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Thursday, 7 December 1911


Senator HENDERSON (Western Australia) . - In directing attention to this Bill, I wish to assign one or two reasons why I intend to support it. Like other honorable senators, I had the privilege of hearing Senator Millen indulge in the mild heroics to which he has treated this Chamber. He endeavoured to convey the impression that his opposition to the measure is really the result of the absolute strangeness of the principles which are embodied in it. It is perfectly true that up to the present time there has never been a possibility of our public servants obtaining access to the Arbitration Court. But the necessity for giving them that access has always been apparent. Yet at no time previously have we attempted to give them the advantage which is enjoyed by every other man in the community. Now I say, without hesitation, that if there be one institution which is incapable of dealing with the grievances of our public servants, either from the stand-point of their conditions of employment or of the rates of wages which are paid to them, that institution is this Parliamnt. Its incompetence in this connexion is so apparent that, to my mind, it is beyond argument. If equity and fair play aire to be meted out to our public servants, obviously it must be through some tribunal which can with calmness and deliberation review every circumstance brought under its notice, and which can then pronounce its judgment. Can such a judgment be obtained upon the floor of this Chamber? I go further, and say, without any desire to depreciate the ability of the Public Service Commissioner, that he is incapable of comprehending either the conditions of employment, or the adequacy of remunera- tion, of our public servants. He may be highly competent to deal with the administration of particular branches of the service, indeed, he may be quite fit to deal with the administration of two or three Departments; but when we come to consider the magnitude of our Public Service, I refuse .to believe that there is a man in the Commonwealth who is capable of understanding and of dealing justly with its members, throughout all its ramifications. Therefore, the public servants should have every facility or right which is given to any other citizen. I am sure that 1 voice the feelings of a very large majority of the public servants when I say that they are all manly enough to recognise that that is all which they ought to seek ; and the Bill, if I understand it rightly, aims at nothing more. It says, " You shall no longer be compelled to bear the stigma of secret reports," as indicated by Senator Needham. That those reports are made, the Commissioner cannot deny. He knows that he does receive secret reports ; that they are made in such circumstances that the public servants concerned have no knowledge of the fact; and, therefore, are not in a. position to defend themselves. Surely the Public Service should not, any more than any other service, be a secret society, nor should any opportunities be taken to injure men and to prevent them, on many occasions, from obtaining promotion to positions to which they have a right to expect to rise, and also from receiving the whole of the emoluments which they ought at all times to receive, merely because a report had been presented, to the Commissioner, probably three years before, that they had done some things with which they had never been made acquainted. That sort of thing has been going on, and consequently public servants have been suffering. Taking the position assumed by Senator Millen, I do not think that even Parliament would be capable of doing justice to situations arising out of such administrative methods. The only justice which it could do would be to sack the Commissioner for having at any moment allowed himself to be made a creature of by receiving reports of that character. I feel sure that the Judge of the Arbitration Court will place a true value on such reports, as well as upon the conduct of the men who were responsible for the presentation of them. I believe that in the Arbitration Court the Public Service may hope for justice and equity, and that is all they should, I think, ever ask for. Whilst we must recognise that the servants of the Commonwealth have a perfect right to justice in every sense, we have also to realize that the interest of the public must be considered; and that being so, I hold that the Arbitration Court is the most likely medium by which the interest of the servants and of the public will be faithfully recognised. 1 fail to see how it could ever be recognised by a Commissioner. I am aware that certain recommendations have been made by, or through, a certain process, which may have, to some extent, ameliorated the conditions of the employe's. But the tests which are being applied to show whether men are competent or not - tests which I cannot discuss on this occasion - will be given their true value when the case for the Public Service is placed before the Arbitration Court; and on the weight of that evidence, a great many of their grievances will, I feel sure, be remedied. The Leader of the Opposition endeavoured to make great capital out of the fact that, never under the Commonwealth has there been so much discontent in the ranks of the Public Service as there is at the present moment. I am not prepared to accept his statement as regards the discontent ; . but I am prepared to say that never before has there been a time in the history of the Commonwealth when the public servants felt themselves so free and untrammelled to voice their feelings as they do at the present moment, buoyed with the hope that there is a chance of getting immediate redress. It is because of that fact that we hear so much of the Public Service to-day. Probably, if the public servants of four or five years ago had said half so much publicly as they say to-day, very many of them would have been discharged. It is a very great pleasure to me to know that our employe's feel so free and unfettered as to be able to ventilate their grievances in no uncertain terms. I believe that the proper course is to give to them all the facilities for getting redress which are given to any other service in the kingdom, and nothing more.


