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Friday, 20 August 1920

Mr GROOM - That refers only to persons acting in combination.

Mr CHARLTON - All I desire is that the provision should make that clear.

Clause 10 proposes to amend section 2S of the principal Act by making provision for varying awards under abnormal circumstances, and similar provision was made in the Industrial Peace Bill, but when, we reach the Committee stage I shall endeavour to have new awards made retrospective to the date of the expiration of previous awards, or to the date of the submission of claims.. It often happens that, owing to the congestion of business, a new award is not made until fully twelve months after a previous award has expired. The new award ought to be made retrospective to the date of the expiry of the previous award. Industrial agreements should also be made retrospective in a similar way. If a new claim is not heard for months after being lodged the award ought also to be made retrospective to the date of the submission of the claim. By making provision for this we shall go a long way towards satisfying the industrial unions.

Mr Maxwell - The request seems to be fair.

Mr CHARLTON - Exactly. The unions will be satisfied that, although delays 'may take place in the hearing of their cases, they will not suffer in consequence of them. When they find that their claims cannot be heard for months, there is a tendency for them to take action off their own bat. I put forward this recommendation with the knowledge given by years of observation in such matters. When, because of the congestion of business in the Court, men have had to wait a considerable time to have their cases heard, and the awards are not made retrospective, it is no wonder they become dissatisfied, and no matter how anxious the leaders of the organization may be to prevent turmoil, they cannot avoid it. In some cases claims have been awaiting a hearing for two years. My request is a fair one, and I hope that when the Bill is in Committee the necessary amendment will be made.

It is my intention to move the following amendment to section 44 of the principal Act : -

Section 44 of the principal Act is amended by inserting in paragraph (&) of sub-section (2), after the words, "breach or nonobservance," the words, " or by any officer of the organization authorized under its rules to sue on behalf of the organization."

In the operation of this section of the Act the unions find that they have not got the satisfaction they .desire, and in this connexion have forwarded to me the following statement of the position: -

Under section 44 (1) of the- 1004-15 Act, as amended by section 3 of the 1918 Act, penalties for breaches of awards may be recovered in Courts of summary jurisdiction.

Section 44 (2) provides that the proceedings may be taken by the Registrar or the organization whose members are affected, or the individuals who are affected.

In practice this policing of the award is done by the unions, the Registrar rarely, if ever, prosecuting, and the individual employees, for obvious reasons, hardly ever prosecuting.

The Judiciary Act applies the procedure in Courts of summary jurisdiction in each State to informations or complaints brought for breaches of a Federal Act in the State Courts of summary jurisdiction. Proceedings under section 44 in Victoria are, therefore, subject to the provisions of the Justices Act.

This has created the following difficulty. If proceedings are taken in the name of the organization as informant, they may be objected to on the ground that the Victorian Act contemplates informations being laid by individuals. Section IS of the Justices Act provides that the information must be signed, and section 19 provides that the justice who takes the information, which is the foundation of the whole proceedings, may require it to be on oath, even though it is not intended to have defendant arrested.

Now the union obviously cannot sign, nor can it take an oath, and it has been expressly held in Victoria that an information in the name of a corporation cannot be made on oath.

And the union, by virtue of section 5S of the Arbitration Act, is a corporation.

On the other hand, if the information is laid by some person authorized by the union, who, being an individual, can sign and can make an oath, it is open to the objection , that in Victoria, at any rate, the agent for the person aggrieved cannot lay an information on his behalf.

It has been held in the Melbourne Court of Petty Sessions that an information laid by a union official claimed to be authorized by the union is bad on the ground, not of any defect in authority, but that he is not one of the persons named in section 44 (2).

It may be that both positions are justified, that the official cannot lay the information because the Statute does not authorize him so to do, and that the union itself cannot, at any rate in Victoria, lay the information because it cannot sign, and cannot make an oath.

In the case of Steane v. Whitchell, in 190G, Victorian Law Reports, the Victorian Full Court doubted whether a municipal corporation could comply with the provisions of the Justices Act and lay an information.

The best way of getting over the difficulty would bc by an amendment of the Act empowering the organization to authorize some person on its behalf to lay informations under section 44. It appears that this can be done in New South Wales under the existing State law: see, for instance, the case of Peck v. Adelaide Shipping Co., 18 Commonwealth Law lieports, page 167.

The amendment suggested is quite a simple one, and should cover all that is required. I do not think that much exception can be taken to the bulk of the amendments contained in the Bill. I believe it is the intention of the Minister to make the Act more workable, and to expedite business.

Mr McWILLIAMS (FRANKLIN, TASMANIA) - Does the honorable member imagine that anything would make the Conciliation and Arbitration Act workable?

Mr CHARLTON - There are industries which will prefer arbitration according to the methods of the Bill to arbitration according to the methods for which we provided last week; but I believe that the greater number of our industries will elect to come under the legislation of last week, and that as time goes on very little work will be left for the Arbitration Court to do.

Mr Maxwell - And what it does it will be able to do more efficiently in consequence.

Mr CHARLTON - Exactly, and those who go to it will have their cases heard with more expedition, which is to be desired. If all the work is done under the new law, the Arbitration Court must be abolished, because there will be no need for it.- But we must await developments. In any opinion, the Arbitration Court mud be kept in existence for the present. I doubt the need for the Public Service Arbitration Bill, because I think it would be better to continue the present arrangement than to create additional machinery for dealing with Public Service cases. The more Courts you have, the greater tha expense. But no expense can be too great that will preserve industrial peace.

Mr Maxwell - Hear, hear ! Every one will say that.-

Mr CHARLTON - I think it best to leave things as they are until we can see what has taken place. I said last week that there were only two blemishes on the measure that 'we passed then. I suggested certain amendments, with' which honorable members dealt in a fair spirit, and accepted, with the exception of two, and I think it will be found that the measure, providing as it does for the hearing of disputes as they arise, will be considered satisfactory, and that Parliament will have earned the gratitude of the community for it. The measure now before us ought not to occupy much time at the second-reading stage, because its provisions are more the subject for Committee consideration. I trust that in Committee it will be dealt with . as fairly as was the Bill last week. If we are all actuated by the desire to improve it, we shall be certain to do good work upon it.-

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