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Tuesday, 7 September 1920


Mr GROOM (Darling Downs) (Minister for Works and Railways) . - Obviously, I must oppose the amendment. If the honorable member for West Sydney (Mr. Ryan) were in the Queensland Parliament, do honorable members imagine for a moment that he would consult the pastoral lessees of Queensland before action was taken to deprive them of rights which they enjoyed under contract by law ? Do honorable members think that he would consult the pastoralists whose meat he commandeered at certain low prices before he decided to take that action ? He is now asking the House to introduce an extraordinary principle in legislation. Do honorable members think that before he decided to fix the price of the Queensland farmers' butter he would ask them whether they approved of what he proposed to do?


Mr Maxwell - Surely the honorable member does not say that the two things are alike.


Mr GROOM - No, but the principle involved is the same. It is that before a Bill is introduced dealing with the rights of persons under the existing law the persons affected should be first consulted. There is no distinction in principle. I am sure that the public servants of Australia would never put such a request to the Commonwealth Parliament. The honorable member who has moved the amendment is, always suggesting ulterior motives to the Government. May I ask him what is the motive behind his amendment?


Sir Robert Best - That is more to the point.


Mr GROOM - It is more to the point. However, let us get to the merits of the question. I intend to reply to various aspects of the discussion. First of all, the honorable member for West Sydney (Mr. Ryan) charged us with taking away from the public servants under this Bill something which at present they possess under the Arbitration (Public Service) Act. He says that this Bill is different from that Act. What are the differences ? The honorable member has not given the House a single illustration of a. difference between the two in support of his statement. I followed his speech closely and critically, and jotted down the points he made as he went along. He said that the Bill will not give the public servants their costs. Obviously, he has not read the Arbitration (Public Service) Act which is in force at the present time. It is provided by section 11 of the Arbitration (Public Service) Act of 1911 that " no costs shall be allowed in respect of any proceedings under this Act.", That section is reproduced in this Bill, yet he says that this measure is entirely different from the existing Act, and apparently refers to the fact that costs are not allowed the public servants under it as one of the differences. As a matter of fact, this Bill is the Act of 1911 almost in its very words, clause for clause, with the exception' of two clearly defined principles, which I shall mention.

It is proposed under this Bill to appoint a Public Service Arbitrator instead of asking one of the Judges of the Arbitration Court to exercise jurisdiction in Public Service cases. That is a distinct issue before the House. Is it right that we should make that particular appointment ? I shall give reasons why it is proposed. First of all, let me say that the Government, in introducing the measure, have been actuated by none of the sinister motives -suggested by the honorable member for West Sydney. The Bill is not introduced because of any lack of appreciation of the efforts of public servants. I was closely associated with the Public Service from 1917 onwards, during the war, and I say that we have reason to be proud of a great deal of the work done by the public servants of the Commonwealth. I know heads of Departments who, during the war, took Alien1 beds into their offices, and, in their devotion to duty, never left their offices for weeks on end. I am glad to 'find that, apparently, honorable members opposite have the same appreciation of the public servants that we have. Our desire is to do justice to them, to give them the benefit of fair standards, but those standards should be good and consistent, and should tend to the efficiency of the Service.

We are not taking away from the public servants any of the rights and privileges to which the honorable member for West Sydney referred. All the rights they possess under the Arbitration (Public Service) Act 1911 are preserved to them. The only difference is that the determination of the rights of the public servants is to be left to the decision of a Public Service Arbitrator, whose sole function will be to deal with these matters which to-day are the subjects of some varying decisions by different Judges. All that can be done by a Judge of the Arbitration Court in regard to rights, privileges, conditions, and everything else in connexion with the Public Service may be done equally well by the Arbitrator.


Sir Robert Best - He is to be practically a Deputy President of the Arbitration Court.


Mr GROOM - He will be in the same position as a Deputy.


Mr Francis - If the Arbitrator is to be practically a Deputy of the Arbitra- tion Court, can we use the same arbitration machinery in connexion with the carrying out of his functions?


Mr GROOM - Yes, excepting in one particular. It was stated by honorable members opposite that we are creating a new Department and new machinery, and perhaps the honorable- member was misled by that statement. The Registrar under this Bill will be the Registrar under the Arbitration Act. The claims will be filed in exactly the same way; but instead of a Justice of the High Court walking on to 1 the bench, the Public Service Arbitrator will do so. That will be the actual position.

