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Tuesday, 5 December 1905
Page: 6196

Mr HIGGINS - I am not surprised at the attitude of distrust with which these proposals have been received. In the first place, I do not think that a daily newspaper throughout Australia has been in their favour. I must, however, in this connexion^ recognise the wise and unexpected liberality shown yesterd'ay by the Argus, in allowing the leader of the Labour 'Party to express his views through its columns.

Mr Hutchison - And then they replied in a leading article.

Mr HIGGINS - They are at liberty to put forward their own views, and no one can blame them for doing so; the great drawback under which we labour is that we cannot succeed in having the true facts put before the public. We have also had the advantage of the clear and exhaustive exposition of these provisions which was given last Thursday by the AttorneyGeneral, who made a most searching examination of the position, as shown by the American cases. I trust that the honorable and learned gentleman's address will be printed and distributed amongst such honorable members as may wish to obtain copies, because, if ever there was a time when it was necessary for us to supplement the information given by the daily newspapers and through other sources, it is the present.

Mr Hutchison - Let us have a daily Hansard.

Mr HIGGINS - The essence of these clauses is that they make fraudulent representation punishable by a penalty - I mean the fraudulent representation that goods are made by a certain union or person when they are not so made.' I hold that when the question is put in that simple form-, those who object to make men liable to a penalty for lying and deceiving, their customers, take upon themselves a verygreat responsibility. Several points have been made absolutely clear, but, unfortunately, they have not been fairly published in the press. The first of these is that any employer who uses union labour, may use union labels without asking leave. That is not the case in the United States, and, I think, that it is one of the advantages of the proposal now before us.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Then, notwithstanding the alteration of verbiage, these clauses still provide for a union label?

Mr HIGGINS - I am going to the kernel of the issue. I do not by any means adopt the position of those who say that it is hypocritical to speak of these as workers' labels. Such a contention is absolutely wrong. I recognise that these labels will be used for the most part by the unions, but, at the same time, the fact that the boon, such as it is, will not be confined to unions, brings prominently into relief the point that no advantage will be given to unions which is not to be given to every one else who asks for it.

Mr McLean - Does it require a label to indicate that any commodity is made by a worker? Is not every commodity made by a workman ?

Mr HIGGINS - But the whole question is "which worker?"

Mr McLean - Hear, hear. Is the labour unionist or non-unionist?

Mr HIGGINS - I propose in this connexion to put before the Committee a quotation made by the honorable and learned member for Angas showing that President Roosevelt likes to know which organization has made the goods he uses. After describing the awful way in which cigars are made in the United States, the honorable and learned member for Angas pointed out that President Roosevelt said -

I have visited these pest holes personally, and can assure you if smokers only saw how these cigars are made, we should not need any legislative action against this system.

The position is that Ave desire at least that the public shall know what union, organization, or person is the maker of the goods. We cannot blink the fact that the great mass of the public recognise that unions have been the great safeguard's to the health and the morals of the community - that such humane legislation as has been enacted during the last 100 years has been clue to them - and I hold that it will be due to the unions, to their vigilance, their efficiency, and their moderation, if we make any improvement hereafter. My second point is that no employer need use' the label unless he likes ; whilst my third is that no one will be able to put the label on goods unless with the consent of the employer concerned.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Then how can a worker own a worker's label since he cannot use it?

Mr HIGGINS - I shall refer the honorable member to his legal advisers. The fourth point is that we have precedents for these proposals in legisation passed by the Legislatures of nearly all the American States, and that not one of those Legislatures has repealed such laws.

Mr Isaacs - Much more drastic legislation has been passed by the Legislatures of some of the States of America.

Mr HIGGINS - And more than that, it has been held repeatedly that the union label statutes of those States are constitutional.

Mr Kelly - They have " Tammany " and many other things in the United States that we do not wish to see here.

Mr HIGGINS - I could wish that some things here were in the States. What has been established is that anything in the way of boycotting, coercion, intimidation, and so forth which is now illegal, will continue to be illegal under this Bill. Under clause 75 the Bill is not to make legal anything that is at present illegal, so that offences under the present law will continue to be offences. There is a stage at which boycotting, coercion, and intimidation become crimes. That stage will remain ; these clauses will not affect it.

Mr McWilliams - Has the honorable and learned member known boycotting to exist in defiance of the law?