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD (New South Wales) [9.35].- The last speaker devoted his attention largely to the question of individual grievances in the Public Service.


Senator Henderson - Not largely.


Senator Lt Colonel Sir ALBERT GOULD .- I think so. The honorable senator also took the trouble to state that, over and over again, the Public Service Commissioner has used confidential or private communications to the detriment of individual members of the Public Service, without giving them an opportunity to defend themselves.


Senator Henderson - I say so now, without fear of contradiction.


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - And I distinctly contradict the statement. I do not believe that any man placed in a position of that kind would so far forget his duty as to penalize men for alleged offences without giving them an opportunity to say a word in their defence. The honorable senator has not quoted a single case to prove the contention which he attempted to set up.


Senator Henderson - I shall prove it on some other occasion.


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - If the honorable senator did prove the contention would it justify the passage of this Bill ? Does he realize that under its provision no Judge of the Arbitration Court will be able to deal with individual cases, and that his duty will be merely to determine the rates of wages for classes and for sections, not for individuals. The Judge may have the right to determine the conditions in which men shall labour, but he will have no power to take into consideration and deal with individual grievances. If there are individual grievances, such as the honorable senator has indicated, they should be dealt with in an entirely different way. How could a Judge take into consideration the fact that Mr. Brown had complained that certain private communications had been made to the Commissioner, and that, consequently, he was not granted his increase of £10 or £20 or transferred to another Department?


Senator Henderson - As against that, how would the honorable senator and others deal with the same thing?


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - I am not here to say on this Bill how the matter ought to be determined. But I do say that if these grounds of complaint do exist they should be decided in an entirely different manner, and in circumstances which would allow them to be considered and dealt with properly and justly.


Senator Henderson - You know that that is impossible in the Public Service.


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - I know that, under this measure, it will be impossible.


Senator Henderson - Oh, no.


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - If public servants consider that, for their particular duties, they are unjustly treated, either because the rates of pay are insufficient, or because the hours of labour are too long, or because the conditions of labour are unsatisfactory, they can bring the matters before the notice of the Judge, but they cannot go beyond that. Where an Act of Parliament, such as our Public Service Act, has stated that there shall be certain rates of pay - a maximum and a minimum - for particular classes of public servants, and it is not proposed to repeal that Act, either directly or indirectly, is the Judge of the Arbitration Court going to say to Parliament " You have dealt with this matter entirely by your Statute. Instead of the rate of pay for a particular class ranging from £150 to £250, it ought to range from£200 to


Senator Henderson - Why not?


Senator Lt Colonel Sir ALBERT GOULD - Because the Statute which it is not attempted to get rid of prescribes the rate, and, moreover, because this Bill provides that any award which is not in accord with the lasvs or regulations of the Commonwealth shall be set aside at once.


Senator McGregor - No, it will not be set aside.


Senator Lt Colonel Sir ALBERT GOULD - How is it possible to repeal an Act except by another Act?


Senator McGregor - If an award is laid before Parliament and is agreed to it will take the place of any Act of Parliament.


Senator Lt Colonel Sir ALBERT GOULD - Clause 15 reads - (2.) The Court may, where it thinks it proper to do so, make an award which, in the opinion of the President of the Court, is not, or may not be, in accord with a law or regulation of the Commonwealth relating to the salaries, wages, rates of pay, or terms or conditions of service or employment of employees ; but in that case the President shall send to the Prime Minister, and to the Attorney-General, with the certified copy of the award, a statement of the laws or regulations of the Commonwealth with which, in his opinion, it is not, or may not be, in accord. (3.) The Prime Minister shall, within fourteen days after its receipt, if the Parliament is then sitting, or if not then within fourteen days after the next meeting of the Parliament, cause the award, and the statement (if any) of the President, to be laid before both Houses of the Parliament. (4.) If, before the award is laid before the Parliament, the Attorney-General advises the Prime Minister that in his opinion the award is not in accord with any law or regulation of the Commonwealth referred to in the opinion, the Prime Minister shall cause the opinion to be laid, together with the award, before both Houses of the Parliament. (5.) If, in the case of an award accompanied by such a statement of the President, or opinion of the Attorney-General, as is above referred to, either House of the Parliament, within thirty days after the award with the statement or opinion has been laid before both Houses, passes a resolution disapproving the award, the award shall not come into operation.