There are several reasons why we should make this appointment. The first is that the Government desire to relieve the congestion of business in the Arbitration Court. To that end we have already provided for the appointment of additional Deputies. The appointment of ah Arbitrator under this Bil! will relieve the Court in part of thirty-three Public Service cases which are listed at the present time.


Mr Richard Foster - That is more than 25 per cent, of the total number of cases awaiting decision.


Mr GROOM - Apart from those thirty-three Public Service cases, there are, I think, eighteen other industrial cases and four compulsory conferences awaiting the attention of the Court. This appointment will do much to get rid of the congestion of business in the Court. There is another reason : The number of High Court Judges is limited, and, as honorable members know, their most important function is of necessity the constitutional and appellate work for which they were appointed, but at considerable inconvenience to themselves they have undertaken extra work. For the help they have rendered in this way they are deserving of the thanks of the country. But different Judges of the High Court are engaged in the Arbitration Court from time to time, and this has naturally led to some varying awards being made. Mr. McLachlan, in his report on the Public Service, has drawn attention to that fact.

I may here explain that this Bill is not introduced to carry out all the recommendations of Mr. McLachlan; indeed, it represents a course of action contrary tq that which he advised. He stated -

The Commissioner should be constituted the sole authority for settlement of salaries and wages, hours of labour, and conditions of service of permanent, temporary, and exempted employees, and his decision, subject to disallowance by Parliament, should be final and conclusive.

The Government have not accepted that recommendation; we are proceeding in direct opposition to it. Dealing with the existing position in regard to arbitration decisions by different Judges, Mr. McLachlan says at page 12 of his report -

It would be tedious to recount all the inconsistencies which appear in the awards of the Court, but it may suffice to say that in such a matter as payment for holiday duty three different systems have been adopted by the Court, that the matter of granting allowances to officers acting in higher classified positions is dealt with in four separate ways, while some awards provide for granting of increments when so acting, while others do not. Overtime is determined in a multiplicity of ways, and this applies also to relieving allowances. Under some awards, travelling time is conceded, while in others it is not granted, although the circumstances are similar. Increments are granted from the actual due date, or from the first day of the month, or from the first day of the pay period, this being dependent upon the particular award governing the matter. In the same clause of one award provision is made that officers of the Clerical Division shall receive the adult minimum wage from the first day of the month following the twenty-first birthday, whilst those in the General Division are to receive it from the actual birthday. In one award the stretch of shift allowance is ls. per hour, while in another award it is time and a half. Increments are granted on different bases for no apparent reason. The inconsistencies of arbitration awards are puzzling in the extreme, and this feature alone has greatly intensified the difficulties of working the Public Service.

Because of the diversified nature of the problems with which the Judges have had to deal, these conflicting awards have been inevitable. Therefore, in order to secure uniformity in and justice to all sections of the Service, it is highly advisable that all claims should be dealt with by one Arbitrator able to devote his whole time to that particular duty.

Honorable members opposite have complained that we are treating the public servants differently from the rest of the community ; the honorable member for Yarra (Mr. Tudor) said that- they are not to have the same right, as other people. That is not the problem with, which, we have to deal. In ordinary arbitration matters the Judge deals with an industry as a consistent whole. To-day it may be the shearing industry, to-morrow saw-milling, and on the third day some other industry, but he considers the industry as a whole, and makes the one award for the whole Commonwealth. An arbitration claim in regard to the Public Service, with its multiplicity of functions and its various Departments, all more or less interwoven into one huge system, is on an entirely different footing; and to continue the present system by which one Judge to-day hears a claim from one branch of the Service, and another Judge to-morrow hears a claim from another branch, would obviously lead to further inconsistencies in awards and wrong to the officers themselves. . To-day some are receiving benefits under an award which another award does not give to others. I ask honorable members to consider the wide ramifications of the Public Service, necessitating on the part of an Arbitrator a very close examination of the work of the different Departments and relationships of the Clerical, General, and Professional Divisions. Even in the Professional Division there is one award for the legal officers and another for draftsmen, architects, and other technical servants of the Commonwealth. Then there are awards for the linesmen and other employees of the Postal Department. Yet all these various officers are part of a great Commonwealth system governed by the Public Service Act, which confers upon them various rights and privileges in connexion with the carrying out of their duties. I was the Minister who in 1905 introduced into this House the first scheme for the classification of the whole of the Public Service of the Commonwealth. It was a task that occupied Parliament for some weeks, and I well remember, as I am sure does the honorable member for Perth (Mr. Fowler), the difficult problems we had to solve in consolidating the services, with their varying rates of pay, over the wide continent. We must not forget that we are legislating for a continent, and are seeking to do justice to men scattered all over Australia for carrying out the daily growing functions of the Commonwealth. Is this a problem that ought to be dealt with piecemeal, one Judge to-day dealing with the claims of postal assistants, and another Judge to-morrow hearing a plaint by the Professional Association or some other organization connected with the Service? In order to be just to the men, as well as just to the Commonwealth, we ought to appoint one man to deal equitably and justly with all these varying but related problems, so that right may be done to all parties.