Mr HIGGINS - Certainly. For instance, I have known employers to circulate black-lists containing the names of men who, in consequence of that boycotting, have been refused a billet when they have applied for one.

Mr McCay - Both sides resort to that practice.

Mr HIGGINS - Boycotting takes place on both sides, and in defiance of the law ; but the point is that the Bill will not help a boycotter in the slightest degree. My sixth point is that there is nothing novel in the proprietor of the label, whether he be manufacturer or distributor, not being the proprietor of the goods. That has been shown by the Attorney-General's reference to section 62 of the Trade Marks Act passed last August by the British Parliament, and which only repeats in substance what appears in earlier Acts. There we have hall marks treated as trade marks in a Trade Marks Act, and in each case the goods to which they are applied do not belong to the proprietor of the mark. I refer to those provisions merely as showing the principle; there is nothing whatever exceptional in keeping quite separate the proprietorship of the good's and the proprietorship of the mark. Our opponents scarcely recognise what a compliment they are paying, by their arguments, to the unions. Although in Australia only one worker in ten - the proportion, perhaps, is less - is a unionist, our opponents think that the public will rush for the goods made by unionists as against those made by nonunionists. On the one hand, the extreme popularity which unions have achieved among the working classes is shown by the fact that they regard them as their champions and their warriors. I know of many men who long to belong to a union, but are not allowed, and dare not join one. At the same time they look to the unions to fight their battles for them. Looking back at the History of unionism in Australia, I feel that it is most fortunate that the unionists have taken up the labour movement. The labour movement has been kept on a safe and sound course by the fact of its having been taken up by these organized bodies. As bearing on the question of unionism, I have extracted a short passage from Industrial Democracy, by Sidney and Beatrice Webb. At page 817 they point out that -

The organized trades are vitally concerned in the abolition of " sweating " in all occupations whatsoever, whether these compete with them for custom by manufacturing for the same demand, or for the means of production by diverting the organizing capacity and capital of the nation. And this self-interest of the better-paid trades coincides, as we have seen, with the welfare of the community, dependent as this is on securing the utmost development of health, intelligence, and character in the weaker as well as in the stronger sections.

There are no persons who have given such a thorough-going study to trades unions, and to the conditions of trade unionists, as have these writers, who were here a few years ago. They have there put it most truly that the self-interest of the betterpaid trades - that is the trades in union - coincides with the welfare of the community, and that it is to their interest to see that there is no sweating. The greatest drawback that the unions have is the great number of sweating trades around them upon which unjust employers draw in a crisis. The whole of this framework depends, happily, upon public opinion. If the unions are unreasonable or slovenly in their work, or if they impose bad conditions, the name of the label will become loathsome, and the public will not buy goods so marked. The union, label will help largely to keep the unions in check. It will tend to keep them moderate, because they will know thoroughy well that if the name of a union gets to be unpopular the public will not buy their goods so largely as they otherwise would do. It is a great advantage that those who wish to bring ethical considerations into their buying, as well as the getting of a good bargain, will be able to know - of course only x roughly - that the goods have been made under fair conditions. I recollect that years ago a number of persons never bought cotton goods. Why ? Simply because they knew that cotton goods were made with slave labour. There they had a way of knowing whether the goods were slave-made or not. They could buy linen or cotton, but they always bought linen. In the same way, I do not see why we should not allow persons who wish to buy union or non-union goods to know whether goods have been made by unionists or by non-unionists. Those who wish to buy clean and wholesome goods made by clean and wholesome persons under clean and wholesome conditions ought to be allowed to do so. We desire to increase the liberty of the people. In the North American Review for 1897, volume 165, there are two articles, one being for the label and the other against it. The former article is by Miss Kelly, who says that the trade unions never urge the union label amongst 'the employers; but they urge the purchasers to ask for labelled goods, and she adds that when the ethical sense of the community is so highly developed1 that no one will wear a garment for which just wages have not been paid, the sweating shop will disappear. Her view may be wrong, it may be exaggerated. But at the same time I do not see why she should not be able to buy as she wishes. I recollect going into the Chinese quarters in Melbourne many years ago. I went into a room measuring 14 feet by 10 feet, in which about six Chinese hawkers were housed.

Mr McLean - The honorable member got some cheap furniture then?

