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Thursday, 30 November 1905


Mr ISAACS (Indi) (Attorney-General) . - I move -

That the following new clause be inserted : - 73. (1.) No person shall -

(a)   falsely apply to any goods for the purpose of trade or sale; or

(b)   knowingly sell or expose for sale, or have in his possession for sale or for any purpose of trade or manufacture any goods to which there is falsely applied ; or

(c)   import into Australia any goods not produced in Australia to which there is applied a mark which is a distinctive device, design, symbol, or label registered by any individual Australian worker or association of Australian workers corporate or unincorporate for the purpose of indicating that articles to which it is applied are the exclusive production of the worker or of members of the association (and which mark is hereby declared to be a workers' trade mark), or any mark substantially identical with a registered workers' trade mark, or so nearly resembling it as to be likely to deceive.

(2)   The workers' trade mark is falsely applied unless in truth -

(a)   the goods to which it is applied are exclusively the production of the worker or of members of the association ; or

(b)   the goods to which it is applied are in part but not exclusively the production of the worker or of members of the association, and the mark is applied in such manner as clearly to indicate that its application does not refer to, describe, or designate the parts of the goods not being the production of the worker or of members of the association ; and

(c)   the mark is applied to the goods (being goods produced in Australia) by the employer for whom they are produced, or, with the authority of the employer, by the worker or a member of the association registering the mark.

(3)   In this section - " Association " includes any number of associations acting together, and in such case the members of the "association" shall be the members of the associations which are acting together; " Production " means production, manufacture, workmanship, preparation, or product of labour; " Produced " has a meaning corresponding with" production."

Penalty : Fifty pounds, in addition to any liability to forfeiture provided by law.

For a very long time, in fact, ever since the question of what we may fairly and properly call workers' trade marks has been before the country, practically one side only has been presented to the public ; and I desire now, as briefly as , I can, to put forward the views that have impressed themselves upon the Government, and have led them to believe that the proposals now made by them are justifiable, and ought to be adopted. Although the views that have been presented in some quarters in opposition to our ideas have been scarcely due to ignorance, I believe that in many instances they have been due to misconception - misconception not only as to the tenor of the proposals placed before the House, but misconception also as to the history of the subject and the way in which it has been dealt with in a far larger community than ours, and one in which mercantile interests of huge proportions are involved.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Is the AttorneyGeneral referring to the United States?


Mr ISAACS - Yes. I should like, in the first place, to read the clause, which presents no difference in principle or substance from the series of amendments for which it has been substituted. I have, I believe, in the clause now before us put into more concise form the series of amendments which were issued under date 15th September. Those amendments related both to union trade marks, and to individual workers' trade marks, under the combined heading of " workers' trade mark." I shall read the clause, because I believe that the language into which I have put these proposals correctly represents what those in favour of them have always maintained is the root principle of the proposed legislation, that is to say, the prevention of fraud. I shall endeavour to the best of my ability, to put before the Committee the facts and circumstances which I think justify the proposal. I shall also endeavour - fairly, I hope - to examine some of the objections that have been raised very often and very ably, if I may presume to say so, by several honorable. members. The proposed clause 73 reads in this way -

1.   No person shall -

(a)   falsely apply to any goods for the purpose of trade or sale ; or

(d)   knowingly sell or expose for sale, or have in his possession for sale or for any purpose of trade or manufacture any goods to which there is falsely applied ; or

(c)   import into Australia any goods not produced in Australia to which there is applied a mark which is a distinctive device, design, symbol, or label registered by any individual Australian worker or association of Australian workers corporate or unincorporate for the purpose of indicating that articles to which it is applied are the exclusive production of the worker or of members of the association (and which mark is hereby declared to be a workers' trade mark), or any mark substantially identical with a registered workers' trade mark, or so nearly resembling it as to be likely to deceive.

So far, there is a prohibition against false application. Then follows a definition of what false application means -

The workers' trade mark is falsely applied unless in truth -

(a)   the goods to which it is applied are exclusively the production of the worker or of members of the association ; or

(b)   the goods to which it is applied are in part but not exclusively the production of the worker or of members of the association, and the mark is applied in such manner as clearly to indicate that its application does not refer to, describe; or designate the parts of the goods not being the production of the worker or of members of the association ; and

(c)   the mark is applied to the goods (being goods produced in Australia) by the employer for whom they are produced, or, with the authority of the employer, by the worker or a member of the association registering the mark.

Then there is an inclusive definition of " association," declaring that it means any number of associations acting together, in which case the members of the combined associations will be the members, of each separate association. The clause further provides - " Production " means production, manufacture, workmanship, preparation, or product of labour ; " Produced " has ameaning corresponding with " production. "

Penalty : Fifty pounds, in addition to any liability to forfeiture provided by law.