Mr Richard Foster - This proposal will be a distinct advantage to the Service.


Mr GROOM - It will be of great advantage to the men, because it will give them the right and the opportunity to get a fair deal.

I ask honorable members to consider what the procedure will be. This Bill is one of a series of three. The one dealing with arbitration generally has already been sent to another place. A second measure creating a Board of Management for the Public Service has come from the Senate to this Chamber. That Board of Management will take over the functions hitherto performed by the Commissioner. The duty of the Commissioner was to have regard to the nature of the vast Commonwealth Service, and frame a scheme for dealing with its members equitably. I agree with honorable members that no fairer, more capable, or more just man than Mr. McLachlan ever held a position in the Commonwealth Service. It was part of his duty to fix the salaries and conditions of the Service, but some of his decisions led to dissatisfaction, and it was felt that the Government employees should have a right of appeal from his decisions. Parliament accordingly passed the Arbitration (Public Service) Bill, which allowed public servants to refer their claims to the Arbitration Court. Thi3 Bill does not propose to alter that fundamental principle. The arbitration principle will , remain. After the Board of Management has similarly fixed the terms of employment of the officers, those organizations who feel that they are aggrieved in any way by the act of that public body may appeal to an independent tribunal in the person of the Public Service Arbitrator. We are proposing to give the public servant the best possible form of tribunal.


Mr Richard Foster - If the Bill for the creation of a Board of Management had been introduced first, the Government would have secured greater support for this measure.


Mr GROOM - There was a reason for introducing this Bill first; we desired to get it passed in order to relieve the congestion in the Arbitration Court as soon as possible. The Board of Management will consist of three independent persons. Their duty will be to perform the present functions of the Commissioner, which include grading and classifying the Service, and determining the rates of remuneration. In order to allow of an appeal from the decision of the Board we are proposing to constitute this special Arbitration Court, the necessity for which honorable members will realize if they will consider the complications and ramifications of the Service, the claims of which are necessarily in a category different from those of employees in one complete and consistent industry.


Mr Richard Foster - The two Bills together will be a boon to the Service.


Mr GROOM - I believe so. Let honorable members' not think that I minimize the seriousness of a big award dealing with an industry like shearing; but that industry is a complete whole. In the Public Service, however, there is a series of associations, each calling for adjudication on different claims and problems. No less than thirty-three cases relating to various phases of the Service are listed before the Arbitration Court to-day.

It has been suggested by several honorable members that we should have a Court constituted of an Arbitrator and two assessors. But, obviously, two assessors could not possibly know everything connected with the whole of our Public Service. Of what use would be an assessor from the General Division in advising the Court how to classify professional officers ? The idea is an impossible one. The other suggestion is that assessors should be called in to deal with specific cases - assessors from the Professional Division to deal with cases in which professional officers are concerned, and so on throughout the Service. It is to this particular point that I desire to address myself. There is a departure in the Bill from the Arbitration (Public Service Act 1911, in that sub-clause 5 of clause 12 provides that, where a memorial has been filed asking for relief, the Minister or the Public Service Commissioner, or the particular person who is opposing the claim, may lodge an objection to it. When that has been done the obligation is thrown on the Arbitrator to convene a conference. To some extent this provision approximates to the idea which underlies the Whitley Council. As soon as an objection is lodged to any memorial the Arbitrator must convene a conference of both sides.This provision will give effect to the idea suggested by the honorable member for Wentworth (Mr. Marks), who said that he would like to see the Public Service arbitration tribunal stripped of the garments of law as much as possible.


Mr Brennan - Is that not the way in which all cases will have to be initiated under this Bill?


Mr GROOM - Yes. It is in the interests of the men concerned.


Mr Charlton - But that conference will not deal with evidence.


