made by Mr. Hughes may be given effect, namely, by deleting certain words from the section. We might accept the suggestion of the honorable senator.

Senator PAYNE:
Tasmania

.- It appears to me that if section 25d is repealed, a great deal of harm will be done. I am not exaggerating when I say that the eyes of a great portion of the world are upon Australia. It is well known that we are passing through a difficult time. It is also generally understood that we are making’ an attempt to put our house in order. The repeal of this section, which requires the judges of the Arbitration Court to take into consideration the economic effects of awards on industry generally, may create the impression that we are abandoning one of those safeguards which will enable us to restore Australia to prosperity. The provision has been in the act for some considerable time. I agree with those honorable senators who say that its repeal will npt make any difference in the attitude of the judges of the Arbitration Court; but we must consider the effect which the repeal of this section may have upon the people, not only of Australia, but of the outside world. It may be thought that, in future, judges of the Arbitration Court will not pay regard to the economic effect of awards on industry. In this way a great deal of harm may be done to this country. I cannot see that any harm can result from the retention of this provision in the principal act, but I believe that a great deal of injury may be done to Australia if we eliminate it. I am, therefore, prepared to vote against the amendment. Our actions in this important matter are being closely watched by people in other countries, upon whom we have to depend to a great extent for our trade and prosperity.

Clause agreed to.

Clause 19 agreed to.

Clause 20 (Representation of parties at hearing).

Senator MCLACHLAN:
South Australia

– I suggest to the Minister that he should allow the law with regard to this matter to stand. I dealt at some length in my second-reading speech with the advisability of allowing members of the legal profession to appear in industrial cases, on behalf of the parties. The law at present provides that any party not being an organization may be represented by an employee of the party; but no party shall except by leave of the court or by the consent of all the parties, be represented by counsel or solicitor or paid agent. There was then an alternative. Now the law is to be altered to “except by leave of the court, and consent of all the parties.” Both conditions have to be present. Whatever may be said of legal proceedings generally I submit that legal assistance expedites the work of an industrial tribunal. It certainly gives members of the profession an opportunity to earn fees, but I believe that they really earn them. I see no good reason for the alteration of the law as it stands. As Senator Daly knows, parties do and will go to the court, represented by members of their respective organizations, but with a legal representative sitting immediately behind each of. them. That makes the procedure involved, as any intricate matter has to be referred by the representative to the barrister or solicitor, and referred back again by the representative to the presiding officer. It is impossible to eliminate the attendance of professional men, so why indulge in this camouflage? Judges of both the Federal and State Arbitration Courts have on numerous occasions expressed commendatory opinions as to the assistance that results from the attendance of members of the legal fraternity. They have even suggested that, where intricate legal matters were involved, the parties should be represented by a barrister or a solicitor. I appeal to the Minister not to press the amendment for which this clause provides.

Senator DALY:
Vice-President of the Executive Council · South Australia · ALP

– Even at the expense of cutting off portion of my private practice, I must insist upon this amendment. The intention of its framers is that, so far as it is possible, parties should be brought together with the assistance of the judge. I cannot express the matter better than to relate what was said to me on one occasion by a trade union official. I asked him what was his real objection to the presence of members of the legal profession, and, giving me some of my own medicine, he said, “Res ipsa loquitur. You bring about a legal atmosphere, in which we are lost’. We leave the court undecided as to what the judge has determined, and most dissatisfied at the work done.” This amendment is consistent with the whole policy of the bill, and while I admit that barristers and lawyers will always be present, they will have no status in the court. If they are there unwigged, the judge cannot “ see “ them. The only persons that he will see will be the laymen. If he desired to address the barrister he would, first have to speak to the layman, who in turn would speak to the barrister. Eventually, the position that the trade unions and even the employers’ representatives desire would be brought about; there would be a discussion of the real problem that the court had to decide. I must press the amendment, and I hope that honorable senators will support the Government. If they do not they will create an inconsistency with the general scheme.

