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Wednesday, 13 April 1904


Mr HUME COOK (BOURKE, VICTORIA) - The honorable and learned member for Wannon does not make any secret of his intention respecting this measure. To quote his own words, he is opposed to it " lock, stock, and barrel." I am happy to say that that is not my position. Although I find myself in somewhat of a difficulty respecting action which it is proposed to take in connexion with the measure, and have therefore risen to say something on this occasion, when otherwise I might have remained silent, I hope that, whatever may be the fate of the amendment for including public servants, we shall have an Arbitration Act of some sort placed upon the statute-book. I think that it is necessary to industrial peace and progress that there should be a more modern method resorted to, in the shape of arbitration, for the settlement of the crises which occasionally arise in connexion with the conduct of great manufacturing, pastoral, or other industrial concerns, than that the decision should be left to force. I think it is to be regretted that something of the sort was not adopted years ago by the States, before Federation came about. So far as our knowledge and experience go, arbitration has been useful, and has been followed with good results wherever tried, and if it be good for the individual State, it must be good for all the States and for the Commonwealth. It may, of course, be. urged that our experience of compulsory arbitration is not very far reaching, or of long duration, but that is not a valid argument against the introduction of a measure of this kind. We must occasionally be pioneers in legislation. We cannot alwayys refuse to take any step within our own legislative domain until we have the experience of others to guide us. That might be a good plan to adopt in some cases, but it will not always harmonize with Australian ideas of statesmanship or progress. The honorable and learned member for Angas spoke of voluntary conciliation and arbitration, but I do not quite understand how one can at this late stage of affairs insist upon that method. We know that, with very few exceptions, voluntary arbitration has never been successful. South Australia has had for years an Act providing for voluntary arbitration, but I do not think that the honorable and learned 2 g member, notwithstanding his wide knowledge and experience of its working, can point with confidence to any splendid or striking example of its success. As a matter of fact, we know it to have been entirely unsuccessful. If we look further afield, to countries such as America or Great Britain and Ireland, we find that, with few exceptions, voluntary arbitration has been unsuccessful there. What militates against its success is the fact that the parties to a voluntary agreement cannot be bound to respect it any longer than they wish so to do, and the sweater and unscrupulous employer can at any time put an end to conditions which honorable men are willing and anxious to maintain. Our experience in Victora has been that it is not the honorable men for whom we have to legislate. They are always ready to agree to voluntary arbitration, and there are splendid instances upon record in this State in which reputable manufacturers and importers have voluntarily arranged rates of pay and hours of labour which were a credit to them. . It has, however, been necessary to legislate against the unscrupulous individual who, to become rich quickly, grinds down his employes, and seeks to make money at the expense of the flesh and blood of his fellow citizens. Such men do not respect voluntary agreements. In some cases employers who had agreed to comply with certain conditions have deliberately broken their agreements, and have unfairly competed with others by sweating their employe's. Under these circumstances any reference to the efficacy of voluntary arbitration appears to me to be farcical. It is for those men who will not agree to fair conditions, and who will not abide by the bonds into which they enter that legislation of this character is necessary. The rough experience of the world shows that it is the unscrupulous - those who will not be bound by honorable obligations, who have no respect for their fellow citizens,' and no regard for the feelings of the poor - to whom we have to apply compulsion. Therefore, I am amazed that any one can seriously suggest, that voluntary arbitration is sufficient to meet the necessities of the' case. Honorable members who are more closely acquainted than I am with these matters could cite many instances in support of mv view. My experience as a member of the Anti-Sweating League of Victoria showed that even in cases where compulsion was exerted,- under the operation Of the Factories Act, in connexion with the regulation of the rates of wages and hours of labour, the results were advantageous to the employers as well as to the work-people. Prior to the introduction of that Act, a number of men who had been thrifty, and who had saved a small amount" of money, had been enabled to enter into business. In order' to establish themselves firmly they, in many cases, adopted methods to which they would not have submitted as employes. Scores of these men found themselves unable to comply with the conditions imposed by the Factories Act, and had to resume their positions as employes. This was particularly the case in the baking trade. Many men who had been excellent workmen or capable foremen had saved money sufficient to enable them to enter into business. It was only by working for far less return than they would have received as employes that they were enabled to carry on. And as they, were not able to comply with the Factories Act they had to resume their positions as workmen. In many cases this proved of advantage to the individuals immediately concerned, and conferred benefit upon the trade generally, by removing unfair competition. I believe that equally good results will be brought about by the application of the compulsory principle under the Bill now before us. On a previous occasion I voted in favour of bringing States public servants within- the provisions of the measure. I acted then under the belief that there was no constitutional obstacle, and under the impression that in New South Wales and in New Zealand public servants had been brought within the scope of State legislation dealing withconciliation and arbitration, and that these Acts had given satisfaction. It is true that in New South Wales the railway servants are brought under the Arbitration Act, and that in New Zealand they are also included within the scope of similar legislation. I have discovered, however, that the position of affairs is not quite as I understood. I was under the impression that, in New Zealand, civil servants were placed in exactly the same position as persons in outside employment, but, upon looking through the debates which took place upon the Bill in the New Zealand Legislature, and at the Act itself, I find that that impression was incorrect. The New Zealand Conciliation and Arbitration Bill, as submitted to the House of Representatives there, embraced all classes of employes. Mr. Pearce, a member of the House of Representatives, proposed to exclude civil servants, and upon that being carried, Mr. Seddon, the Premier, moved that the amendment should not apply to those engaged in the Post-office and Railway departments. That had the effect of bringing within the scope of the measure all the State employes in those Departments and excluding all others. At a later stage it was found necessary to hold a conference between the two Houses, and eventually both Mr. Pearce's proposal and that of the Premier were abandoned. The Act now contains clauses which deal specially with railway servants. These are known as the railway clauses, and an examination of them shows that they do not place the railway servants of New Zealand upon the same footing as those who are employed outside. It is provided that, in making its award, regard shall be had by the Court to the schedule of the Civil Service Act of 1896. I referred to Stroud's Judicial Dictionary, in order to find out the meaning of that reference to a schedule in an Act of Parliament. At page 1693 of the second edition, it is stated that -

