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Wednesday, 1 September 1920


Mr GROOM - I will deal with that point later. The objects of the amendments I have just indicated are these: - First, to constitute the Court of a Judge and Deputies; secondly, to enable the Judges to sit in individual cases; thirdly, to enable the Judge to invite a colleague to assist him upon matters of great importance where he feels that that is necessary; and, lastly, where the subject is the very important one of increasing or reducing the standard hours of labour in an industry, to insure that . a decision shall not be arrived at except by a majority of the Court of three Judges.

The Federal Parliament cannot legislate directly upon industrial matters, as the States can. It cannot regulate industries by passing general laws fixing a minimum wage for the hours of labour. The States have their powers in that regard, but the Commonwealth has not. Our powers are distinctly limited to the making of laws ."for the peace, order, and good government of the Commonwealth with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." We have no power to make laws for the prevention and settlement of industrial disputes. The only power that we possess is to make laws with respect to conciliation and arbitration for the settlement of industrial disputes extending beyond the limits of any one State. Our channel of legislation is- through conciliation and arbitration for the prevention and settlement of industrial disputes of that character only, and we also have any powers incidental to that power. The leading case, known as the common rule case, which defines this matter, is contained in volume 11 of the Commonwealth Law Reports. The first Conciliation and Arbitration Act of the Parliament gave power to make a common rule. This practically meant that the Judge in making an award had the power to declare that a law should prevail in a certain industry. That question came before the Full Court of the High Court, and Mr. Justice Higgins, at page 342, sets out the position thus - >

Now, conciliation and arbitration are a means to an end - industrial peace; .but they arc tlie only means to that end provided by the Constitution; and any laws, to be valid under the power, must be directed to conciliation and arbitration. It is not enough for them to be directed to the prevention or settlement of industrial disputes. They must be directed to the particular method of prevention and settlement mentioned. Parliament cannot, under the Constitution as it stands, apply the method of Wages Boards as an aid to the prevention of disputes, nor can it fix wages and conditions by prescribing them in a schedule to an Act. Then looking at the subsection of incidental powers - sub-section 39 - we find that the Parliament is. enabled to make laws with respect to matters incidental to the execution of any .power vested by this Constitution in the Parliament; mrt this language forces us back to ascertain what are the specific powers so "vested, and as regards subsection 35 tlie power is a power as to conciliation :ind arbitration, not a power to dictate labour conditions apart from conciliation and arbitration.

That, I think, is an accurate statement of the law as it stands to-day with respect to our power, to deal with labour matters generally. We have at present a Court which consists of a President, and the Governor-General has power to appoint one Deputy President. It is left to one Judge to decide upon important matters. At the moment we are trying to get rid of the congestion of business in the Court by the appointment of Deputy Presidents, so that we shall have possibly three or four Judges dealing contemporaneously with different matters in connexion with various industries. Thus, in a matter of very grave importance, such as the fixing of hours in an industry, different standards might be set up in different Courts, which, .of course, is undesirable. In other matters it may also be desirable to have uniformity. That would particularly apply to the question of the basic wage, which is being inquired into at present by a Royal Commission. Wetherefore desire to have important matters, such as the standardization of the hours of labour, settled in the way I have indicated in these amendments. Of course individual Judges may hear and determine cases, but when it comes to a question of the fixing of standard hours, the Judge must call in the aid of the other Judges.


Mr Maxwell - Is that in fixing a standard to apply to all industries?


Mr GROOM - No; it will be in the particular dispute being investigated, and the method we propose will insure uniformity of decisions.


Mr Richard Foster - It will practically have the effect of a common rule.


Mr GROOM - Not exactly of a common rule, but we hope it will lead to a general uniformity in the decisions. There is the further aspect that there exists a fixed standard of forty-eight hours per week, which has been generally approved. It was recently adopted at the Labour Convention which sat at Washington in pursuance of the Peace Treaty. Even Japan, which is industrially far behind other countries, agreed by its representative there to extraordinary limitations in the hours of labour, so as to approximate her labour conditions to the conditions in other lands, and I believe a similar understanding was arrived at with India. I noticed a statement in a recent publication regarding the Labour Covenant that Japan had made such an advance in her agreement with the decision of the Labour Convention that she was practically bringing her economic conditions up to those which prevailed in Great Britain in 1914. The standard set out here is the eight hours standard, but if there is in existence in any industry a lower standard this amendment does not disturb it. All it provides is that, in such an important matter as the variation of the standard hours of an industry, the jurisdiction shall be exercised by three Judges at least, and the decision must be that of two of those three Judges. No more important decision can be given in any community than one regulating the hours of labour, for it may affect production very seriously, and, therefore, it ought to be given by a special authority. Federal legislation is, of course, very far-reaching. State Parliaments may pass laws, but these affect only the residents within their borders, whereas, a Federal industrial decision is as wide as the extent of an industry over the continent. Under the circumstances it is thought advisable to make the provision I propose.


Mr Ryan - May this not interfere with a matter being investigated by the President of the Arbitration Court?


Mr GROOM - I think that it may.


Mr Ryan - Do you not think that a very serious matter?


Mr GROOM - I do not.


Mr Ryan - Is it not interfering with a matter which is sub judice?


Mr GROOM - I think the honorable member will find that there are precedents in this Parliament for varying a law when matters are pending in Court.


Mr Ryan - It means that the. President cannot himself give a decision on the matter.


Mr GROOM - It means that the President cannot give a decision in any case provided for in the section which would decrease or increase the hours of labour, without calling in the requisite number of Judges.


Mr Maxwell - It still leaves power to increase the hours from forty-four to forty-eight


Mr Charlton - And acccording to the Bill, one Judge could sit for that purpose.


Mr Maxwell - I think that is so.


Mr GROOM - If the Bill is open to that construction it is not the intention; and I shall look into the matter.


Mr Bell - Will this Bill not complicate cases arising under the Industrial Peace Bill ?


Mr GROOM -No. Under that Bill the hours of labour will be determined by a Chairman, and representatives chosen on each side - more of an emergency tribunal.







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