Senator THOMPSON:
Queensland

– I join issue with my honorable friend Senator McLachlan. I prefer to have no legal talent connected with industrial disputes. The honorable senator contended that efficiency was lost through the absence of legal representatives. I can assure him that in Queensland the Board of Conciliation and Arbitration has been functioning with remarkable efficiency, without the aid of legal talent. The employers’ associations have their representatives present, as also have the unions. They meet before a judge of the court, thresh the matter out, and bring to bear a much more intimate knowledge of the subject than a lawyer would possess.

Senator McLachlan:

– Are those representatives paid agents?

Senator THOMPSON:

– Yes.

Senator McLachlan:

– Then under the amended law they will not be allowed to appear in the court.

Senator THOMPSON:

– I think that they should be allowed to appear, but I do not agree that the legal element should come into it; they simply make confusion worse confounded. As one listened to the debate on this measure, one could not help thinking, “No wonder arbitration is a failure.” I am inclined to support the Government in this matter, but I ask it to go still further and allow union secretaries and the representatives of employers’ associations to appear before the tribunal, as is done in Queensland.

Question - That clause 20 stand as printed - put. The committee divided. (Chairman - Senator Plain.)

AYES: 12

NOES: 13

Majority . . … 1

AYES

NOES

Question so resolved in the negative.

Clause negatived.

Clause 21 (Form and continuance of award).

Senator Sir GEORGE PEARCE (West era Australia) [10.12]. - As debate upon clauses 21, 22 and 23 will be consequential upon any amendment to clause 9, the Opposition, on the understanding that they will be recommitted, do not propose to divide the Senate upon them.

Clause agreed to.

Clauses 22 and 23 agreed to.

Clause 24 (Award not to be challenged or questioned).

Senator Sir GEORGE PEARCE (Western Australia) [10.13]. - This clause also raises an important question and I suggest that it be postponed.

Clause postponed.

Clause 25 agreed to.

Clause 26 -

Section thirty-four of the principal act is repealed, and the folowing 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 flunks proper, and of a chairman appointed by him in accordance with sub-section (4.) of this section.

Senator Sir GEORGE PEARCE (Western Australia) [10.15]. - Section 34 of the principal act deals with conciliation committees. Clause 26 proposes to repeal that section, and to substitute something very similar, with the exception that, whereas under the principal act conciliation committees are appointed by the Chief Judge, under the bill they will be appointed by the GovernorGeneral in council.

Sub-section 8 of the proposed new section 34 reads -

The chairman shall not be present at or take part in any deliberations of the conciliation committee until or unless he is of opinion, or is informed by a representative of one or of each of the parties, that the representatives appear unlikely in his absence tu come to an agreement upon all the matters in dispute.

The only two new questions raised by this clause are, first, whether the committees shall be appointed by the GovernorGeneral or by the Chief Judge, and, secondly, the point dealt with in proposed new sub-section 8, which I have just read. In my opinion, the new sub-section is an improvement on the principal act; but I suggest that it is not an improvement to have the committees appointed’ by the Governor-General instead of by the Chief Judge. We all know that appointment by the GovernorGeneral means appointment by the Government of the day, or the Minister for the time being. Why should the Minister be brought into these disputes at all? We have a court whose function it is to deal with industrial matters. Would it not be better for these appointments to be made by the Chief Judge, with whom the Industrial Registrar is in close contact? In practice, the Chief Judge would be guided largely by the advice of the Industrial Registrar, who is in close touch with organizations of employers and employees. ‘ He is not in such close touch with the Minister as he is with the Chief Judge. Surely the Chief Judge is in a better position to act in these matters than is the Minister, who, although administering the act, does not come into close contact with either the Registrar or the organizations. I, therefore, move -

That the word “ Governor-General, “ proposed new sub-section 1, be left out with a view to insert in lieu thereof the words “Chief Judge”.