This phrase limits discretion to the amounts of allowance prescribed by the scale ; but there is full discretion to act within the scale.

I take that to mean that the Arbitration Court cannot increase the pay of railway servants in excess of the rates provided 'for in the schedule of the Civil Service Act. Provided, however, they keep within the four corners of that schedule, they have the right to increase the rates. I take it for granted that if a man were receiving the minimum rate prescribed by the schedule, the Court would have the right to increase his pay to the maximum rate therein provided. Of course, if I am wrong, the Arbitration Court has even less power than I have indicated. In any case, the Court must have regard to the schedule, and, consequently, has a restricted power in regard to railway servants. Assuming that the Arbitration Court decided, while keeping within the four corners of the scale provided for in the schedule, to raise the rate, of pay previously given, they would naturally interfere with the Appropriation Act for the year. I am at a loss to understand how the New Zealand Government would view such a decision, or what they would do. I have not been able to discover whether any award has yet been given. I know that unions of railway employes and the Railway Commissioners may be registered under the Act, and that disputes may be referred ' to the

Arbitration Court, but whether the provisions of the Act have been availed of, I do not know. I should like to know what would happen in the event of the rates of pay being increased beyond the amount provided for in the Appropriation Act for the year ?


Mr Fisher - Does the honorable member suppose that a Government would act contrary to the decision of its own Courts ?


Mr HUME COOK (BOURKE, VICTORIA) - . 1 should hope not. I take it that any Government would be bound to respect the decision of a Court practically created by itself.


Mr Spence - Such a Court would not be likely to give an unreasonable decision.


Mr HUME COOK (BOURKE, VICTORIA) - I do not suppose it would. My own view is that Governments, like individuals, are disposed to respect decisions of the Courts they create. At the same time, it would aid us greatly if we knew that a decision had been given by the Court which would render an increased appropriation necessary ; and that such decision had been respected by the New Zealand Government. I have also sought information with respect to the condition of affairs in New South Wales. There the Railway Commissioners and their servants can be registered under the Act, and disputes can be referred to the Arbitration Court. I was unable to ascertain whether any dispute had been brought before the Cour.t,and eventually I wrote to the Honorable B. R. Wise, the Acting Premier of New South Wales, who is the father of the Arbitration Act, and a strong supporter of its principles. I believe that he was responsible for bringing railway servants within the scope of the Act.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I think that that was brought about by means of an amendment proposed by some one else.


Mr HUME COOK (BOURKE, VICTORIA) - I would not be positive upon that point, but I know that he supports the application of the Act to the railway servants. I wrote to him, as the most competent authority to give me information, and asked if any disputes between the railway servants and the Commissioners had been referred to the Court, and if so, with what result? Further, I inquired whether, if there had been a dispute, he would favour me with his opinion as to what could or would be done in such a case as I have just stated, namely ' one in which the amount provided for in the Appropriation Act for the year would have to be supplemented owing to the award of the Court. I also desired him to inform me what could be done or might be done if the Government refused to recognise an award which would have the effect of increasing the appropriation? These, in brief, were the questions which I put to him, and his reply, which is dated Sydney, 6th April, 1904, reads . as follows : -

In reply to your note of the 30th ult., respecting State Railway Servants and our Industrial Arbitration Act, I see no reason to doubt the legality of any award made by the Court of Arbitration, granting higher pay than that provided by Parliament, but as the Commissioners under the Government Railways Act are to " pay such salaries, wages, and allowances to officers as Parliament appropriates for that purpose," I think that any award must be subject to such appropriation. The Government and the Railway Commissioners would doubtless do what was necessary towards submitting to Parliament any amounts awarded by the Court, and towards paying such amounts when voted, but if Parliament refused to vote the amounts awarded, and the Commissioners consequently could not pay, I do not see how the award could be enforced against them.