That, of course, relates to cases in which goods are imported, and may be liable to forfeiture for a breach of the Customs law. It is merely inserted to guard against accident, and the belief that the only penalty provided is a monetary one. Assuming this Trade Marks Bill to be constitutional - and I shall deal with that aspect of the matter hereafter - my viewis that these clauses only confer upon workers the same advantages that are extended to capitalists in the remainder of the measure. Before I resume my seat, I shall offer to the Committee the testimony of Judges who have expressed the opinion that it only places the efforts of the labourer in the same category as the tangible property of the employer or ordinary tradesman is put by other sections of the trade marks law. That is the foundation of the morality, if I may call it such, of giving to the worker the power to register his trade mark, irrespective of whether he is a single worker, whether he is a unionist, or whether he is combined with other workers who are not members of a union at all. He can registera trade mark without anybody's consent; but in no case can he affix it to any goods. It is quite clear that it is improper that it should be falsely applied. Under this clause, if a worker applies that mark to any goods of his employer without his employer's authority, he is liable to a penalty of£50. A trade mark cannot lawfully be attached to any goods, except by the employer himself, or bysome member of an association - if it be an association mark - or by the worker himself - if it be a worker's mark - with the authority of the employer. In short, I take it that when we are passing a Trade Marks Bill our aim should be to make no discrimination between various classes of the community. I believe that I am right in saying - and I hope I shall be able to prove it to the satisfaction of honorable members - that this Bill represents an effort to place workers and proprietors of goods - " capitalists," or whatever we may term them - upon an equality before the trade marks law. At the present time the whole contention of honorable members upon the other side of the Chamber is that a worker has no right to register a trademark. I intend to examine that argument, and to discuss why he should have that right. If it be lawful, and if it is a right thing to do from a moral stand-point, I do not see why weshould not allow him to register a trade mark.If it be a wrong thing to do morally, it is certainly not proper for us to permit him to register it. But I take it that there can scarcely be any difference of opinion upon the question that it is right to say that in respect of any mark, which a worker may adopt to distinguish the product of his labour, or which an association of workers - whether it be a trades union or not - may adopt to distinguish the product of the labour of its members, it is a moral offence, and ought, if possible, to be made a legal offence to forge that mark. That is all that the clause to which I refer provides. As honorable members will notice, it imposes a prohibition upon a person falsely applying a trade mark to any goods for the purposes of trade or sale. It also imposes a prohibition against knowingly selling or exposing for sale, or having in possession for sale, or for any purpose of trade or manufacture, any goods to which such a mark is falsely applied. Then there is a further prohibition upon the importation of goods into Australia bearing an Australian mark, when those goods have not been produced in Australia.


Mr Higgins - The Attorney-General has omitted the word " knowingly " in that connexion. He regards it as impossible to introduce such goods into Australia unknowingly.


Mr ISAACS - It is absolutely impossible to honestly import into Australia goods bearing a mark to the effect that they have been made in Australia, but which have not been 'produced here. That is the position. The remainder of the clauses must, I believe, be recognised - if this principle be once adopted - as purely machinery provisions. The registration of a mark is nothing more or less in this case than it is in the case of an ordinary trade mark. In ordinary business circles, a man may have a trade mark. It may be the representation of a horse, as applied to salt. If that is the trade mark of one business man, and another person invades it by selling salt with the representation of a horse upon it. the owner of the trade mark can appeal to the Court, independently of any Trade Marks Act, and restrain the thief. The Trade Marks Act was introduced to allow registration for the purpose of more effectively providing evidence and remedies. Therefore, registration, in every case, is simply for the purpose of allowing the public to see what trade marks are protected, and to establish - after the lapse of a certain time, at all events - Beyond all doubt who is the owner of a specific trade mark, to provide remedies of a comparatively simple nature, and, in some cases - if the right to the trade mark is contested and withstood - to have the trade mark taken off the register. In short, it is to allow the public to know to whom the registered trade mark belongs, and to give the owner greater facilities for protecting his property. If we admit that the workers have the right to some symbol designating the product of their labour, there can be no objection to allowing them to put it on the register, because by so doing the public will be protected in every way. If we do not allow that, the result might be that a worker, a union, or an association which is not a union, might by advertisement or in some other way, notify the public that a certain mark belonged to them, and the employer who wished to apply it might be caused great confusion, because he might have grave doubt as to whether he was correctly applying it by acting upon the consent of one person when he ought properly to get the consent of another. Without this Bill at all, any trade union, or any worker - I will take the case of a trade union, for the purpose of my argument, because that is the organization which is uppermost in the minds of honorable members - can at the present time pass a resolution adopting a certain label. It can advertise it in all the newspapers-


Mr Thomas - The' Typographical Union at Broken Hill has a label of that sort.


Mr ISAACS - The fact that it is being done strengthens my argument that it may be done.


Mr Frazer - The Tailors' and Tailoresses' Society upon the gold-fields of Western' Australia also have a label.


Mr ISAACS - Yes, I have seen their label. It was exhibited by a deputation which waited upon the previous Government.


Mr Lonsdale - Then why does the AttorneyGeneral desire the introduction of. these clauses?


Mr Tudor - To block the pirate.


