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Thursday, 30 November 1905


Mr KENNEDY (Moira) - I regret that the discussion is not taking place under more favorable conditions. I also regret that honorable members - even the honorable member for "Kooyong - have thought fit to impute motives to other representatives in this House from whom they may happen to differ. When we have that c condition of affairs within Parliament, it is not surprising that misconceptions should prevail amongst the general public, 'who have not the same opportunity as ourselves to obtain accurate information, and thus become fully seized of the import of the particular provisions with which we are dealing. As to the charges of "bludgeoning," "sand-bagging," and so forth, i't is pleasing to know that up to the present time there has been applied no "gag" or restriction, but that, on the contrary, those who are opposed to the measure have had ample opportunity 4o express their opinions. Those who sup port the Bill will have every facility to make their defence when they go to their masters - the electors. I therefore see no justification whatever for the imputation of improper motives.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The honorable member says that he regrets the circumstances under which we are discussing the Bill?


Mr KENNEDY - I deeply regret the circumstances and conditions under which the Bill is being discussed. My little experience in business and in the affairs of the world, teaches me that men can generally deal with matters of material concern to themselves, without incurring any undue physical or mental strain. Honorable members have now been out of their beds for the last twenty-eight or thirty hours, engaged, under abnormal circumstances, in discussing a question of grave importance. I am inclined to believe that there is a great deal of misconception and misrepresentation in regard to the proposal now before the Committee. Within this Chamber we hear these clauses described as union label clauses, whereas in the Bill itself there is no restriction whatever as to the persons who may desire to use this label. I may be permitted to give an illustration of the misconception which prevails outside this Chamber. In a remote part of the country a public meeting was convened in order to obtain an expression of opinion on the merits of the proposal. When the meeting assembled a gentleman present, who had not seen the measure, asked the chairman the exact nature of the provisions. After inquiry amongst those present, it was found that no one was in a position to give any definite information. A little common sense was brought to bear, and a member of this House was written to, and asked to supply a copy of the Bill, and the meeting was adjourned until that should be received. That illustration does not convey an extreme idea of the condition of affairs prevailing throughout some of the rural districts of Victoria. Some few months ago a deputation interviewed me in regard to my attitude towards what are designated as the union label provisions of the Bill. As I stated when speaking on the second reading, I was prepared to approach the question with an open mind ; and I told the deputation that I would be delighted to hear what they had to say. Thev submitted their view of the case, and then I asked them ito state clearly and distinctly to which statements they were opposed - whether they were opposed to the proposal which was sent on from the Senate to this House, or to the proposal which was first formulated by the Attorney-General and submitted to us, or to the last proposal of the Attorney-General. Strange to say, not one of the deputation was in a position to distinguish between these different proposals. When we hear this label continually referred to in this Chamber as a union trade mark proposal, designed to carry with it preference to unionists, it is not to be wondered at that misconception should prevail in the minds of the public, who have not the same opportunity to inform themselves as have the members of this Parliament.


Mr Crouch - The Employers' Federation is still sending out the original circular, containing misrepresentation.


Mr KENNEDY - I am not going to speak at length, because I do not think there is any necessity to do so. I desire, however, to clearly state my position, and to show what my attitude has been on the general question. I have been amongst the workers all my life, and I am rather proud of the fact that I ama worker today. I may not at all times have seen eye to eye with those who worked beside me as manual labourers many years ago. I have been an advocate of unionism, but there has been no stronger critic than myself of many of the actions taken by unionism. In my opinion, unionists have been as wrong and as extreme on many occasions as have the capitalists or employers, whom unionists are prone to denounce at all times.


Mr Watson - Mistakes are made by all people.


