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Wednesday, 15 June 1904


Mr GLYNN (Angas) - I have an amendment to propose before that. This clause raises the whole question of the common rule.


Mr Deakin - We will take the Prime Minister's amendment first.


Mr Watson - Without my amendment it does not raise the question.


Mr GLYNN - I have no wish to interfere with what I consider to be the necessary structure of the Bill. I wish to make a departure in principle, but I do not desire at the same time to sacrifice other parts of the measure which may be essential to its proper working. I think that in this clause the retention of the words " organizations and persons" may be necessary. If honorable members will look at the paragraphs they will find that an award is declared to be binding, under paragraph a, upon all parties represented; then, under paragraph b, upon all parties who have an opportunity of being represented, and do not turn up. That is right enough; but we find that under paragraph c an award is to be binding upon - all organizations and persons on whom it is declared by the Court to be binding.


Mr Watson - The Court, or some authority, must say which of the parties represented are to be bound by an award, even though it is not made a common rule.


Mr GLYNN - I am aware of that; but I think that in paragraph c it is proposed to go beyond reasonable limits, In declar-( ing that all organizations are to be bound we go further than is necessary, because we bind all organizations, whether they are parties to the dispute or not, no matter in what part of Australia they are. and no matter how far from the centre of dispute, and also all persons, no matter how alien to the dispute. I wish to amend paragraph c so that it shall apply to all organizations who ought to be bound by an award, and to parties to the dispute.


Mr Deakin - Then the honorable and learned member does not propose to move the amendment of which he has given notice ?


Mr GLYNN - I do not desire to interfere with the clause any more than is necessary to affirm my principle. I can see that the Government will ask for the retention of some words necessary to bind organizations, the members of which, we all admit, should be bound, and should come within the scope of the award. In lieu, therefore, of my proposal to strike out the whole of paragraph c, I propose to move that after the word "organizations" the words "in respect to which," and then after the word " persons " to insert the words " in respect to whom the industrial dispute has arisen." The paragraph would then read -

(c)   all organizations in respect .to which, and persons in respect to whom the industrial dispute has arisen.

If I move first of all the insertion of the words " in respect to which " after the word " organizations," that amendment can be taken as a test. I know it is very difficult, on the spur of the moment, to draft an amendment which will cover exactly what one desires to affirm. I wish to affirm the principle first, and if necessary, afterwards, the clause may be put into any shape which the Government may think necessary to carry out the principle.


Mr Higgins - The honorable and learned member desires that the award shall affect the original parties only?


Mr GLYNN - Yes; I desire that the award shall affect the organization, and all persons in the employment - as well as the members of the organization whether employers or employes, all other persons in respect to whom the dispute has actually arisen.


Mr Higgins - Looking for the moment at the other side, the honorable and learned member desires to prevent any award ever applying to people other than the original parties ?


Mr GLYNN - Yes: that would be the effect of my proposed amendment ; but I would not use the word " parties." I wish to limit the application of the award to the members of the organization and to persons in the same employment as the members of the organization. So that if a dispute arose, for instance, at Broken Hill, and an award were made, it should be binding upon the organization at Broken Hill, and upon all employes in the same mine.


Mr Groom - Employes throughout Australia?


Mr GLYNN - No, I do not desire that. This Bill gives the Court power to bind every one in the same industry. As was shown by several honorable members yesterday - the good sense of whose remarks I* recognise by limiting the amendment I had intended to move - a very wide field is covered by the word " industry," and . people would under the clause be bound throughout Australia, if engaged in the same industry.


Mr Groom - The award must extend to two States.


Mr GLYNN - No doubt, that is the very basis of the whole Bill. That shows the limitation of the Bill itself, and it shows that our jurisdiction by this Bill is limited. Surely we are not going to allow the Court to bind persons engaged in a particular industry throughout the length and breadth of Australia although they may have no connexion whatever with the particular manufactory in which a dispute has arisen. It is a very big question if a dispute arising in New South Wales is to result in the : fixing of an award applicable to a particular industry throughout Australia. It is a tremendous thing to say that in that dispute the Court should decide what are to be uniform rates of wages and hours of labour throughout Australia. But that is what the Bill provides, subject to an amendment of which the Government has given notice,, to the effect that persons outside the dispute - not outside the organization affected - are not to be bound unless they have been summoned to appear.