Mr ISAACS - At the present moment, independently of this Bill, a union may adopt a label, and an employer, if he chooses, may attach that label to goods which answer its description. In other words, if the goods are the product of union labour, an employer would be doing no wrong to the public if he put that label upon the goods so manufactured. But supposing - as is often the case in connexion with trade marks - the public recognise that label, and wish voluntarily to promote the welfare of that union by purchasing goods to which it is affixed ; what would be the inevitable course of proceeding amongst those who do not observe union conditions? Undoubtedly there would be a few - sufficient in number to break down the guard that the public had, and so to deceive and injure them - who would put that mark upon goods which were not truthfully described. There would not be a ready - if any - means of restraining the man who was undoubtedly a rascal.


Mr Lonsdale - Cannot such men be punished under the present Act?


Mr ISAACS - They cannot. Let me tell honorable members what happened in America, because it will serve to point what I am now saying. In 1874, the union label was first introduced in the United States. In that year the state of affairs existing in California, and particularly in San Francisco, was very bad indeed. In the cigar trade, white persons who were working at a proper wage found that there were shopkeepers and manufacturers employing others - some white and some Chinese operatives - at what would be starvation wages from a union worker's point of view. They found that these persons were employing coolies, and also women and children in what were called small rat tenements, in manufacturing cigars, which were circulated among the people, and were, in some cases, dangerous to human life.They were certainly made under conditions of labour which tended to greatly depress the conditions of living.


Mr Liddell - Were the cigars considered dangerous because some of the makers were suffering from leprosy ?


Mr ISAACS - There may have been such a danger, but that is not the point. What happened? The unionists met together, and, just as we desire to have a White Australia, determined to stand out for a White California. They therefore adopted a white label, and decided that it should be affixed, with the consent of the employers and the unions concerned, to the products of those who gave reasonable wages and made cigars under proper conditions. The public supported the unions. They set their faces entirely against the sweating, improper, and dirty conditions that had obtained, and the white label achieved popularity. But unscrupulous persons, who were not adhering to reasonable conditions of labour, affixed the whitelabel to their products, with the result that: the unions sought protection in the CourtsDecisions were then given, which,in some cases, have been cited in opposition to our proposal. The Court said to the unions, " We cannot say much for the morality of the action of which complaint is made, but, viewing the matter from a strictly legal stand-point, we see no ground for protecting the unions. The white label is not at common law, apart from statute law, a trade mark in the strict sense of the term. The unions are not carrying on a business of their own, and we cannot consistently, with precedent, give them the protection they seek." What did the unions do? Finding themselves thrust aside in this way, they determined to appeal to the public to support them. They advertised in the newspapers that A, B, and C, whoever they might be, were the only persons authorized to affix the white label to their goods, and they asked the people to support them. That has been described as boycotting. It was. an intimation to the public as to who were justly and truly affixing the white label, to their goods. When the public found from experience that this was a proper system to support, the Legislature stepped in and passed a law dealing with the subject. A provision was passed similarto that which was agreed to by the. Senate, but which I thought too drastic, and not necessary in this country. I have entirely altered that provision, which was passed in the United States of America for reasonswhich will be obvious to honorable members, nowthat I have related a portion of the history of the matter, and which are certainly inapplicable here. I altered it because, as it stood, it would have given the unions here the same power as is enjoyed by unions in every State where the union label has been adopted - the power to give or! refuse permission to place the union label on all goods. What happened in America? The question was dealtwith in various Courts. The hatters and clothiers took up thematter, and issued a union labelin the same way as other unions had done. But in each case, unscrupulous persons applied it to goods which did not deserve in truth to bear the label. Time after time the unions went into Court, and weretold that, from a strictly legal point of view, they could not. act as they desired. But gradually the sense of the people of the United States so manifested itself that in a few years Legislature after Legislature adopted the union label law. 1 wish to emphasize the . point that such a law was not passed by a chance vote in one Legislature. It was not the result of one rapid panic vote. Year after year the Legislatures of forty large, medium-sized, and small States and territories, having a. population of about 68,000,000, adopted that law. Is not that a strong manifestation of public opinion in favour of some such provision? There is another point which I wish to put to honorable members as a fair subject for consideration.We know that the American Legislatures, if controlled at all, are controlled not by the poor, but by the rich. We know that for some reason or other American Legislatures are, to a large extent, favorable to the large and wealthy corporations. If that be so, we may judge of the strength and the volume of publicopinion which has forced upon those Legislatures the enactment of such a law.


Mr Conroy - I think that this label will have a destructive effect as regards the workers.


Mr ISAACS - The honorable and learned member is anticipating me. I should like to deal with that matter presently. I wish to put before the Committee an extract from the Bulletin of the Bureau of Labour of the United States of America, No. 54, issued in September, 1904.


Mr Mauger - That is an official organ ?


Mr ISAACS - Yes, it is the official organ of the United States. At page 1479 of this Bulletin, we find the following : -

Forty States and Territories have adopted laws allowing trade unions, federations, and other labour organizations to adopt labels or trade marks, to be used to designate the products of the labour of their members, and prohibiting the counterfeiting or the use of such labels or trade marks by unauthorized persons.

