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Friday, 27 August 1920


Mr CHARLTON (Hunter) -I hope that the Minister (Mr. Groom) will accept the amendment which has been moved by the honorable member for West Sydney (Mr. Ryan). Such an amendment is necessary, because the clause as drafted leaves the whole position in doubt. If a union applies for a variation of its award the Court will have to determine whether the fundamental justice of that award has been affected by abnormal circumstances, and to that extent it will be shackled. It will be slow to make alterations in an award when it knows that it cannot do so unless the circumstances have not merely changed, but are " abnormal." It has been said that the amendment would only provide additional work for the Court. In my opinion, it would not lead to the filing of an additional plaint. A union decides at its various meetings whether the terms of an award require to be varied, and, having regard to the expense involved, it would not be likely to move for a variation unless there was substantial reason for doing so. Where a union has a grievance it will submit it to the Court quite irrespective of whether or not this amendment is incorporated in the Bill. We may safely leave this power in the hands of the President or Deputy President of the Arbitration Court. Do honorable members think that a High Court Justice would be likely to make an unjustifiable award? If this amendment be carried, the Court will have power to hear the evidence and to come to a conclusion on the facts as to whether or not the award complained of should be varied.


Mr Richard Foster - I fear that the J udge has made many unfortunate awards through want of technical knowledge.


Mr CHARLTON - That is quite another matter. This provision relates only to the varying of an award.


Mr Richard Foster - Technical knowledge is required in determining whether an award should be varied.


Mr CHARLTON - That point will bc met by the appointment of assessors in the terms of the further amendment of which notice has been given. The Minister will be well advised to give this amendment consideration. We ought not to pass any clause in which there is an ambiguity. The clause as it stands is certainly unsatisfactory. How is the Court to determine what are " abnormal circumstances"? My experience convinces me that arbitration should be as free as possible from technicalities. The use of the words " abnormal circumstances " may give rise to a doubt on the part of the Court. The Court might consider that on the evidence an award should be varied, but it might be in doubt as to whether the .circumstances were abnormal. Under this amendment it will be for the presiding Judge to determine whether the request for the variation of an award is reasonable. The amendment will certainly improve the clause.







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