Senator McGregor - Read sub-clause 6.


Senator Lt Colonel Sir ALBERT GOULD .- It reads-

Except as provided in the last preceding sub section, but subject to the Constitution, the award shall from the expiration of those thirty days or such later period as is specified in the award, have full force and effect notwithstanding the provisions of any law or regulation of the Commonwealth.

So that is what the honorable senator is building his case on. I notice that the expression " but subject to the Constitution ' ' is used. The Constitution provides that Parliament shall speak by its Statutes. Under the Constitution, we can repeal our Acts only by the way in which we pass them. If we could do otherwise, what an absurd position should we not be. placed in! If that were possible, the Senate, by a resolution, and without going through the form of an Act of Parliament, might say, " We will not have this Act any longer in force," and the House of Representatives would be powerless. In the same way, the House of Representatives might pass a similar motion, and the Senate would be powerless. Do not honorable senators see the ridiculous position in which their arguments would place them? Where would be the safety of the community under such a proposal ? Are there members of the Senate who would take advantage of a provision of that character to destroy an Act of the Parliament arrived at by deliberation of both Houses?


Senator McGregor - No; the honorable senator is making a mistake again.


Senator Lt Colonel Sir ALBERT GOULD - Of course I am, according to Senator McGregor. This thing is held up before the people of the country, and particularly before the public servants, who, I say, were cajoled by honorable senators opposite at the elections.


Senator McGregor - The honorable senator is not putting the position properly.


Senator Lt Colonel Sir ALBERT GOULD - Suppose the Judge of the Arbitration Court reported to the Senate that he considered that a particular class of public servants, paid at the rate of between £300 and , £400, ought to be paid at the rate of between£400 and £500. Does the Vice-President of the Executive Council mean to tell me that a mere resolution of this Parliament in accordance with that recommendation could destroy the terms of an Act of this Parliament deliberately passed by both Houses?


Senator Mcgregor - The honorable senator is putting the matter in the wrong way.


Senator Lt Colonel Sir ALBERT GOULD - Because I am not looking through Senator McGregor's spectacles.


Senator Mcgregor - No; the honorable senator is not dealing with the Bill as it is. A resolution of either House would annul a decision of the Arbitration Court, and it can only be brought into operation if both Houses of the Parliament refrain from moving any resolution to annul it. If the honorable senator will put the matter in that way, he will be correct.


Senator Lt Colonel Sir ALBERT GOULD .- Well, I will put it in that way, and I ask whether Senator McGregor knows of any Government that has ever held office in any British-speaking community that would be prepared to permit an award or report by a Court to override an Act of Parliament. I say that the Government that would be prepared to do that would be recreant to their trust. It is the duty of the Government to administer the law as passed by the Parliament ofthe country. I have already said that the Judge of the Arbitration Court will be unable to deal with individual cases. He must take the service in globo, and decide the wages to be paid for particular services, and the conditions under which they shall be rendered. If, in the administration of a Department, an injustice such as that suggested by Senator Henderson were perpetrated, quite another tribunal would have to deal with the matter.


Senator E J RUSSELL (VICTORIA) - Can the honorable senator show me in this Bill anything that would prevent the Public Service Commissioner dealing with individual grievances ?


Senator Lt Colonel Sir ALBERT GOULD - Senator E. J. Russell has indicated the real position. The Public Service Commissioner has that power, but my point is that, under this Bill, the Judge of the Arbitration Court will not have that power. Individual grievances will still have to be dealt with by the Public Service Commissioner, not as Mr. McLachlan, but as the servant of this Parliament.