Mr Watson - What I suggested was that we should give those whom it was proposed to bring under the common rule ample notice.


Mr GLYNN - That is the same thing as I have stated.


Mr Watson - But I prefer to have my express language used.


Mr GLYNN - I do not care a fig about the language, so long as I get the result. The position is this : The Government wish to impose a limitation upon the application of the common rule, so as not to compel a person to be bound by it unless he has been notified. We find that in New South Wales there is a congestion of business in the Arbitration Court. Recent references made by some of the Judges indicate that the Courts are congested. Mr. Justice Cohen said that the Court was about fifteen months in arrears with its work. If the limitation proposed by the Government is put in, opportunities will be given to outsiders to come in. and we shall multiply by seven or eight the number of disputes that will come before the Court. It will be much fairer at the beginning to confine the operations of the Court as regards wages to the employers or manufacturers in respect of whom the dispute has arisen. The case of the Sugar Refining Company has already been mentioned. I believe that the facts are as I have given them - that about 3,000 persons would have been bound by an award obtained on the initiative of about 100 persons. To make a decision of that sort a common rule, operative so as to bring about uniform wages and hours of employment throughout Australia, would be a great mistake. It would be almost guaranteeing the failure, through its excessive character, of this measure from its very inception. I would ask honorable members who are inclined to take a moderate view of this matter, to come to a fair compromise at the beginning. We shall see how this Bill operates in regard to particular employments, and if it proves fairly successful', we can extend its scope. Already the honorable member for Melbourne Ports has given notice of a motion in favour of an amendment of the Constitution, so as to extend the powers of the Commonwealth with respect to industrial legislation. We may, therefore, by other means, if the people of Australia recognise that it should be done, bring about uniform rates of wages and hours of labour throughout Australia.


Mr Carpenter - Not uniform rates of wages throughout Australia.


Mr GLYNN - Uniform legislation really means everything of that kind. Factory legislation in "Victoria prescribes the rates for piece work, and rates of wages by the week and by the day, and also the number of hours to be worked. In an application of legislation of that kind to the Federation, the same results may follow. I am not attempting to forejudge upon that point. It may be the correct method of applying the principle which is contained in this Bill, to make the conditions of employment uniform throughout Australia. But before we do that we should get the authority of the electors of Australia on the point, expressed in a' constitutional way, by the Federal Parliament passing the necessary amendment of the Constitution, and permitting the people to speak through their constitutional methods -through the States as States, and through the people of the Commonwealth as a people. That is the prescribed method of amending the Constitution. But before that is done we really should not by what seems to be a subterfuge, endeavour to bring about uniform rates of wages, and conditions of employment throughout the length and breadth of Australia, or delegate that power to a tribunal which we establish. Because that is what it amounts to. We are not framing a law under which we as a Parliament prescribe the conditions and limitations of uniform employment throughout Australia, but we are asking the Court to take an authority which we may possess. That is worse than would be the exercise of parliamentary power to bring about a uniform law ; because we could impose some limitation on the uniform conditions. But when we leave it to a Court, we leave it to the if st dixit of a Judge with two laymen to determine under what conditions the uniform legislation is to be applied. What I ask honorable members to do is to proceed on safe and moderate lines, and to confine within reasonable limits the scope of the common rule. Then, if it is necessary afterwards to extend it, we can do so.


Mr Watson - I understand the honorable and learned member to be -speaking against the common rule altogether.


Mr GLYNN - I have no objection to it with some limitations. There may be something to be said for a partial common rule. There may, of course, be difficulties in confining particular rates of wages to particular factories. That is an inconvenience that has been experienced in New Zealand, where they have sought to get over it by means of a provision applying the common rule to districts. Here we are not only going to apply it to districts or to a State ; we are going to allow the Court to apply it right through the -length and breadth of the Continent. Surely that is an authority that we should not delegate to a tribunal, however great may be our anticipation of the judgment and the wisdom which it will exercise.


Mr Johnson - The honorable and learned member believes that we should prescribe the area within which the common rule should apply ?


Mr GLYNN - Yes. I do not wish to thrash the matter out at this stage. I have said enough to indicate the principle for which I am arguing. In order to test it I move -

That after the word "organizations," line 11, the words "in respect to which" be inserted.