The names of the States and territories are given in alphabetical order; but I propose to put them before the Committee in the order in which I have secured them from another source, and to show the population of each Statein which such a law as this has been adopted. The following table gives the names of the various States which have adopted union label laws, and their population in 1900 - the latest statistics that I have been able to secure -

 

Thus a vast proportion of the people of the United States have united in passing such a law. As Legislature after Legislature - Legislatures that are not controlled by the workers - have taken this action, should we not reasonably consider whether there is not something of a moral claim beneath all this? As many objurgations have been addressed to me in respect of my action in this connexion, I should like to remind honorable members, as I did to a certain extent a few minutes ago, that the original of this proposal emanated from the Senate. The Watson Government introduced the original Trade Marks Bill, and as many honorable members have correctly asserted, it then contained no provision for union labels.


Mr Liddell - They were then acting on their own responsibility.


Mr Watson - We acce'pted it as drafted by the first Deakin Government.


Mr Deakin - The Bill as introduced by the Watson Government was drawn by the first Deakin Government.


Mr ISAACS - That is an important point. The Watson Government were only a short time in office, and had not very long to consider the matter. Whilst the Bill was before the Senate, what took place ? It was read a first time at the instance of Senator McGregor, a member of the Watson Government, on 14th July, 1904. It. was read a second time on the 27 th July, 1904, and on 10th August of that year, while the Watson Government were in office, the part relating to trade union marks was introduced as an amendment by Senator Pearce. On the following clay, the first clause in that part was agreed to without a division. The remaining; clauses" of the same part were proceeded with, and the next one was also agreed to without a division. Then Senator Drake moved the insertion of a clause forbidding trade unions to refuse to authorize a manufacturer or employer who adopted the rate of wages and the hours of employment fixed in reference to the trade of such unions to apply the union trade mark to his products. That clause was rejected by a majority of ten. The remaining clauses were agreed to without division, and the Bill was reported to the Senate with amendments. On the 18th August, the Reid Government came into power, but the Bill did not leave the Senate until 30th November, some three and a half months later. During that time it was under the charge of the Attorney-General in that Administration, Senator 'Symon, but there was no intimation that his Government were opposed to these clauses. On one or two occasions, Senator Symon gave expression to his own individual opinion, . and I would call attention to what he said. On the 7th September, 1904 - the proceedings are reported on pages 4335 of Vol. XXI. of Hansard - the honorable gentleman moved that the Bill be recommitted for the reconsideration of clauses 15, 72, and 93. Clause 72 was one of the trade union label provisions, and it was proposed to recommit it to enable Senator Pearce to move an amendment which would strengthen it.


Mr Higgins - That must have been part of a wicked bargain between the ReidMcLean Ministry and the Labour Party.


Mr ISAACS - I am merely stating the facts. Senator Pearce desired, as I read the debate, to amend the clause so that " union " would cover, not only an individual union, but an association of unions, and Senator Sir Josiah Symon moved the recommittal of the Bill to enable that to be done. That he was not hostile to the amendment is shown bv the fact that in Committee he suggested words which would better carry out Senator Pearce's purpose, and, his suggestion having been accepted, the clause was amended accordingly. It is only fair to add that he said that he thought it a mistake to insert these provisions in the Bill. He remarked, speaking of Senator Pearce -

I am not saying one word adversely or otherwise with regard to the principle he lias in view, but I think that from his own stand-point it is worth consideration whether he should ask us to insert these provisions in a Bill relating to what is an entirely distinct matter - trade marks - and whether it would not be better to have a separate piece of legislation dealing with this particular subject.


Mr Watson - The present Opposition would be opposed to these provisions even if they were contained in a separate Bill.


Mr ISAACS - Senator Sir Josiah Symon expressed the opinion that he would be opposed to them, even if they were embodied in a separate measure. I do not think that he left himself open to misunderstanding on that point. But he said - T wish honorable members to remember these words when the constitutional question is raised -

I know that in America - and that is the pattern which mv honorable friend has followed - some enactments for this purpose have been passed : but it is noticeable that these are not Federal enactments. Our Constitution enables us to deal with " trade marks," and it is a moot question as to what is meant by that term.

There is there no expression of the opinion that it is outside the cowers of this Parliament to enact this legislation. He continued -

I am aware that the question was raised and debated here, and has been left to the determination of the High Court.

Senator Sir JosiahSymon then put it to Senator Pearce whether it was worth while. to deal with the subject in this Bill, instead of in a separate measure. He said -

I merely throw that out as a suggestion, but if he desires to retain the clauses, the words which I have suggested will meet his view, instead of the word " association."

The honorable and learned" senator, who, at the time, represented the Government, did not express any opinion on his own behalf, or on behalf of the Administration, hostile to these clauses. The clause was amended as I have stated, without division. Then, on the 23rd November, when the Reid Government had been in power for a long time - my authority is the report contained on page 7282 of Vol. XXIII. of Hansard - Senator Sir Josiah Symon, in compliance with a promise made to Senator Pearce, moved the recommittal of the Bill for the reconsideration of a proposed new clause, 8a, but he did not seek the reconsideration, of the .trade union label clauses, although Senator Lt. -Col. Gould wished to have those clauses reconsidered.