Senator W RUSSELL (SOUTH AUSTRALIA) - The Judge will hear two sides, and the Public Service Commissioner only one.


Senator Lt Colonel Sir ALBERT GOULD - The Public Service Act makes provision for an inquiry into any grievance complained of by a public servant.


Senator Needham - There is only an appeal from Caesar to Caesar.


Senator Lt Colonel Sir ALBERT GOULD - The only difference in this case is that the testimony given at the inquiry would be on oath before the Arbitration Court. If honorable senators were to contend that the position of the public servants would be strengthened by the appointment of three Commissioners instead of one, I should not object to such a contention. I quite recognise the unsatisfactory nature of an appeal, as Senator Needham has said, from Caesar to Caesar. That could be avoided by having these inquiries conducted by three Commissioners. I remind honorable senators, however, that, notwithstanding all that may be said of the independence of the position of the Public Service Commissioner, he is still the servant of Parliament, and in a much more strict sense than the Judge of the Arbitration Court could or ought to be. Under this Bill, it is proposed to call upon the Judge of the Arbitration Court to make awards. I would ask honorable senators how awards of the Court have already been dealt with. They have been treated by many people with contempt when they have not been in accord with their own views.


Senator Needham - The honorable senator is quoting the exception to prove the rule.


Senator Lt Colonel Sir ALBERT GOULD - I am quoting what has frequently occurred. I need only refer to what happened recently in Sydney, when a certain section of employes in direct opposition, I admit, to the advice of their own executive, insisted upon a course of action entirely contrary to that which they had agreed to take. Suppose that the Judge of the Arbitration Court makes an award, strictly in accordance with the law, and sends his report to this Parliament, and suppose that, instead of grading officerswho had been in the service for five years at£150a year, he considered that the service they rendered was worth£175 a year, and the award would still keep them within the maximum of their class. Then, suppose that Parliament would not consent to the award. What would be the position? We should have invoked the Judge of the Arbitration Court to deal with the matter, and, because we did not agree with his decision, we should decline to give effect to it.


Senator McGregor - Parliament would then have to take the responsibility.


Senator Lt Colonel Sir ALBERT GOULD - Parliament sends a matter to the Court, and, because the decision does not accord with the views of the Government, or the party behind them, they bring their political power to bear, and deal with the President of the Arbitration Court as if he were an ordinary servant of Parliament, instead of the representative of an independent tribunal. If the Judge of the Arbitration Court were to say that the payment to be made to officers of a particular class in the service should be less than they are at present receiving, Parliament probably would not accept that; but if we are going to send these cases to the Arbitration Court, we should be prepared to accept the decisions of the Court when they are within the provisions of the Statute. If we think that our public servants are not properly paid, or properly graded, we should alter their condition by Statute. When the Civil Service Act was introduced into the Parliament of New South Wales many years before the establishment of the Commonwealth, a Civil Service Board was appointed to deal with the grievances of public servants, because it was said, amongst other things, that members of Parliament were being constantly importuned in connexion with individual cases.


Senator Needham - The honorable senator should not use the word " importuned."


Senator Lt Colonel Sir ALBERT' GOULD - If the honorable senator does not like the word, I shalluse any other having the same significance. I shall say "waited upon," or " deputationized. " The question was asked, " Why should; members of Parliament be constantly ap- plied to by public servants, and why should public servants be compelled to go to members of Parliament?"


Senator O'Keefe - Why should not a public servant have the same right as any other elector to approach a. member of Parliament ?


Senator Lt Colonel Sir ALBERT GOULD - He has that right. But the question was asked, " Why should public servants be compelled to go to members of Parliament to secure justice?" A Civil Service Board- was appointed under the Act to which I have referred, and it was intended that it should be free from political influence. It was considered that the adoption of that course would be in the best interests of the Public Service, members of Parliament, and the country. If we appoint a specialbody to deal with all these matters, why should it be necessary, or desirable, that a member of Parliament should be invoked, in order to bring the power of his political position to bear upon a Public Service Commissioner in dealing with the grievance of a particular public servant ?


Senator Needham - He need not do it; he is not asked to do it.