Mr Watson - What amendment does the honorable and learned member propose to move afterwards ?


Mr GLYNN - I propose to insert after the word " persons," the words " in respect to whom the industrial dispute has arisen."


Mr WATSON - The honorable and learned member for Angas, in answer to a question by myself, intimated that he has no objection to a common rule within certain prescribed limits. But the proposal which the honorable and learned member intends shall follow the amendment immediately before the Chair, would prevent any common rule being operative, seeing that it restricts the power of the Court, in the making of an award, to the organizations or persons in respect of whom the industrial dispute arises.


Mr Glynn - The present amendment is a preliminary to an extension beyond the organizations.


Mr WATSON - I do not see that there is any extension. The honorable and learned member ' practically says that the only persons to whom the award can apply are the original parties to the dispute. This measure will be practically valueless without a common rule. That has been the experience under similar legislation in New Zealand, New South Wales, and Western Australia. Wherever a compulsory Arbitration Act has been in operation it has been found impracticable without a common rule; and, further, I contend that not to provide for a common rule would be absolutely unfair to many classes of employers. A number of employes, who are dissatisfied with the wages paid by a certain employer, may take a case before the Court and obtain an award in their favour, while the employes of another employer, who insists on lower wages, longer hours, and generally worse conditions, may, for a thousand diverse reasons, be satisfied with their lot. Under such circumstances, a fair employer is unable to compete with an employer who pays, it may be, sweating wages.


Mr Ewing - Or it means another case for the Court.


Mr WATSON - Or it means another case, with all the attendant consequences. New Zealand, for the purposes of the Conciliation and Arbitration Act. is divided into four industrial districts. In one case the New Zealand Court arrived at a decision which was perfectly satisfactory to employers in three parts of the Colony; all fair employers were willing to conform to the award. But the employes in the fourth industrial district were content to receive a lower rate of wages, and the Court found itself impotent. The unfair competition was allowed to go, until the Act was amended, without let or hindrance, because the employes in this particular district were satisfied with conditions that were unfair in respect of competitive work in the market. From the point of view of the employer alone it is desirable that, after making allowance for climatic differences, general cost of living, and conditions of that character, the Court should, as far as practicable, subject all competitors to exactly the same conditions.

An Honorable Member. - The same conditions may riot prevail in different States.


Mr WATSON - I have just said that the Court must have power to make all allowance for altered or differing conditions.


Mr Conroy - But a person not brought before the Court may not know of the award.


Mr WATSON - I was going to inform, honorable members last evening - some weeks ago I intimated through the press - that the Government were taking steps tot insure that before a common rule could be extended notice must be published, and opportunity given to every person likely to be made a party, to make objection and lay his case before the Court.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - If that intimation was given to the press some weeks ago, does the Prime Minister not think that honorable members should have had the proposed amendment before them ?


Mr WATSON - I thought the honorable member was here last night when I ex-' plained why the proposed amendment had not been placed on the business-paper. The explanation is that the Government had not at that period drafted the amendment, and, further, that it did not seem to them to be more than a detail, seeing that the Attorney-General had some doubt whether the present provision in the Bill was not sufficient to insure that proper notice waspublished.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - But the Prime Minister is taking credit for making the intimation some weeks ago.


Mr WATSON - As it happens, I did make the intimation to the public press then.


Mr Conroy - But if the amendment had not been formulated, how could there be an intimation ?


Mr WATSON - That may appeal to the subtle legal mind of the honorable and learned member, but I do not think it matters very much. What I said was that I then indicated that the Government were prepared, if necessary, to provide that no person should be brought under a common rule without having an opportunity to lodge an objection.


Mr Deakin - No person?


Mr WATSON - No person or organization.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Is the suggested amendment available now?


Mr WATSON - I can give the Committee the terms of the proposed amendment, which is intended to follow subclause /, of clause 46. It is rather lengthy, but I shall have it printed this afternoon.


Mr Deakin - In view of that proposal, it is a pity to have a debate on the question at the present stage.


Mr WATSON - I am very sorry that the honorable and learned member for Angas has caused the debate at this particular stage. Personally, I should have preferred to wait until we reached paragraph / or paragraph 0 of clause 46, when we could have discussed the substantative question of the common rule.