The New South Wales Government Tramway Employes' Union, Industrial Union of Employes, has filed a case against the Railway Commissioners demanding higher wages than those at present paid, and improved conditions. The Commissioners dispute the claims, but the matter had not yet been heard by the Court.

Those answers show that, in the opinion of Mr. Wise, whilst there is legal power to Obtain an award from the Court there is' no power of enforcing such an award if the State refused to recognise it. In my judgment, the States would be in honour bound to respect the decisions of the Court. I am, however, quoting not my own view, but that of an eminent legal authority, who is well known to be an ardent sympathizer with the principle of compulsory arbitration. In effect, he declares that, whilst it would be quite within the province of the Court to make an award which would have the effect of increasing the amount of an Appropriation Act, he does not see how that award could be enforced if Parliament refused to recognise it.


Mr Fisher - Nor could any other award if Parliament refused to recognise it.


Mr Deakin - If the States would not refuse to recognise the award of a State Arbitration Court how . much more likely would they be to respect the opinion of a Federal Court?


Mr HUME COOK (BOURKE, VICTORIA) - I am merely endeavouring to give honorable members the benefit of the information which I have received. In view of. the fact that Mr. Wise is an ardent sympathizer with this Court, and a man who has done a very great deal towards bringing about industrial peace in the senior State of the Commonwealth, it is interesting to have his opinion expressed in this terse way upon a question that is of very great moment to this Parliament. If that opinion be correct, it shows very clearly that it is idle for us to proceed if the States Governments do not intend to recognise the decisions of the Arbitration Court. Personally, I see no constitutional reason why we should not bring the public servants of the States within the scope of this measure. I am still as strongly in favour of making the Bill applicable to them as I previously was, though I have to admit that my opinions on' the subject have been a good deal shaken by the two circumstances which I have just narrated, namely, the special provisions which are contained in the New Zealand Act, and the very strong opinion which has' been expressed by Mr. Wise. But, though I favour bringing the State public servants under the operation of this Bill, I feel bound to say that the industrial community, and more particularly the workers, are expecting too much from this legislation. I have already declared that in my opinion the working classes will lose more than they think by the passage of a measure of this character.; I believe that the employers generally have more to gain from it than have their employes. Yet is is singular that the greatest opposition to the Bill emanates from the employers. Indeed, what strengthens me in my support of the measure is the fact that those who, like the honorable member for Wannon, are entirely opposed to industrial arbitration, are those who principally oppose its application to the public servants of the States. All that they would support is some useless Bill embodying the voluntary system of arbitration, such as is advocated by the honorable and learned member for Angas. When I was before my constituents I expressed the same views that I am voicing now. I declared that I saw no constitutional reason why the. States public servants should not be brought within the scope of this measure. But I also took occasion to point out that I would prefer to lose that partiular provision rather than sacrifice the whole Bill. In order to retain the Government in power - not because of any special circumstances attaching to the individual members of the Ministry, but because it is most undesirable at the present time to effect a change of

Government - I would prefer to forego that proposal. I would rather do that than lose both the Bill and the Government. It has been asserted in the press, and especially in the conservative journal of this city, that my vote was purchased by the Government offering me the position to which I have been appointed.


Mr Tudor - Which is the conservative journal ?


Mr HUME COOK (BOURKE, VICTORIA) - The Argus.


Mr Tudor - I thought they were both conservative.


Mr HUME COOK (BOURKE, VICTORIA) - It has been said that my vote was bought by my acceptance of the* position of Government Whip. I desire to say that that statement has no foundation whatever in fact, because long before I accepted the appointment I told my constituents exactly the course which I intended to take. Had I felt free to saythat I would have voted for the inclusion of State servants in any circumstances, my majority would probably have been very much larger than it proved. Scores of electors voted against me because they believed that the Government would make this question a test one, and because they felt that if that were done I would vote with the Government. But altogether irrespective of what may be the fate of the Ministry upon this measure, and of what party may lead in this House, i sincerely trust that we shall secure an Arbitration Act of some sort. I feel strongly that the progress and prosperity of Australia is wrapped up in that industrial peace which she needs for the conduct of her business. If we secure an Arbitration Act I believe that we shall for ever get rid of the disastrous strikes and locks-out which have in times past disgraced our industrial affairs. Industrial peace will do more to attract capital to this country, and to set the wheels of progress in motion, than will anything of which I know. Believing that, I am a strong supporter of the Bill, and whatever may befall the Ministry, I hops that we shall secure an Arbitration Act for Australia, and in so doing obtain that industrial peace and progress which will follow in its train.







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