Mr KENNEDY - Human nature is the same in all classes and conditions of society. There may be a little more veneer and polish in one section of society than another, but that veneer has only to be rubbed to show that nature is the same in ail men. Environment may alter views, but, at bottom, we are all alike. However, let me return to the principles which have always governed my actions in matters of this sort. Whenever an enactment, legislative or otherwise, will tend tothe peaceful adjustment of disputes between employer and employed, I shall be prepared to give it my support, no matter how far that enactment may go. But if any proposed enactment will, to my mind, cause friction in matters industrial, as between employer and employee,then my support must be withheld. I have had no experience of industrial troubles beyond Australia, but I have been an eye-witness of much that has happened in Australia in this connexion. The advice tendered, more particularly by employers and capitalists, has always been to adopt peaceful means of settling these industrial disputes - to set aside the old barbarous methods of brute force, such as the boycott, and to get on speaking terms one side with the other. Twenty years ago it was within the reach of the most vivid imagination that industrial disputes would be submitted to a judicial tribunal? That, however, has been brought about ; and still we have capitalists and the employers to-day expressing a dread of something whichthe industrial population propose to do. I do not in the least share that dread; but I do say that a legislative body cannot be too careful about placing in the Hands of any section of thecommunity a power that may prove a source of friction in the future. This is where I join issue with those who are advocating the label proposal, even in its present form.


Mr Watson - The honorable member a month or two ago describedthis as a very equitable proposal. He believed in it then.


Mr KENNEDY - If the honorable member will show me anything that I have said expressing approval of the principle of the provisionI shall be preparedto go back onmy present words.


Mr Watson - I shall show the honorable member.

Mr. KENNEDY.I am not so hidebound as to be afraid to change my mind if I am shown to be wrong. I remember clearly and distinctly what I did say when speaking on the second reading. I then directed my attention particularly to the remarks of the honorable member for Corangamite, when I expressed the opinion that I did not think it at all necessary to go to the United States for illustrations of the effects of this particular class of legislation. I added that I intended to approach the question with an open mind ; and no further commitment Bid I make then, nor have I made up to the present' time. To return to the merits of the proposal, what do we find? It is of no use talking about this as a trade union mark : that is done with. The original proposal which emanated from the Senate, was for a trade union mark pure and simple, and it was provided that none but trade unionists, or trade union organizations, should obtain registration. Under the present proposal, however, there is no restriction in the slightest degree. Even the honorable member for Kooyong, who is regarded as an extreme opponent of the measure, stated this morning thai: the present proposal of the Attorney-General, with the modifications which have been formulated, would be acceptable to him. Consequently there is not that great divergence of opinion to-day amongst membersof thisHouse that there appears to be amongst the public outside. The first question that occurs to my mind is whether there is any necessity at the present time in Australia for the workers to have the right to register trade marks? Then, if there is a necessity, is the Federal Parliament the proper authority to confer that right?


Mr Tudor - The workers have the rightnow ; there is nothing to prevent them from registering a mark to-day.


Mr KENNEDY - But are they protected under that mark?


Mr Tudor - They cannot be protected against infringement.


Mr KENNEDY - That isthe whole position - that is the object of the Bill.


Mr Tudor - Will the honorable member agree to wipe out all the pirates?


Mr KENNEDY - Assuming that the right is conferred by Parliament, the next question is whether there is any danger to any, section of the workers by reason of the powers given by the Bill.


Mr Fisher - All the lawyers say that the power exists to-day, but that no protection is given.


Mr KENNEDY - Then what is the use of the power?


Mr Fisher - That is the point.

Mr.KENNEDY.- The right to use a label gives practically no advantage; and that is the whole difficulty. The workers of the United States have been chiefly cited in illustration; and some honorable members have gone so far as to say there are no industrial enactments there. In that, however, I think those honorable members are wrong, because there are a considerable number of industrial enactments in the United States to the advantage of the workers.


Mr Watson - As to the opinions previously expressed by the honorable member,

I may say that on the 8th August last, when dealing with this question, he is reported in Hansard as saying, in reply to a question by Mr. Reid as to whetherhe advocated the application of the principle to both parties -

Yes; and that is why, in a spirit of equality and fairness, I wish trade unions to have the right to register a union label just as an individual or corporation is given the right under this Bill.


Mr KENNEDY - Admittedly, I said that. I have also said that I am not so hide-bound as to be afraid to change my mind if shown to be wrong. The honorable member has not quoted the whole of what I said.


Mr Watson - I could quote more to the same effect.


Mr KENNEDY - I shall be delighted to hear the whole. However, I was referring to the United States ; and I wish to say that, in my opinion, the industrial conditions there, and the industrial conditions in Australia, are not at all analogous.