Mr GROOM - It may do so.


Mr Charlton - It is not likely to do so.


Mr GROOM - Take the case of a plaint setting out twenty or thirty different matters, and let us assume that the other side has filed an objection to it. The representatives of both sides will then meet and confer. A general discussion will ensue, and the Arbitrator will endeavour, as far as possible, . to reconcile the parties upon the various points in dispute.


Mr Charlton - But suppose that finality is not reached as the result of that general discussion. If the case has to proceed, would it not be to the advantage of the Arbitrator if he Had the assistance of a representative of the men, and also of a representative of the other party ?


Mr GROOM - I do not think so. Ultimately, the decision of any case must rest with the Arbitrator, who has power under clause 13 of the Bill to inform his mind in any way that he may think fit. If he desires the assistance of an assessor he may obtain it. I recollect that when Mr. Justice Higgins was dealing with a highly technical case some time ago he called in Professor Laby, of the Melbourne University, to advise him with respect to the different people concerned. The Professor submitted a report, which. I presume, was much more useful tothe

Judge than would have been the assistance of a representative of one of the parties.


Mr Charlton - The Arbitrator should have the assistance of a man who understands the difficulties with which he is dealing.


Mr GROOM - He can obtain that.


Mr Charlton - But he should have it when he is dealing with the evidence.


Mr GROOM - There is nothing in the Bill 'to prevent the Arbitrator having the assistance of representatives at any stage in the case.


Mr Richard Foster -The Arbitrator may call in anybody whom he may desire to assist him.


Mr GROOM - Yes. It is open to him to call in a representative from either side. The Judge of the Arbitration Court is untrammelled at the present time. The Arbitrator, under this Bill, may take such steps as will enable him to best inform his mind in respect of any case with a view to doing absolute justice to the parties concerned.


Mr McWILLIAMS (FRANKLIN, TASMANIA) - But in the case of the Arbitration Court an appeal may be made from the decision of one Judge to other Judges, whereas under this Bill the appeal will have to be from the decision of the Arbitrator to a Judge.


Mr GROOM - No. The Bill provides that there shall be no appeal from the decision of the Arbitrator. His decision will be final and conclusive; nor is there an appeal in the Arbitration Court from the decision of one Judge to other Judges.


Mr McWILLIAMS (FRANKLIN, TASMANIA) - The Minister said that an appeal may be made from the decision of the Arbitration Court, and that under this Bill there will be room for an appeal in the same way.


Mr GROOM - I did not say that. Today an appeal may be made from the decision of the Public Service Commissioner to the Arbitration Court, and when the Public Service (Board of Management) Bill has been passed, an appeal may be made from its decision to the Public Service Arbitrator in exactly the same way.


Mr Marks - But an appeal may be made to the Arbitrator himself for a variation of his award.


Mr GROOM - When an award has once been given it will always be possible to go back to the Arbitrator and ask him to vary it, or to re-open the matter.

May I remind honorable members of a few remarks which were made on the 25th August by Mr. Justice Starke, in the case of an application by a representative of the Telephone Operators Association. Upon that occasion it was the desire of the organization in question to bring several witnesses from New South Wales. Mr. Justice Starke is thereupon reported to have said -

He would not, however, rush on the hearing of any eases in order to retain certain jurisdiction over them. He wished to say that a great deal of the evidence which it was thought necessary to call before him was quite unnecessary.


Mr Nicholls - That is merely his opinion.


Mr GROOM - And the opinion of a Judge is worthy of consideration. His Honour continued -

In the plaint of the Federated Public Service Association he considered that one-quarter of the evidence that had been called was not required. The case had therefore lasted far longer than it should have done, because witnesses had been called from here, there, and everywhere. They had, however, added very little to the case and very little to his knowledge of it. To specially call telephonists from New South Wales is almost ridiculous.

That is the view of a Judge of the Arbitration Court, and as honorable members opposite are pleading for the retention of his jurisdiction over our Public Service, it is only fair that I should quote it. In these cases, irrelevant and unnecessary evidence is sometimes called. Now the advantage of a preliminary conference in such cases will be the means of effecting a great saving to the organizations belong-' ing to our Public Service. It will mean that before the Arbitrator hears a case there will be a sifting out of irrelevant matter in order that he may focus his mind upon' the real vital issues of the plaint. In that way, a very great improvement will be effected.