Senator DALY:
Vice-President of the Executive Council · South Australia · ALP

– If we can arrive at some agreement respecting the first clause that we have postponed, it will be necessary to retain sub-section 1 in its present form.. The desire of the Government is that the parties to a dispute shall enter the legal atmosphere of arbitration at the last possible moment rather than at the first opportunity, as at present. In practice, the Minister would unquestionably act upon the same advice as that upon which the Chief Judge would act, namely, that of the Registrar. The Registrar, who, under the existing law would advise the Chief Judge regarding the appointment of conciliation committees, will, under this legislation, advise the Minister. He in turn will advise the Governor-General. I suggest that to revert to the old system would be to act inconsistently with the policy outlined in this bill. I therefore urge the right honorable senator not to press this amendment. If the Senate cannot arrive at an agreement on the main clause of the bill, this clause will need to be amen “ed. If the Senate agrees to the principle underlying the bill, I shall ask it to be consistent, and_ to remove from the Chief Judge the responsibility of appointing conciliation committees. 1 suggest that the clause be postponed.

Amendment; - by leave - withdrawn.

Clause postponed.

Clauses 27 to 30 agreed to.

Clause 31-

After section 38b of the principal act the following sect’-on is inserted - 38n.. The court shall not include in any award or order a provision requiring a person claiming the benefit of that award to notify his employer that he is a member of an organization bound by the award.

Senator Sir GEORGE PEARCE (Western Australia) [10.23]. - I suggest that this clause might well be rejected. Section 38b of the principal act, which it seeks to amend, reads -

In making an award or order, the court shall not be restricted to the specific relief claimed by the parties to the industrial dispute, or to the demands made by the parties in the course of the dispute, but may include in the award or order any matter or thing which the court thinks necessary or expedient for the purpose of preventing or settling the dispute or of preventing further industrial disputes.

A rule laid down by the Arbitration Court is that its awards shall be binding only on members of organizations. Under the existing law members of an organization who claim the benefit of an award must notify their employers that they are members of that organization. The new proposal makes such notification no longer obligatory. Without such notification an employer might not know which of his employees are members of an organization. It might be that months after an award had been made he would be summoned by some person who had suddenly discovered that he was a member of an organization bound by the award. As the court has laid down that its awards shall apply only to members of organizations it seems only fair that such persons should notify their employers accordingly.

Senator DALY:
Vice-President of the Executive Council · South Australia · ALP

. -I hope the committee will not accept the suggestion of the honorable the Leader of the Opposition (Senator Pearce). It is all very well to say that an employer might be met with a claim for increased wages, and that, therefore, he should know whether his employees are members of an organization or not. An employer who observes the awards of the court has nothing to fear from the new provision. He needs no protection.On the other hand, the employer who attempts to evade awards is a menace to industry generally. He is in competition with other employers who observe the conditions laid down by the court, and should not be permitted to escape his obligations merely because some of his employees did not inform him that they were members of an organization bound by an award. I have had practical experience of the operation of this legislation. One employer in the dry-cleaning business in Adelaide, would not employ unionists because he knew that if he did so he would have to observe the conditions of the court’s award. Whenever a position became vacant in his establishment the first question he put to applicants was whether or not they were unionists. That man was in competition with decent employers in the same industry who observed the conditions laid down by the court. We should not attempt to protect men who will not observe the law. The man who obeys the law has nothing to fear. It does not matter to him whether bis employees are unionists or nonunionists. I submit that the provision which requires an employee to notify his employer that he is ft member of an organization is iniquitous. No such provision ever appeared in the awards of the late Mr. Justice Higgins or any of the earlier judges of the Arbitration Court. If I may say so, it is an insane provision which I believe was first included in an award made by Deputy President Webb. This provision has caused a great deal of trouble and worry to both employers and employees. It isan inducement to unscrupulous employers to disregard the awards of the court by making it easy for them to escape merely by saying that they were not notified that certain of their employees were members of an organization bound by an award.

SenatorGuthrie. - What objection can there be to an employee notifying an employer that he belongs to a union?

Senator DALY:

– In many cases an employer does not wish an employee to tell him that he is a member of a union. This provision was carried even further by setting out that they had to notifythe employer in writing.

Senator Sir GEORGE PEARCE:
WESTERN AUSTRALIA · ALP; NAT from 1917; UAP from 1931

– In some industries there are numerous Federal and State awards. How is an employer to know who are working under federal awards ?