Mr Glynn - Surely the expressions of an individual Minister are not to be taken as the opinions of the Ministry? If that test were applied to the present Ministers, what would be the result?


Mr Watson - In this case Senator Sir Josiah Symon spoke as the representative of the Government.


Mr ISAACS - Does the honorable and learned member for Angas refer to expressions of opinion made by an honorable member when a member of a Government, and representing the Government? That was the position of Senator Sir Josiah Symon at the time.


Mr Lonsdale - Senator Sir Josiah Symon and the Ministry of the day were opposed to these clauses.


Mr ISAACS - A vote was taken on the question that the Bill be recommitted, and Senator Sir Josiah Symon expressed himself as personally opposed to the clause, but added -

There can be no harm in reconsidering the matter, and if any honorable senator desires that we should reconsider other clauses, I shall be equally ready to assist him.

So far as I' can discover, the Government attitude was not declared to be hostile to the clauses, but they were not recommitted', because, on a division being taken on the question, the voting was equal. I think that that ite the occasion to which the honorable and learned member for Corinella has already referred. Then, on the 30th November - as witness the report on page 7594 of Vol. XXIV. of Hansard-Senator LtCol. Gould again moved the recommittal of the Bill for the reconsideration of the trade union label clauses, an. the motion that the Bill be read a third time. He expressed himself against the principle of the clauses, but the chief reason which he urged for the recommittal was that under the clauses as they stood, a manufacturer, although paying union rates of wages, and observing union hours and conditions, could not use the union trade mark unless a union saw fit to allow him to do so. That defect has now been cured. The honorable senator, however, was against the principle of the clauses altogether. Senator Sir Josiah Symon, as the representative of the Government, would not agree to the proposed recommittal, and asked Senator Lt. -Col. Gould not to press his motion to a division. He said -

I do not think I ought to sacrifice a Bill because of some provision in it which I do not like.

He added that, if necessary, the measure would come before the Senate again after it had been dealt with by the House of Representatives. But if this House had accepted the union label provisions, they could not have been again considered by the Senate. There is no indication, so far as ,1 can discover - other honorable members may be more fortunate - that the members of the Reid-McLean Administration, as a Government, were opposed to these provisions during the three and a half months which elapsed between the 18th August, when they came into office, and the 30th November, when the Bill was sent from the Senate to this House.


Mr McLean - The last Administration did not introduce the Bill.


Mr ISAACS - No; but they had an opportunity to express their views as a Government in regard to its provisions, through their representative in the Senate. I have referred to these matters because it has been said in some not very well:informed quarters - I do not remember that it has been said by honorable members in this Chamber - that the present Government introduced the trade union label provisions. What we have done has been, not to introduce those provisions, but to make them as fair as possible, and great credit is due to the Labour Party for having honorably agreed to take a much less degree of protection for the trade union label than, is given in any State of the American Union. I have in- formed honorable members of the nature of the trade union label, and have given its history, so far as I can ; let me now consider the objections to it. The chief objection which has been raised is that, in America, it has resulted in boycotting. I think that what has happened in America has been greatly exaggerated, and that, if the American reports are consulted, it will be found that the boycott, whenever its existence has been proved, has been repressed. I use the word " boycott " in the sense of intimidation, or coercion, by an unlawful act of some kind. If honorable members say that it is boycotting for a union to openly and frankly appeal to the public to support it, they attach to the term a signification which I cannot accept. It is no more boycotting for a union to ask the public in a peaceable way to support it than for a candidate for office to ask his electors to vote for him in preference to his rival. But if there is intimidation, coercion, or oppression by any unlawful act, that is wrong, and, so far as I know, such proceedings have been universally and uniformly repressed in America, in England, and in this country. When the subject was first discussed, we heard a good deal about the American decisions. It Avas said that in America it has been decided that the trade union label is not a trade mark, that its use has been discountenanced by the Court, and held up to obloquy by the Judges. Case after case has been quoted from the American newspapers, and repeated ad nauseam, to show that the trade union label has been used in America as a,n instrument for boycotting. I have found no case, however, in which a decision has been given against the validity of the union label on the ground that it was being used for boycotting. What I have found is that unions have been prevented from boycotting, although, in one or two cases, the use of the union label was part of the facts stated. The instances to which I refer are of this kind : No employer can lawfully use a trade union label without the consent of the union, and agreements have been made whereby, in consideration of being allowed to use a union label, an employer has agreed to observe union conditions. Unions have been accused of boy.cotting by refusing to allow the use of their label to those who would not adopt such conditions. But the decision of the Court would have been the same if, without the withholding of the label, coercion had been used against a manufacturer, because he did not employ union men or observe union conditions. Then we were told that there were a number of cases after the Acts had come into force, and we were also frequently informed-though not lately, because that idea has been utterly exploded - that the American Courts had pronounced the Union Label Acts ss unconstitutional, and contrary to the United States fourteenth amendment, and also to the Constitutions of the States. I can say confidently that, in no case that I have looked at has there been one single decision impugning the constitutionality of these Acts. I challenge any honorable member to produce a decision showing that one of these Acts was Unconstitutional. If it had been opposed to the fourteenth amendment of the Constitution of the United States, no State would have had power to pass such an Act under any circumstances. And, therefore, we may rest perfectly assured that all that we have heard about the Acts having impaired the liberty of the citizens of the United States, and being contrary to the United States Constitution, is all moonshine.