Senator Lt Colonel Sir ALBERT GOULD - Why is Senator Needham asked by a public servant to assist him in getting what he regards as legitimate promotion ? I know that it is not pleasant to contemplate such a contingency, but if the honorable senator, by any chance, failed tobe again returned, and Mr. Jones were returned in his stead, the public servant would go to Senator Jones, and not to Mr. Needham. This would not be because Jones was a man of greater weight in the community than his predecessor in the position of senator, but simply because one man would occupy a political position, and the other would not.


Senator Needham - That is not the motive at all.


Senator Lt Colonel Sir ALBERT GOULD - Then I do not know why any member of Parliament is approached. If Senator Needham were to drop out of Parliament for a few years, he would not find the public servants so anxious to wait upon him. Again, I say that Parliament should retain in its own hands the sole control of the Public Service, subject, of course, to such officers and boards as it may see fit to appoint. I think that the Government are making a mistake in taking this matter up. in the way they are doing. If griev ances exist there are more efficient ways of dealing with them, methods more consonant with the principles of government, than are contained in this Bill. Senator de Largie, although a member of the Postal Commission, has announced that he will support the Bill. Of course, every Labour man, every member of the Caucus, is going to vote for it.


Senator W RUSSELL (SOUTH AUSTRALIA) - And the honorable senator's Caucus will oppose it.


Senator Lt Colonel Sir ALBERT GOULD - We have no Caucus.


Senator W RUSSELL (SOUTH AUSTRALIA) - The honorable senator's party has just as much a Caucus as we have.


Senator Mcgregor - They are very sorry that their Caucus is not " as good as ours.


Senator Lt Colonel Sir ALBERT GOULD - We cannot hold our members as the Labour party do; that is certain.


Senator McGregor - The honorable senator's party meets often enough, but they cannot do much good.


Senator Lt Colonel Sir ALBERT GOULD - Perhaps not. Senator de Largie contended that this Bill is not inconsistent with the Royal Commission's report. But there is not a word in that report as to this method of dealing with the problem. Senator de Largie, moreover, signed a minority report. Did he make a suggestion of this kind then?


Senator de Largie - The minority report dealt only with one question.


Senator Lt Colonel Sir ALBERT GOULD .- Exactly ; but if the honorable senator believed that this was the best method of dealing with public servants' grievances, why did he not mention it in the minority report ? Instead of that, with the true gallantry that has always distinguished him, he occupied that report with taking up the cudgels on behalf of female members of the Public Service. Honorable senators will find that, though this Bill involves a strange departure from the practice hitherto pursued by Parliament, it will not be so effective as a remedy as some profess to believe. It places the question ' in a really absurd position. If the contention is that, by resolution, the Court may as it seesfit override Statute law, unless this Parliament chooses to prevent it, it will be a most novel procedure.


Senator de Largie - If the honorablesenator does not like this method, what does he propose to put in its place? Something must be done;


Senator Lt Colonel Sir ALBERT GOULD - What is it that the honorable senator wants?


Senator de Largie -i want facilities to be given to the civil servants to get their grievances redressed by a proper method. What is the Opposition's proposal?


Senator Lt Colonel Sir ALBERT GOULD - We on this side are not called upon to indicate a means. When my honorable friend, Senator Millen, occupies the position that Ministers do at present, it will be time for him to indicate on behalf of his Government what remedies they suggest. I am speaking simply on my own behalf. I have indicated that I shall be prepared to see three Commissioners appointed to control the Public Service. I am prepared to assist in bringing about such a reform, but I am not prepared to assist honorable senators opposite in entirely abrogating the rights of Parliament and handing them over to a Judge. I believe that such a method would be wholly unsatisfactory. I shall not trouble honorable senators very much in Committee concerning this Bill, nor will I do anything to obstruct the will of the majority. At some future time Parliament may have an opportunity of reviewing a good deal of the wildcat legislation that has been enacted by this Parliament. When that time comes, the country will be afforded an opportunity of breathing and being relieved from the oppression from which it is suffering in consequence of the adoption of all sorts of novel expedients to which the party now in power have not given the consideration that the public interest demanded.







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