Senator DALY:

– He can ask them. If the obligation is on the employer to ask a man if he is a member of an organization he cannot, in the event of a prosecution, raise in defence the point I have already mentioned. An unscrupulous employer simply does not ask whether men art: members of a union. He takes good care not to do so. As soon as the fact is discovered, it is, to use a colloquialism, “blown into the ears of the employee “ that he must not disclose the fact. It is an iniquitous provision, and should have never been inserted in the bill.

Senator Sir GEORGE PEARCE:
WESTERN AUSTRALIA · ALP; NAT from 1917; UAP from 1931

– It is essential where Federal and State awards are in operation in the same industry.

Senator DALY:

– There is no State award applying, for instance, to the pastoral industry with the exceptionof Queensland.

Senator Sir GEORGE PEARCE:
WESTERN AUSTRALIA · ALP; NAT from 1917; UAP from 1931

– An employer would only ask when therewas good cause to do so.

Senator McLachlan:

– There mustbe some reason for this provision.

Senator DALY:

– The original provision is a ridiculous one to tack on to the system, and one which has been abused in a wholesale manner, particularly in the clothing industry in South Australia. It does not help good employers, but isof advantage to the unscrupulous. There have been seven or eight prosecutions in Adelaide recently.

Senator Sir GEORGE Pearce:

– That iB not the class of case I have in mind.

Senator DALY:

– It protects employers of that description ; the protection afforded to decent employers is abused by others. I sincerely trust the committee will prohibit the court from inserting in its award a provision which the Government regards as extraneous.

Senator MCLACHLAN:
South Australia

– The Minister has exhibited some warmth over this child of his adoption. I find that this amendment was inserted on the motion of the honorable member for Wannon (Mr. McNeill). While there may be some force in the contention that the requirement that a man claiming the benefit of an award must notify his employer that he is a member of an organization may be used in an objectionable way, it has many advantages. I recall a case which happened in Melbourne the other day where a charitable person, who was willing to assist a man in distress who offered to work for 20s. a week, but who eventually commenced work at 40s. a week, and whose family, while he was at work, was maintained largely by his employer was severely penalized. Within four weeks the man approached his organization, and the employer received a notice intimating that he would have to make up the man’s wages to the extent of £8 r £10. And this for r charitable act I

Senator Daly:

– What occupation was the man following?

Senator MCLACHLAN:

– He was a gardener. The employer paid the extra £2 a week, but at the time he employed the man he was not aware that he was a member of a union. Numerous prosecutions have been instituted in cases of this kind, and it cannot but be to the detriment of business people who have had to meet claims for wages over a considerable period.

Senator BARNES:
Assistant Minister · Victoria · ALP

– It has been said that an honest employer need not fear this provision, because he knows that his employees are covered by awards and that he has to pay award rates. Years ago, it was the custom for men to come along and take a job at wages lower than, the award rates and keep another fellow on the tramp. Afterwards they would expect our organization to pull them out of their trouble. We refused to do that. When men act in that way we do not support them. I do not think that any honorable senator believes that legislation of this character is necessary to carry on the industries of the country. There are many, who wish to dodge the responsibility of paying award rates, and who place their competitors at a disadvantage. I cannot imagine why such a clause should be included in an award. In the fruit-growing industry in Victoria an award is in operation which applies to the members of our organization. Some of the fruit-growers dodge their responsibilities by employing southern Europeans, while our own men cannot get a job. The grape-growers, for instance, approach this Parliament for a bounty on their production, and it is, therefore, provided in all bounty bills that award rates shall be paid. I trust the committee will agree to this provision,

Progress reported.

page 4618

PAPER

The following paper was presented :-

Defence - Report by General . Sir H. 0. Chauvel, Q.C.M.O., K.C.B. (for InspectorGeneral ), on the Australian Military Forces (Part I., 15th April, 1(130).

Senate adjourned at. 10.48 p.m.

Cite as: Australia, Senate, Debates, 24 July 1930, viewed 22 October 2017, <http://historichansard.net/senate/1930/19300724_senate_12_126/>.

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