Mr Glynn - The New York Court of Appeals stated that although it was indicated to them that the Act was passed with a view to permit of bovcotting, they could not allow the decision to rest on that ground.


Mr ISAACS - That does not affect what I say one bit. I maintain that every one of these Acts is in operation, and is unchallenged to-day. In case after case the Acts have been enforced, and have ever since their enactment been held to be valid, constitutional, and binding. I have a list here of some fifteen cases which have been tried - some before the Act, and some after it - and I wish to direct attention to the fact, which' is very instructive, that every one of these cases has arisen through unscrupulous persons counterfeiting the label. Before the Act was brought into operation, these offenders were able to go away, triumphing in the fact that in spite of their dishonesty the law was not strong enough to convict them - thev were honorably acquitted on a point of law. These people have now been repressed, and in case after case convictions have been upheld. In the case of Colin v. People, Illinois, 1894, 41 American S.R., 304, the conviction was upheld. In the case of the People v. -Fisher, New York, 1894, 50 Hunt, 552, the conviction was upheld.

In the case of the State v. 'Bishop, Missouri, 1895, 49 American S.R., 569, the conviction was set aside, but the Court held that the Act was perfectly good, and the only reason the conviction was set aside was because a guilty knowledge had not been proved. In the same year, in the case of the State v. Bernsheimer, Missouri, 62, Miss. Appeals, 165, it was held, because there was no Act, that the label was not a trade mark. In the case of Hetterman v. Powers, kentucky, 1897, 80 Am. S.R., 637, the bill was filed in 1890, before the Act was passed, but the Court gave its judgment on the morality of the case, and although the label was not a technical trade mark, thev accorded it protection. In the case of Schmals v. Woolley, 1898, New York, 73 Am. S.R., 637 1 the Equity Court of Appeal in New Jersey upheld the right' of injunction, and decided that the Act was correct. In 1899, in the New York case of Perkin v. Hcert, 70 Am. S.R., 483, the right of injunction was upheld. I should like to read at this juncture what the Court of Appeal in Equity had to say on the subject. They had to consider the constitutionality of the union trade mark, and they made some observations as to the right of a workman to have a mark Indicating his workmanship. This was the judgment of the final Court of Appeal of the State - the highest Court of Appeal for such a subject -

The case was on behalf of the Union Hatmakers' Association for an injunction against the defendants to restrain them from using a counterfeit Trade Mark and Label. On page 643, the Court asks - Why should the specific personal element of ownership of merchandise at the time it is put upon the market be deemed important?

Then the Court proceeded to say -

The public object sought in the protection of trade marks is to bring upon the market a better class of commodities, and the means for attaining that object is by securing to those who are instrumental in supplying the market, whatever reputation they gain by their efforts toward that end. The workman by whose handicraft the commodity is made is one of these instruments, just .is his employer, who furnishes the raw material, and owns and sells the finished product; and if the former is permitted by the owner to place upon the commodity a mark to indicate whose workmanship it is, and thereby commend his workmanship to other employers, this license from the owner should be deemed a right- against everybody else. His aptitude in his trade is his property, and if by a mark he can have it identified as his in the market, he may enhance *its saleable value, and thus secure the same sort of advantage as his employer by similar means. No reason exists why this advantage should not be protected by the Courts in the same manner and to the same extent as is the like advantage of the employer. The mere fact that one rather than the other of these persons has placed the product upon the market has no rational bearing upon the matter, for both alike have had the market in view in the efforts they have made, and through those efforts the market is supplied.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - That is all right, as applied to a picture, but is nothing as applied to a pair of boots.


Mr ISAACS - A good many persons readily subscribe to any moral precept, but when it is applied find it inopportune to comply with it. I am reminded of the New York legislator who was asked his opinion in regard to a liquor prohibition law. He said that he was strongly in favour of the law being passed, but against its coming into operation.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - This Bill would prevent the possibility of granting the protection spoken of in the judgment quoted.


Mr ISAACS - I differ entirely from the honorable member.


Mr Higgins - Does the AttorneyGeneral state that there is not a single instance of a Union Label Act having been held to be unconstitutional?


Mr ISAACS - I do not know of one.


Mr Robinson - Does the honorable gentleman know of a case in which it has been held that a union label is not a trade mark?


