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Wednesday, 11 August 1920


Mr HUGHES (Bendigo) (Prime Minis.ister and Attorney-General) . - The amendment moved by the honorable member for Hunter (Mr. Charlton) must be carefully considered. I can quite understand the object which he has in view; but he will appreciate my difficulty when I point out that the Parliament has no power to deal with industrial matters except in so far as is provided in paragraph xxxv of section 51 of the Constitution. That is to say, we can legislate " for the prevention and settlement of industrial disputes extending beyond the limits of any one State" by methods of "conciliation and arbitration." It is difficult to say precisely what those words mean. But a series of judgments given by the Courts have certainly had the effect of limiting most considerably the meaning of that paragraph.

The first question a Court would ask in regard to any examination of a witness with a view to eliciting facts as to prices and profits would be, " Is this relevant to the dispute ? " Now, a dispute must be, of course, one extending beyond. the bounds of any one State, but it must also be a dispute which is before the Tribunal or Court. The honorable member for Hunter (Mr. Charlton) has set out a position which goes far beyond that. He says, for example, that if a colliery proprietor sells coal f.o.b. at Newcastle, for 17s. 9d., then the hewing rate is so much.


Mr Charlton - It is fixed at present, by agreement under the War Precautions Act.


Mr HUGHES - Quite so; but, normally, the hewing rate bears relation to the selling price, and, therefore, if the declared price, 17s. 9


Mr Charlton - Do you know that it is alleged that to-day people are buying coal from the proprietors at the price fixed, and that the coal immediately changes hands, not c.i.f., but at port of Newcastle, for considerably more - that certain persons are buying coal at Newcastle before shipment, and then shipping it at a considerable increase over the fixed price?


Mr HUGHES - That is the point I was coming to. Whether that is being done or not is a question of- fact, and I do not know whether it is being done; but the point that the honorable member has to make is this: Is the employer, the person with whom there is a dispute, reaping any of the benefit?


Mr Charlton - How are we to make that point unless we have some power of inquiry ?


Mr HUGHES - Under the Bill, as it now stands, the Tribunal, which is not cramped by any provisions in this Bill, but has all the power conferred on this Legislature by the Constitution, is authorized to ask any question it likes of an employer as to the selling price, and to whom he sold ; and if he says he sold to Jones, there is no reason why Jones should not be asked whether the employer did sell to him. I do not know whether Jones could be compelled to answer, and I would not like to say that he could; but once it is made out that the employer is getting more than 17s. 9d., all evidence on the point is entirely relevant, and within the scope of the tribunal. I give you my opinion for what it is worth, and in my opinion that evidence is entirely relevant. If, however, the employer sells for 17s. 9d. to a buyer, and that buyer sells, bona fide, for 22s. 6d., there being no collusion between the parties and the employer getting no secret commission, the tribunal has nothing to do with the transaction.

The employer has sold the coal at 17s. 9d., and does not get any of the 22s. 6d. - his connexion with the coal ceases with his sale-


Mr Charlton - The shipping companies are now, to a very large extent, interested in the mines, and in some cases, I 'believe, have a controlling interest. The price may be declared at Newcastle, but the cost in Melbourne is made considerably higher; and in that way there are profits which do not appear in the dispute, which is regarded as confined to the colliery proprietor and the colliery employee.


Mr HUGHES - If a man is at once a colliery proprietor, a ship-owner, a wholesale and retail dealer in coal, and also a manufacturer using the coal, the honorable mem'ber contends that the Tribunal ought to be able to follow the coal through all these ramifications. The relations between the employees and the employer with whom they have a dispute is in his capacity as a coal-owner. All questions as to profits made in his capacity as coal-owner are relevant, and must be answered, unless he says, " I can pay whatever wages the Court or Tribunal awards, without increasing the price of the coal." If a coal-owner says that, he cannot be asked any questions ; but if he says he cannot do it, then, at any rate, while the present control over . the price of coal by the Commonwealth exists, he must answer those questions.

I come now to the proposal of the honorable member for Hunter (Mr. Charlton). In my opinion the honorable member's amendment does not carry us any further, because all' those questions may be asked under the Bill as it now stands.


Mr Charlton - If that be so, the honorable member should have no objection to making the fact quite clear.


Mr HUGHES - I have no objection at all; I was only going to explain that, as things are, all those questions, and a great many more, can be asked, and I' shall tell honorable members why. All these questions may be asked in the Arbitration Court to-day. They usually are not asked, and for good and sufficient reasons. Let me show why. There is a dispute before the Court, the men asking for an increase in wages of 6d., ls., or 18d. an hour or a day. In the course of the hearing the

Judge asks the question, " Can the industry afford the increase?" and the respondents almost invariably reply in the affirmative. But what is meant is not, " Can the industry afford, the increase provided that the price of the article, goods, or service rendered remains as at present?" - what is meant is, " Can the industry afford it, with an increased price, if and when the Court has awarded the higher wage?" Under the Constitution we have no power to go beyond that; but, in regard to coal, so long as we have the power to regulate the price we have the power to say that the coal owner shall not increase the price without our consent; so that if it is said that the industry can pay the wage asked, or any wage the Tribunal awards, the industry will have to pay higher wages and still get only the same profit. But if the employers say that the industry cannot afford to pay the increase, there is no reason why the Tribunal should not ask any and every question relevant ' to the profits of the industry. The evidence will be taken in camera, and, of course, the Tribunal, in whose possession it must be, will not disclose it. On that evidence the Court will make its award.


Mr Considine - In the possession of the Tribunal or of the Chairman only?


Mr HUGHES - Of the Tribunal, which is in exactly the same position as the Arbitration Court, which has power to appoint assessors. If the Judge so decides, those assessors may take part in the examination as to profits, and they are governed by exactly the same restrictions as the Judge, and may not disclose the evidence subsequently.

I hope I have made the position quite clear; at any rate, I have tried to do so. I do not pretend to say that the position is not involved, and it is complicated by our limited powers. If we had power to make laws in relation to industrial matters, the position would be different, but we have not that power, and, therefore, we have to make laws only for the settlement of disputes by way of arbitration. The Conciliation and Arbitration Act mav exhaust our power under sub-section xxxv of section 51 of the Constitution; but the Tribunal under the Bill is not limited in that way, or in some of the ways, in which the Court is. ' The Tribunal will have all the power, the present Court has, and some more, but it cannot go any further - it cannot have any more power than this Legislature has, though up to that point it has all the power. Under section 38 the Arbitration Court has power -

To summon before it the parties to the dispute, and witnesses, and to compel the production before it of books, documents, and things for the purpose of reference to such entries or matters only as relate to the dispute.


Mr Charlton -. - What powers are conferred by this Bill in addition to those conferred by the Arbitration Act?


Mr HUGHES - The Court has complained that its power is limited by certain sections. For instance, it cannot vary an award. We propose to introduce an amendment to make good that defect, and to amend the Act in other respects also. Under this Bill Tribunals will be able to vary an award. That is one respect in which they will have more power than has the Arbitration Court. But I say also that, so far as I know, they will have all the powers that this Parliament can give them. In this Bill we have practically exhausted our power under paragraph xxxv of section 51 of the Constitution. The amendment will not enlarge the ambit of the Bill because I believe that all the questions which the amendment will allow to be asked can be asked under the clause as drafted, subject to the distinct understanding that (the respondents say that the industry cannot pay the wage asked for without increasing the price of the commodity.


Mr Charlton - Then why not accept the amendment?


Mr HUGHES - I have no objection to it, but I say that it does not carry us any further.

Amendment agreed to.







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