Mr HIGGINS - I saw some vegetables, not furniture. The vegetables were stowed away In the room in which the hawkers slept. They were smoking inshi - the dregs of opium - and living in a most filthy state. ' I decided never to try Chinese hawkers' vegetables. But there are no means by which I can be sure that a hawker is a clean man. At an election a few years ago I was asked whether a book which I had published had not been printed at a " scab " shop. I nearly lost a very heavy vote, because the book had been printed at a " scab " shop. I was not aware of the fact, and if there were any means by which I could ascertain whether a shop was " scab " or union I should be very glad of it. The honorable member for Angas has done good service to the argument for this clause in giving some quotations from Miss Helen Campbell's Californian experiences. She says, referring to a tenement in which a cigar-making industry was carried on -

Two of the children sat on the floor stripping leaves, and another on a small stool. A girl of twenty sat near them, and all alike had sores on lips and cheeks and on the hands. Children from five or six years up can be taught to strip, and thus add to the week's income.


Mr HIGGINS - In 1888, I understand.

Mr Hutchison - In Adelaide, a girl can be seen in an Afghan's bedroom making clothes.

Mr Mauger - In Melbourne there are girls working for Afghans.

Mr HIGGINS - I think that honorable members on both sides will agree that some legislation is necessary in order to put an end to these conditions in Australia. It is exceedingly doubtful whether it can be done or not, but we certainly have done some good, and will, I dare say, do more good. I do not think that honorable members wish to have cheapness of goods unless it be the result of less waste of human life.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Is the union label in force in California?

Mr HIGGINS - This criticism was made before the use of the union label was legalized. About 1879, the unions began to use the union label, but its use was not legalized until a fong time afterwards. There is no use in the union label unless the users can be prosecuted for fraud. With regard to the objections to this proposal. I have looked very carefully into the argument that the use of the union label will lead to boycotting. What is boycotting,?

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Does the honorable member know that there are cigar-makers working here under very bad conditions ?

Mr HIGGINS - I do not. I wish honorable members to bear in mind that there is boycotting and boycotting. Some boycotting may be described as perfectly justified ; other boycotting may be described as not justified. If a drummer tries to get a shopman to buy his wares, then so far as the shopman complies with his request he buys less of other men's wares. The teetotaller does his best to ruin the hotelkeepers. Not only does he boycott the hotels, but he tries to prevent other persons from going to the hotelkeepers.


Mr HIGGINS - It is not very fine to the hotelkeeper. I remember that in America, a few years ago, a great number of ladies sang hymns outside the saloons, and did their best to frighten poor men from entering them and having a drink. Some persons justify the teetotallers' endeavours to stop the drinking habit, because it injures society. It is because the drink injures society that the hotelkeeper is boycotted. Why not boycott the sweater, because his doings injure society, too?

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - This Bill will not boycott the sweater.