Mr ISAACS -The honorable and learned member has only just come into the Chamber. I have already traversed that ground. At page 644, the decision to which I have referred continues in reference to the union of the journeymen hatters -

We understand from the bill that the members of the association represented by the complainant are connected together as journeymen hatters; that their skill in this trade, and their mutual assistance in profiting by its practice, form the motive and chief aim of- their association. The connexion is as clearly one for business purposes as is that of members in a partnership, or of stock-holders in a corporation. Although it is a comparatively novel species of relationship, it has become an established one, and therefore calls for the application of those general principles of law and equity which are applied to other species of business associations. According to these principles, we think a workman or a number of workmen engaged in the same branch of industry, and banded together for their mutual profit in the pursuit of their common vocation, may acquire a right of property in a trade mark designed to distinguish their workmanship from that of other persons, and that a trade mark so owned is entitled to the same protection as other trade marks.

In that case it was held that -

A number of workmen engaged in the same branch of industry may band together for their mutual profit, in the pursuit of their common industry, and acquire a right of property in a trade mark designed to distinguish their workmanship from that of other persons, and such trade mark is entitled to protection.

Then, in the case to which I previously referred - that of Hetterman v. Powers, in Kentucky, the Court, amongst other things, said -

In order to get the benefit of the superior reputation of cigars made by them, the appellees select and apply the label as a distinguishing brand or mark. And it would be strange if this thing of value, thiscertificate of good workmanship, and which makes the goods made by them sell, and thus increases demand for their work, be entitled to no protection, because those making the selection and application are not business men, engaged in selling cigars of their own. The man who is employed for wages is as much a business man as his employer in that larger sense in which the word " business " has come to be used by statesmen and legislators.


Mr Kelly - Why does the AttorneyGeneral address all this to members in the Labour corner?


Mr ISAACS - Is there any use in addressing it to the honorable member?


Mr Kelly - Plenty ; because I am still open to conviction.


Mr ISAACS - In the case of Strasser V. Mooneliss, which was a case of boycott, the Court held that there was no competent evidence of boycott, but they said -

On the whole case, therefore, we are of opinion, that the law may be justly invoked by organized labour to protect from piracy and intrusion the fruits of its skill and handiwork, and that brain and muscle may be the subjects of trade law rules as well as tangible property.


Mr Higgins - Is there any instance of a Union Label Act having been repealed by a State?


Mr ISAACS - Not entirely repealed, except with the object of substituting a better Act. So far as I have been able to trace the matter, the States have gone on, clown to 1903 and 1904, passing these union trade mark laws, and in no case can I discover that they have receded. May I point out, for the information of honorable members, that in 1898 only twenty -eight of the States territories had union trade mark laws; but during the six years that have elapsed, the number has been increased to forty.Then it has been stated that the conditions in the United States are different from ours ; that in America they have no labour laws. I have heard it stated that there are no laws which in any way re semble our factory, anti-sweating, or industrial conciliation laws, and so on. In one sense, and to a limited extent, that is true. That is to say, I do not think there is any Act which, from the beginning, compels arbitration and conciliation. I am clear, from what I have seen, that with a very few exceptions there is no law fixing wages generally. But there is a huge body of labour legislation which in all other respects is quite as stringent as ours for meeting sanitary and humane conditions, giving protection to wages and to the labourer, and in some few cases fixing the wages, more particularly for work done for the State or for municipalities. I intend to briefly indicate the nature of these laws. There are laws in twenty-seven States providing for the appointment of inspectors of factories and work-shops, whose duties consist in visiting and inspecting factories, work-shops, mills, and, in some cases, mercantile establishments, sweat-shops, bakeries, laundries, and building construction work, and enforcing the laws concerning the same. In regard to mining labour, a very extensive set of statutes has been passed in the mining States. I can give honorable members the details if they desire them. Then the statutes relating to hours of labour which have been enacted in various States must be considered in five groups, namely - (1) General laws, which merely fix what may be regarded as a day's labour in- the absence of contract ; (2) laws defining what shall constitute a day's work on public roads ; (3) laws limiting the hours of labour per day on public works generally ; (4) laws which limit the hours of labour in certain occupations ; (5) laws which specify the hours per day or per week during which women and children maybe employed. The statutes considered in the first four groups relate to employes regardless of age or sex. Then laws exist as to the payment of wages - that is, the times and mode of payment - certainprivi leges and special protection in relation to wages, such as freedom from attachment of wages, preference given- to wages, prohibition of deductions from or fines upon wages. In some States notice has to be given - in some cases thirty days' notice - before reducing wages. Four States have statutes in force fixing the minimum wage rate for labour on public works. In California and Nebraska the minimum rate is fixed at 2 dol. per day, the law in Nebraska requiring the work to be performed by union labour. Nebraska has a population very nearly, if not quite, as large as that of Victoria. A Delaware statute provides that the daily wages paid for a legal day's work to labourers,- workmen, or mechanics in the employ of the municipal corporation of the city) of Wilmington, or of any contractor or sub-contractor for public works for that city, shall not be less than the prevailing rate for a day's work in the same trade or occupation in the locality where the work is done. Then there are laws as to employers' liability, coercive boycotting, black-listing on the part of employers, and intimidation of employes and employers. A Federal trade union law, which was passed on 29th June, 1886, provides for the incorporation of international trades unions. " National trade unions," within the meaning of the Act, signify associations of working people having two or more branches in the States or territories of the United States for the purpose of aiding their members to become more skilled and efficient workers, for the regulation of their wages and hours, and for securing conditions of labour, or benefits such as obtain in friendly societies, or such other objects for which working people may lawfully combine.