I have now touched upon the main issues which have been raised by the amendment that has been submitted. But there are one or two minor matters that have been mentioned by honorable members to which I must refer. Complaint has been made that under the Bill the awards will be required to lie upon the table of the House. It is very strange that, although this practice has been followed since 1911, it is only now, when we are re-enacting a provision which has been in operation so long, that objection is taken to it. The honorable member for West Sydney (Mr. Ryan) quoted the view expressed .by the Prime Minister (Mr. Hughes) when introducing the Act of 1911. Upon that occasion the right honorable gentleman drew attention to the absolute necessity of Parliament preserving this right of veto. It should possess it, because, after all, we represent the people in whose employ our public servants are.


Mr Charlton - Suppose that the Arbitrator awards an increase of wages in January and that Parliament does not meet until April, from when will the award date?


Mr GROOM - That will depend entirely upon what the Arbitrator thinks ought to be done in any particular case.


Mr Charlton - Suppose that he decides that the members of an organization shall get their increase from the date of his decision, and that Parliament is not then sitting?


Mr GROOM - At the present time it is possible for the Judge of the Arbitration Court to embody in his award a clause setting out the date to which it shall be made retrospective. In the case of the Public Service Clerical Association versus the Public Service Commissioner of the Commonwealth, Mr. Justice Powers gave his award on the 1st October, 1919. In doing so, he inserted a clause setting out -

The amount awarded by this variation shall, if the award is not disapproved of by Parliament, be payable as and from the 1st August, 1019, except where otherwise provided.


Mr Charlton - Then, if Parliament be not in session, the award will be made retrospective?


Mr GROOM - In that case, it did not matter when Parliament met, because when once the award had been tabled for the requisite period and not disapproved, the award became operative from the date' fixed by the Justice. Suppose that on the 1st January a plaint is filed in the Arbitration Court, and that on the 1st May the Judge hears it, and decides that the award shall be made retrospective to the 1st January. He already has power to say - and the Arbitrator under* this Bill will have power to say - " This award shall date from the 1st January.'' Then, even if Parliament does not meet until the following December, the award will have a retrospective operation.


Mr Charlton - But the members of the organization will stand out of the increase until Parliament meets?


Mr GROOM - Of course. That is inevitable. It is the law at the present time. There is no other way in which the matter can be dealt with. But these are not cases in which men are living upon an absolutely starvation wage. Presumably, the Public Service Commissioner has fixed salaries which were fairly commensurate with the nature of the service rendered. I do not think there is any great hardship in leaving the matter until Parliament shall decide.


Mr Nicholls - Could the position not be simplified by saying that the rate of pay shall be granted from the date the plaint was filed ?


Mr GROOM - That could not be done in all cases. In the first place, the Judge may not have awarded that. Whether an award shall be made retrospective or not is surely a matter for the Arbitrator.


Mr Nicholls - It has not been so in the past, but has been a matter for mutual agreement between the employer and the employee.


Mr GROOM - Where there is no agreement in all these cases it is left to the Court. As a matter of law, with whom should it rest? Obviously, it ought to rest with the Judge. It would be quite wrong to enact' that in every case an award may be made retrospective whether that be justifiable or not.

There are other minor points which, however, I shall reserve until we get into Committee. I ask the House to accept the Bill, and to repudiate the suggestion made by honorable members opposite that it is in any way intended as an attack on, or a means of injury to, the Public Service. On the contrary, this legislation is distinctly in the interests of the members of the Public Service, and if it be passed as introduced it will provide some very useful machinery. The honorable member for Parkes (Mr. Marr) referred to one case as having cost £14,000. Without doubting the statement for a moment, I should much like to see that bill of costs, and ascertain how it was incurred. If a bill of that dimensions was incurred, I think it would be found to consist largely of the cost of bringing men from all over the

Commonwealth, to give evidence in Melbourne. That ought not to be, and I believe it will be prevented by the conference proposals in the Bill.


Mr Richard Foster - But the Arbitrator will travel from place to ;place ?


Mr GROOM - He will be free to travel all over the Commonwealth; there need be no sitting at the Seat of Government only, so far as he is concerned.


Mr Mahony - Will the Minister say who is to be the Arbitrator?


Mr GROOM - I ask the honorable member to keep quiet for a little while. That question is an absolutely open one, for no one is even in contemplation; our only desire is to appoint the best man we can get for a position of such importance. Under all the circumstances, I ask the House to reject the amendment, and pass the second reading of the Bill.







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