Mr HIGGINS - In America, there are great difficulties in deciding how far things are lawful in this respect. In the building trade in Philadelphia, there was a strike by the men, who wanted to get eight hours without a reduction in wages. Some of the builders gave in, and one man used to supply these builders with materials. The other builders stopped the lumber man from supplying materials, and he applied for an injunction against them; but the Court held that that boycotting was perfectly lawful, that the builders were perfectly justified in preventing the lumber from being sold to the man who was trying to carry out the trade in his own way. On the other hand, there was the case of an agreement between a brewery company and a union, under which the brewery company said that it' would not' keep any man in its employment beyond a certain time, unless he became a member of a union A certain man got into the employment of the company, but would not join the union. He was thereupon turned out by the brewery company. That was called a boycott, and was punished. Yet, I can see no difference in principle between that and the previous case I mentioned. The same difficulty appears in other instances. If one steam-ship- company endeavours to undercut its rivals, that is allowed ; but if, upon the other hand, a miner is driven out of a coal-mine, because he is not a unionist, that is forbidden. The law with' regard to this point at present is most unsatisfactory. But, at the same time, boycotting, so far as it is lawful and proper, always is an effort on the part of society to get1 rid of an unsocial person. It is simply an attempt on the part of society to assert itself, and to maintain those social relations which are necessary for its existence. In order, however, to reassure honorable members, I may say that so far as boycotting is lawful, it will still be lawful, notwithstanding these clauses ; and, so far as boycotting is unlawful, it will still be unlawful, notwithstanding these clauses. Of course, I apprehend that it will always be legitimate for a unionist to try to induce his friends and acquaintances to buy union goods. I recollect that there was a very famous match factory in England - I think it was Bryant and May's - which for some time had very little custom. Its managers hired a number of men to go round the shops in London, and ask for Bryant and May's matches. The grocers had not such goods ; they had never heard of them. But the men went round again and again until at last the shopkeepers began to ask, " What are Bryant and May's matches ? A number of people are asking for them, and we must buy them." Accordingly, they bought Bryant and May's matches, and the firm thenceforth did a roaring business. I apprehend that there was in that case an attempt on the part of the firm, by lawful means, to push its trade; and I suppose that similarly, so long as unionists attempt to induce their friends to buy none but union goods, there can be no legal objection to that course. But the point comes at which they may try to exercise coercion or intimidation.; a.nd there it is that the law will step in. For if there is one thing which the law must do, at all costs and all hazards, it is that it must maintain order; if! must prevent people from using anything in the way of physical force or intimidation upon others. May I say, also, that there is one consideration that ought to have made the honorable and learned member for Corinella to hesitate in regard to his attitude upon these clauses? I recollect that in the Victorian Legislative Assembly he assisted to pass our present Factories and Shops Act. There is nothing which annoys me more, personally - and I am glad that he is present while I am saying it - than to find him working on the same side as those who, with the same breath, curse both factories legislation and the union label. I recollect the honorable member describing himself at the time to which I refer as a collectivism whatever" he may have meant by that. But I do know that many of his best friends regret very much that he should be found to-day - perhaps owing to circumstances - upon the side of those who are condemning factory legislation, Conciliation and Arbitration Acts, and similar measures. I have read with a good deal of care the remarks of the Victorian Chamber of Manufactures, which seem to be the most connected statement of the views of the opponents of these clauses that I have been able to find. I have a habit - it may be a bad habit - of liking to know what is to be said on the other side before- finally making up my mind. But I must say that a weaker and more untrustworthy statement it never has been my lot to see than in these few pages. I say this, especially with regard to the American cases that have been referred to. They are cited in this document as if they had storrie ;Bearing on the union label, whereas they have no bearing on it whatever. In some parts of the statement the writers of it do not choose to look at the more recent amendments put forward by the Attorney-General. They have assumed everything that has been said by newspapers and bv interested people in reviews and journals in America, but they would not go into a critical examination of the Bill as it stands. For instance, they say -

The principles underlying the union label have been condemned by the highest legal authorities, and, when put into operation, are unlawful and actionable, at the instance of the parties injured thereby.

I never understood how " principles " could be unlawful and' actionable ; but that may be a mere verbal difficulty. I can only say that the union label .never has been found unlawful or actionable in America. It has been held repeatedly in the American States Courts that the union label Acts of the different States are perfectly valid ; and the only thing that has been held apparently to the contrary is that, apart from the union label Acts, the union label itself is noc a common law trade mark.

Mr Isaacs - It has also been held, whenever it has been raised, that the union label Acts are not " special " legislation.

Mr HIGGINS - That is so. Here is an instance, too, of the sneering ignorance of the writers of this document from the Chamber of Manufactures. It says -

It is worthy of note that in none of these cases in the United States, all of which went against the unions, has an appeal been made to the Supreme Court of the United States. The unions appear to shrink from having the law stated by a tribunal whose decision would prevail in every State in the great American Republic.

Would you believe it, sir, that the writers of this document do not know that the Supreme Court of the United States cannot declare upon the constitutionality of a State law at all ? It has no right to declare upon the validity of a State law. Fortunately, our High Court has that right. If any one takes the trouble .to go through this document, they will find - I have looked up the references made in it - that time after time the cases referred to have nothing at all to do with the union label.

Mr Watson - The same remark applies to the cases quoted in the newspapers here.