Mr McCay - Amongst the last words of the honorable member, when speaking on the second reading, were -

Consequently I approach the question with an open mind.


Mr Watson - Having already committed himself to the principle. I do not object to a man changing his mind if he likes.


Mr KENNEDY - It is a comfort at times to have a mind to change. I was saying that the conditions in America and the conditions in Australia are not at all analogous. In Australia, the tendency - although, unfortunately, it does not apply throughout - is to legislate with a view to hold the balance fairly between employer and employed. Apart from New Zealand; I venture to say that, in this respect, Australia is in the forefront of all industrial, communities. We have laid aside the old barbarous methods ; and the tendency is to work on improved lines. In Victoria there are Wages Boards, and in some of the other States, Courts of Conciliation and Arbitration. Will the proposal before us supersede or come into conflict with this States legislation ?


Mr Watson - States legislation will not be affected, so far as I can see.


Mr KENNEDY - I think that the States legislation will be most seriouslyaffected. Will the Bill before us give to independent workers, or associations of workers outside trade unions, the right to register a trade mark? Will there be a separate and distinctive trade mark for trade unionists, as distinguished from others engaged in precisely the same industries? I should also like to know whether apart from factories laws and the Arbitration Courts, those who work in factories where there is no competent authority to prescribe the conditions of labour, will be prevented from obtaining a registered trade mark? So far as I can see, there is nothing in the Bill to that effect. There is not a line or word in the clause under discussion, to prevent any employe, under a Factories Act, or otherwise, from registering a trade mark. Is that so., or is it not?


Mr Watson - Most lawyers are of opinion that unless a provision of the kind is made such employes cannot register.


Mr KENNEDY - There is no special provision, so far as I can see. to prevent those who are not working under factories laws from registering a trade mark.


Mr Watson - Hear, hear. Certainly.


Mr KENNEDY - What means will the public have to distinguish between goods produced . or manufactured under fair conditions of labour, and those produced under unfair conditions, unless- and this is what caused the doubt in my mind - registration is to be restricted entirely to those whose conditions of labour are prescribed by some authority ?


Mr Watson - There are numbers of people working under fair conditions, who do not come within the factories laws, or the jurisdiction of Arbitration Courts.


Mr KENNEDY - I do not think that since I have been in public life I have found it necessary to give so much attention to any question as I have given to this before deciding how to vote. I recognise this to be a matter of most serious importance, and if the proposal is to attain all that its advocates claim, surely it is not the intention to give the right of registration to those who work under unfair conditions.


Mr Fisher - It would not be true, if goods, manufactured by such people, were labelled as having been produced under fair conditions.


Mr McCay - Such people could call themselves an association, and register a label, and the public would have to go behind the label in order to ascertain whether the conditions of manufacture were, fair or otherwise.


Mr Watson - Why should they not?


Mr KENNEDY - That is the first difficulty that presents itself to my mind ; and throughout the discussion I have not heard the question raised or answered.


Mr Fisher - Oh, yes.


Mr KENNEDY - I want to be shown what advantage those who work under fair conditions will obtain, if workers who may be compelled to work under unfair conditions have the right of registration, and the right to exhibit the label ?


Mr Fisher - Not the same label.


Mr Poynton - If the label indicated that Wages Board conditions had been complied with, would that not meet the case?


Mr KENNEDY - There is no such provision as that in the Bill. I say without hesitation that if any provision could be devised by which a mark might be applied to goods. made under fair conditions - under factories laws, or arbitration laws - and so distinguish goods made under sweated conditions, I should be prepared to support it. The proposal before us does not, in my humble judgment, attain that end.


Mr Watson - Will not each association have the opportunity to design its own label ?


Mr Fisher - Hear. hear.


Mr KENNEDY - Then, assuming that a trade mark is granted, of what value will it be to the purchaser, as a guide to the intrinsic value of the goods?


Mr Wilson - Absolutely no value.