Mr Higgins - Under what power was that legislation enacted?


Mr ISAACS - Under the Inter-State commerce sections of the Constitution, I think. That shows the extent to which Congress has gone. Whether its action is constitutional, I am not prepared to say. But the fact remains that in America the Federation has done what we are told it is improper to do - it has extended Federal recognition to trade unions. Then laws have been passed creating Boards of Conciliation and Arbitration. These bodies differ very much in many of the States, as well as under the Congressional law. Thev are appointed - in some cases temporarily, and in others permanently - and an opportunity is given to the unions to appear before them, f they do so appear, the decisions of the Boards are binding, and can be enforced. In my opinion it is not a valid argument to say that no labour laws have been enacted in America. As a matter of fact, very extensive labour laws have been passed there. I should like to ask honorable members who urge that in Australia we have industrial and factory legislation. and that, therefore, no necessity exists for the introduction of the union label, " What is the constant cry that we hear in regard to that legislation from those whom they represent " ? Are we not frequently told that such laws are injurious, that they are not effective, and that they ought to be repealed? Do we not hear that they do not prevent sweating, and that they only make matters worse? " Are we not constantly assured from those honorable members, and the section of the community whose views they so ably represent, that that sort of legislation ought to be repealed as quickly as possible? In the view which I am now presenting, the question at issue is not union as against nonunion labour. It is a question of the workers, as a great body, asking that the same recognition in trade marks law should be extended to them as is extended to those who are not workers. They say, " It is true that in. many cases litigation has to be resorted to to get our rights. It is true that in too many instances it is difficult to get exact justice without friction, and without irritation,' by means of arbitration. Tt is difficult to secure exact justice in many cases by means of wages boards. We desire an opportunity - but only with the employers' consent - to ask the people of Australia whether they are willing to support us. We wish to appeal to them peaceably, and apart from any restrictive enactments." That is a fair and strong argument. The unionscannot possibly succeed unless public opinion is with them. If my honorable friends opposite are right, and if the public are against them, the very worst thing they can do is to put a union label upon their goods. If public opinion is in favour of supporting union labour, is it not a fair thing to give it a chance of doing so? If the people are opposed to union labour, is it not a very good thing - from the standpoint of those who oppose this Bill - that the unions should have an opportunity to attach a distinctive label to their goods at the earliest opportunity ? If the public want goods to which a particular mark is affixed, why should not they have them? When we are told that only a minority of unionists desire the adoption of the union label, is not that a cogent argument that they will not boycott the rest of the people ? The unionists of Australia number only about 7 per cent, or 8 per cent, of the population.


Mr Kennedy - But they make it very uncomfortable when they start out for scalps.


Mr ISAACS - I am putting this argument apart from any feeling, because I wish it to be discussed upon its merits. If public opinion is opposed to the unions, the adoption of the union label will be fatal to those organizations. When we are told that there is no demand for a law of this character, except by a minority, is not that a strange argument to emanate from those who always stand up for the rights of the minority ? If we are to judge by minorities, how many people in this country desire to take advantage of the trade marks law ? Comparatively few. Only the large manufacturers, the importers, and the large dealers. We do not find the small shopkeepers and the country dealers rushingfor trade marks. It is not a fair argument to say that it is only a minority of the workers who desire this legislation. I am not so sure that throughout the Commonwealth it is only a minority. But even if it be a minority, that minority will be perfectly helpless unless the great majority of the people support them. What would be the use of an ordinary trader putting a mark upon his goods if he did not expect a large number of people to favour those goods? To my mind, this Is a peaceful way of asking the public whether they will support the unions or not. The decision is entirely in the hands of the people. Then we have been told that the union label is a weapon of boycott. In the multitude of words warning this country against the danger of boycott, there is one little incident to which I should like to direct attention. I do not know who represent labour in this country. I have always understood that every honorable member in this House, more or less, represents labour together with other interests. But I think it will be conceded that if there is one section of this Chamber which distinctively represents labour, it is the labour members. When we are told by the opponents of this proposal that it will be used to injure the non-unionists, is it not a remarkable thing that there has not been a single petition presented to this House by them in opposition to it, and that not one word of expostulation by a non-unionist worker has appeared in the press? Not a single individual worker has stood up and denounced it. It seems to meonly fair to say that labour members represent labour in all its forms far more distinctively than do any other honorable members in this House.


Mr Robinson - Not at all.


Mr ISAACS - I used the word "distinctively." I hope that all of us have the interests of labour at heart, but I say that the Labour Party has a mission in this country. They are returned representing distinctively the rights of labour.


Mr Henry Willis - Of organized labour.


Mr Page - That is the trouble.







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