Mr HIGGINS - -Yes ; the same thing may be said as to them. For instance, here is a reference to a case in Canada, which is put forward as conclusive against the label. It is a case in which Mr. Fullerton gave a certain opinion, which was afterwards approved by the Supreme Court of Ontario. In that case, all that Mr. Fullerton said was that a certain by-law of a municipality was beyond its powers. It had passed a by-law which said that the municipal authorities would only accept union-made goods - clothes and so forth.. All that Mr. Fullerton said was that it was beyond the powers of the men who sat round the council board to-day to bind their successors tomorrow. I do not wish to weary the Committee, but if I went through tlie whole of the cases cited in the document before me, I could show that many of them are akin to this. There are some cases mentioned in the critiques in America, the references to which are, I think, perfectly justified. Mr. Hoyt has said, in his article in volume 165 of the North American Review, thaI there is no provision for enlarging the unions. He has hit upon a real defect, but a defect which we cannot deal with by means of a Trade Marks Bill. I firmly believe that if we are to give the unions any privileges, they ought to be open, unions. They ought to be unions which allow their doors to be thrown open to any qualified workman who may desire to come in. But that, I repeat, is not a matter for a Trade Marks Bill. The next statement is that the unions shall prescribe the rates of wages. Well, that cannot be the effect of the union label in this country. The rates of wages in very many cases - at least it is so in Victoria - will be prescribed by Wages Boards; in other States under Arbitration Acts. Some honorable members seem to think that the fact of the States having Factories Acts and Arbitration Acts is a reason why we should not have union labels. I venture to think that it is an additional reason for having the union label, because industrial legislation, such as that referred to, involves more persons working under reasonable conditions. An employer is in a great difficulty when he does riot know that his rivals are conducting their business under the same terms as himself. But the more you have Factories Acts and Arbitration Acts, the more the employer sees that the same whip will be over the backs of his rivals, as is over his back. I confess that I think that the union label is a mere complement to our Factories Acts and Arbitration Acts. Mr. Hoyt winds up by saying that he has no objection to the union label if it can be treated as a guarantee of satisfactory conditions. We, however, know by experience that trade unions are the best guarantee that we can have - the best practical guarantee - of satisfactory conditions. I quite admit that, logically, honorable members may say that there is no reason why there should not be a sweaters' union. But I should like to see people starting a sweaters' union. I should like to see how it was worked!. I should like to see it register a label. I should like to know the men behind it.

Mr Johnson - This legislation gives no guarantee of quality.

Mr HIGGINS - Then the honorable member does not know the conditions of unionism. He ought to learn more on this subject from experience than from reading. If he only had more experience, he would know that the unions have right through - in Australia, at all events - been the best guarantee the public have had of labour conditions being good ; though I admit that it is only an imperfect guarantee. As to the constitutionality of the clauses, I shall follow the good example of the AttorneyGeneral, and the honorable and learned member for Angas, and say that I think the Government have taken the correct position; - we ought not to decide this matter against ourselves. It is a matter upon which- no one can pronounce with certainty. The strong inclination of my own mind is towards thinking that we have power under the Federal Constitution to declare a union, label to be a trade mark. We 'have a perfect right to make laws for the " peace, order, and good government of the Commonwealth," with regard to trade marks ; and, in doing that, we can define what a trade mark is. If we define what a trade mark is, we can make it include more things, or fewer things, as we please. If we take such a thing as a fancy name or fancy word, which some laws treat as a trade mark and some do not, is it to be said that we cannot say that we will treat that fancy name or a fancy word as a trade mark? I say that if the Legislature can define it can enlarge, and if it can limit itcan also enlarge. I would not presume to deny that the learned counsel, Mr. Cussen. who gave an opinion on this matter, had very substantial grounds for his opinion. He has expressed himself as in difficulty in connexion with the matter, but the Committee should bear in mind1 that Mr. Cussen's opinion, so far as I have seen it, related to the trade union mark as first put before another place. A good deal> of his critique does not apply to the trade union mark, as now placed before this Committee. I feel that it can be decided upon a very simple test case. All that requires to be done is that an employer who does not employ union labour should use a union label, and then be prosecuted1. It could then be arranged to have one proceeding before the High Court, and the thing would be done.


Mr HIGGINS - Yes; but it might be by arrangement.

Mr Johnson - That would not alter its character.

Mr Isaacs - It would be a good test whether this will not be a Bill to prevent fraud.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Frauds are generally by arrangement, are they not?

Mr HIGGINS - At all events it would not be difficult for the very virtuous gentlemen whom the honorable member for North Sydney had in his mind to have a case stated by agreement and tried, without any fraud being committed. The more I have thought over this matter the more I feel that better than all the complicated Factories Acts and Arbitration Acts of these States will be the growing feeling amongst employers and employes that the public look not only for good bargains, but for good conditions for the workers, and will insist upon having something to show that the goods which they purchase, have been produced under satisfactory conditions.

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