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Friday, 27 August 1920


Mr CHARLTON (Hunter) .- 1. hope that the honorable member for Fawkner (Mr. Maxwell) will stand by his amendment which is absolutely neces-sary for the improvement of this measure. When the amendment submitted by the honorable member for West Sydney (Mr. Ryan) was under discussion, the Minister was not inclined to agree to leave out the word " abnormal," an amendment which lie is now prepared to accept. He then claimed that both words, " abnormal " and " fundamental," were necessary and should stand.


Mr Ryan - So did the honorable member for Kooyong.


Mr CHARLTON - That is so. Now both the Minister and the honorable member for Kooyong (Sir Robert Best) are agreed that the word " abnormal " might be left out.


Sir Robert Best - When I spoke on the previous amendment I said nothing about the word "abnormal."


Mr CHARLTON - They are both now prepared to compromise with the honorable member for Fawkner and omit the word " abnormal." But the same arguments apply with equal force to the omission of the word " fundamental." The honorable member for Kooyong argued that if we do not use the word " fundamental " we shall be inviting those working under an award to appeal to the Court to have it varied. It will make no difference to the industrial unions whether the word " fundamental " is used or not. If they think it necessary that the whole or some part of an award should be varied they will make an application to the Court to have it varied. They will not do so without substantial reason, because it will means money, and they can ill afford to waste money. When they have made their application, the Court will have to decide whether the altered circumstances ' affect the " fundamental ' justice " of any terms of the award. That is the kind of thing which justifies industrialists in taking exception to the operation of the Arbitration and Conciliation Act. We do not make the provisions- of our legislation simple enough. They should be expressed so plainly that all who read them can understand them. We have an admission from the Minister himself that there is doubt as to how- the word " fundamental " should be defined. He holds that it should be retained in this clause to prevent unions appealing unnecessarily to the Court for the variation of awards. We cannot prevent them appealing to the Court. They will do so, and when they have done so the matter should be left to the discretion of the Judge. We may assume that he will be a sane man who knows his business, and will be able to decide according to the evidence put before him, whether an award should be varied or not. If the word " fundamental " is retained a doubt may arise as to whether the altered circumstances have affected the justice of the terms of an award, fundamentally or not, and the Judge may say that he questions very much whether the Legislature intended that the award should be varied, because of the difficulty of defining what the word " fundamental " means. The Minister having agreed to the omission of the word " abnormal," I am at a loss to understand his objection to also leave out the word " fundamental." Whether it is left out or not will make no difference in the matter of appeals to the Court for the variation of awards, whilst if the word is retained the Judge will he placed in a difficulty to decide what it means. He may say that some alteration has taken place in th© condition of things since he made an award, two years previously, which might justify him in varying it to some extent, but he may feel that he dare not do so because he is in doubt as to whether the altered circumstances affect the " fundamental justice " of the award.


Mr Maxwell - He will say that the Legislature drew some distinction between justice and fundamental justice, and he will have to ask himself what it is.


Mr CHARLTON - Exactly . He may say, " How can I decide whether the altered circumstances affect the fundamental justice of the terms of my award," and if he is in doubt on the matter he may allow the award to remain, when it ought to be varied,' because there may be further appeals as to whether, he has exceeded his powers in regard to the " fundamental ." justice of the terms of the award. The unions will apply for variation only when absolutely necessary, and the Minister would be well advised to allow the elimination of the word.







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