Mr KENNEDY - None whatever. The only value that a trade mark of the kind could have to the purchaser, would be to show that the goods had been manufactured under fair conditions. So far as I can understand, however, the proposal gives neither the worker nor the purchaser any such protection ; and that in my mind is a sufficient reason for opposing the clause. As I have already said, if some provision could be made by which the purchaser would be enabled to distinguish between the two classes of goods, I should be prepared to consider it on its merits. I do not think it necessary to argue the proposal from the point of view of preference to unionists. On this score, I am not alarmed in the slightest degree, seeing that the proposal does not give any preference to unionists. I desire, however, to put the position as it presents itself to my mind. It is admitted. I think, by those who make special claim to represent labour, that in large centres of population there are greater advantages arising from the membership of trades union and similar organizations, than there are in sparsely-populated centres throughout the rural districts. Iron-workers engaged in the manufacture of agricultural implements furnish a typical illustration. In the largest centres there is greater stability in reference to employment than, for instance, in the small towns of the Murray districts. In the latter, the employes change to a greater extent than in the city, and, for the reason I have just given, they are not unionists to the same extent as in the cities. But, so far as my inquiries go, the rate of pay is generally better in the country, while the conditions are equally good, if not better, than in the city


Mr Wilson - Infinitely superior.


Mr KENNEDY - I do not go as far as to say that the conditions are infinitely superior in the country ; but I think that in regard to ventilation, and so forth, the country workshops are much the better provided.


Mr Watson - The wages in the country are often not so high as in the towns.


Mr KENNEDY - I am speaking now of instances in regard to which I have made specific inquiries ; and I have in mv mind workshops in Shepparton, Numurkah, and similar towns. Assuming that effect were given to the proposal before us, the city workmen would naturally register their mark, and apply it to their goods; but in the country districts, for the reason I have already stated, the men would not, perhaps, take advantage of the Bill. Consequently, if, prompted by any motive whatever, a desire arose on the part of the public for goods marked with a label which was regarded as a guarantee of fair conditions of labour, the country workers would be placed at a disadvantage. The onus of proof would -lie upon them to show that their goods were also manufactured under fair conditions.


Mr Spence - That could be arranged between the workmen and the employer under this clause.


Mr KENNEDY - Is the position I have described, a fair one in which to place a section of the workmen? The fear uppermost' in my mind is that unwittingly a grave in justice may be done by one section of workers as compared with another in the same trade. The reasons I have advanced are, in my opinion, fair and legitimate for opposing this proposal. But apart from these considerations - apart from the active use of such a label as a weapon of coercion - there is another phase of the question which deserves serious consideration. When I spoke on the second reading, I said that I did not think it necessary for the honorable member for Corangamite, or the honorable and learned member for Wannon to go to America for illustrations as to how the boycott may be used. Illustrations may be found in Australia, where, in circles in which the social veneer is most conspicuous, and in which the highest ethics might be expected, we find the boycott made an effective weapon of coercion. I refer to the learned professions - the very class who so strongly denounce the proposal now under discussion. There is 3 law on the statute-book of Victoria which is set at defiance by the union which exists in the learned profession of the law.


Mr McCay - Hear, hear. I am a boycotted person because I obey the law.


Mr KENNEDY - We are not dealing with personalities, but with broad principles. When we see such action, on the part of those who are gentlemen by law, what is to be expected from others who are always regarded as belonging to the masses ?


Mr Fisher - lt is from this learned profession that our Judges are" selected.


Mr KENNEDY - Is it not reasonable to assume that the masses will ape those who are designated as their betters, and use similar weapons for similar purposes ? I refer to the action of the legal profession, because it has been prominently brought under notice during the last few days. It is not generally known to honorable members from outside Victoria that in. this State there is an Act which amalgamates the two branches of the legal profession, and confers on solicitors the right to a]> pear in Court as counsel. That law has been rendered inoperative by the action of a section of the legal fraternity. The rules of the barristers' union have been used as a means to boycott any member of that branch of the profession who acts as a solicitor, or appears as a solicitor. At the annual meeting of the Law Institute of Victoria, held recently, the President said -

The institution known as counsel on the roll perpetuated the two different branches of the profession in opposition to the policy of the law -

We, therefore, have the learned gentlemen of the law, not in active opposition to the law, but, by passive resistance, rendering a law inoperative in Victoria.


Mr McCay - It is not passive resistance, but an active rule.


Mr KENNEDY - It is by a rule within their own union. The quotation from the speech of the President of the Law Institute continues - to keep in existence an exclusive ling or union, whose members shall practise solely as barristers, and shall not appear in conjunction with those who practise as solicitors.

We have here proof positive that, in a circle where we should naturally look for respect for the law, we have one particular law, if not violated, at any rate rendered inoperative.


Mr Crouch - The law is rendered inoperative because of its inexpediency.


Mr KENNEDY - And the question of expediency arises in connexion with the proposal before us. Is that proposal expedient or otherwise? Similar conditions to those I have described prevail in the medical profession. A person might die of the toothache if he happened to call upon two members of the profession who were not members of the same union. Yet, strange to say, the two classes whom I have just mentioned are those who continuously denounce the labour and industrial sections of the community if they take any steps towards using their organizations as a means of coercion. The two instances mentioned are sufficient to justify me in exercising great caution about arming any section of the community with a weapon which may be used detrimentally towards another section.


Mr Conroy - The honorable member's argument is that, if a voluntary power of the kind is abused, a legal power is much more likely to be abused.


Mr KENNEDY - Another consideration is that the internal industrial laws are, up to the present, under the control of the States Legislatures, and the tendency in all directions is to promote the welfare of the whole community by the abolition of the old method of violence. In my opinion, it is more incumbent on the States Legislatures to deal with a matter of this sort than on the Federal Parliament. What is the burden of the song of the advocates of this proposal, including even the AttorneyGeneral ? We are told on all hands that in every instance in America in which legislation of this kind exists it has' been enacted and is administered by the States.


Mr Spence - That is because Congress has not the power to pass such legislation.


Mr Watson - Such legislation is a State right in the United States.


Mr KENNEDY - I was under the impression that trade marks were under Federal control in the United States.


Mr Watson - In the United States there is Federal control, so far as regards outside trade, and trade between the States - much like the control conferred by our own Commerce Bill.


Mr KENNEDY - I am not prepared to argue that point. In Australia, internal industrial legislation is, up to the present, a matter for the States; and the whole movement is, as I say, towards the promotion of the welfare of the whole community. Is it desirable or expedient for the Federal Parliament to introduce legislation which may cause friction,, and, to some extent, supersede or contravene the legislation of the States? Broadly speaking, the grounds I have stated are those on which I intend to vote against the proposal before us. It is not for honorable members to say that I have committed myself in this, that, or the other direction. When I spoke . on the second reading, I stated distinctly that I would approach the question with an open mind ; and I have already told honorable members that never since I entered public life have I given such attention to a question as I have given to this. As a worker myself, I differ from those who regard this as class legislation. No legislation is, to my mind, class legislation, more particularly legislation dealing with industrial matters. The relations of life are so interwoven and inter-dependent that not a single cog can be stopped withoutaffecting the whole industrial machine. This has been proved times out of number, particularly in the maritime strike of 1890,, the shearers' strike, and the Victorian railways strike. If a section of industrial workers were specially dealt with in an Act, that might be called' class legislation; bue in the ultimate it would affect every section of the community. It has been said in this Chamber that in times of industrial trouble the unionists are the only persons who suffer. In my opinion, that statement is made unthinkingly. Who suffered when the shearers were called out? As I have stated previously here, in many cases the employers were supporting the unionists; and then it was the employers who were the "black- legs." If a section of workers, for reasons of their own, saw fit to offer, not active, but passive resistance, to another section, and cease work, within a week the result of that action would permeate the whole industrial community.


Mr Tudor - It would depend entirely on what section of workers it was who took action.


Mr KENNEDY - The number of workers would have to be very limited, and their product not much in demand, if the result of their ceasing work was not felt throughout the industrial community within a very short time. For instance, if the agricultural implement workers were to cease work at a particular time of the year, what would be the effect? Our time might be better spent than in providing for a trade mark on goods in the manufacture of which our working men cannot find employment. A great many workers are not fully employed in Australia to-day, and it would be more to the purpose if we could do something to help them in this connexion. When they were fully employed, we might be fairly asked to legislate to assist them in marking the goods which they manufacture. I have no desire to take up further time, except to say. that, for the reasons I have stated, I shall vote against the proposal.







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