Mr Glynn - We can test the question now.


Mr WATSON - That is so ; but I have had this amendment prepared so that it may be circulated before we reach the point at which the question will arise. it is proposed to add to paragraph / of clause 46 the following words : -

Provided that before any common rule is so declared, the President shall, by notification in the Gazette, specifying the industry and the industrial matter in relation to which it is proposed to declare a common rule, make known that all persons and organizations interested and desirous of being heard may, on or before a day named, appear or be represented before the Court ; and the Court shall, in manner prescribed, hear all such persons and organizations so appearing or represented.

An Honorable Member. - There will be a nice job getting witnesses from Western Australia !


Mr WATSON - The Court will probably make arrangements, before extending a common rule to Western Australia or other distant parts, to visit the places if necessary.


Mr Groom - Or have evidence taken on commission.


Mr WATSON - There are various ways of meeting the circumstances. In relation to the general tenor of the argument of the honorable and learned member for Angas, honorable members will see that, by sub-clause / of clause 46, the Court has power - to declare by any award, that any practice, regulation, rule, custom, term of agreement, condition of employment, dr dealing whatsoever in relation to any industrial matter shall be a common rule of any industry affected by the award.

But that provision is safeguarded, as desired by the honorable member for Wentworth and others. Sub-clause g, of the same clause, provides that the Court shall have power - to direct within what limits of area - that will meet the case of Western Australia and other parts of the Commonwealth - if any, and subject to what conditions and exceptions, the common rule so declared shall be binding upon the persons engaged in the industry whether as employers or employes, and whether members of an organization or not, and to fix penalties for any breach or i.on-observance of the common rule so declared, and to specify the organizations or persons to whom they shall be paid.

The effect of that paragraph, which is a complement to paragraph /, is to give the Court absolute freedom to vary its award, in order to suit local conditions. If, for instance, it is an award which should become a common rule generally, the Court will take into consideration all the local conditions, and make such alterations as may appear to be necessary. Surely, with that provision, we cannot contemplate that it would be likely for a moment to insist upon the same conditions on the Coolgardie goldfields as in the ordinary settled parts of New South Wales and Victoria.


Mr Hughes - They are not the same now.


Mr WATSON - No, nor would they be made the same.


Mr Hughes - They could not be made the same.


Mr WATSON - Exactly. No Court would attempt to make the conditions the same. We must assume that the Court will exercise ordinary common sense in the administration of the Act. It does not seem, therefore, that any danger of that sort is likely to be run. The main point I desire to direct attention to is that wherever compulsory arbitration has been tried, it has been found imperative, in order to protect the fair employer, to insure that his' unfair competitor must come under the operation of a common rule, even if the employes of tha latter are acquiescing in the form of competition which is being engaged in.


Mr Mcwilliams - There has never been such an extended area before.


Mr WATSON - I admit that. Perhaps we should make more certain, as has been done in some of the States laws, that the Court shall have proper opportunities of suiting the award to the local conditions in each case, and that is where it seems to me the argument as to the greater area really comes in. I feel that we are doing that when we require the Court to give notice to the other party before an award is made a common rule, so that he shall have an opportunity of coming in and proving his case, perhaps to the full extent of not being included in the common rule. In that regard we are taking precautions which, so far, have not been taken- in any State law. In New South Wales the Court, by rule, has practically done this; because, I understand from my honorable and learned colleague, the Minister of. External Affairs, that the Court has decided that it will not extend the award to a common rule unless the parties have been notified that it is proposed that they should be brought under its operation. On the contrary, we propose to provide in the law itself, that notice shall be given, and so avoid any possibility of the Court overlooking that which, in our view, appears to be imperative from the stand-point of equity.


Mr McCay - The provisions as to the common rule in the New Zealand Act are much more limited than these.


Mr WATSON - Yes, because they were, until lately, confined to industrial districts. The present movement is certainly towards abolishing the distinctions which are laid down by the division of the Colony into industrial districts. It has been found that it hampers very largely the effective work which can be accomplished by the Court. I do not feel that we are bound to follow exactly the particular lines of' their legislation, especially in a Federal law.


Mr Carpenter - We have industrial districts in Western Australia.


Mr WATSON - I was not aware of that. I trust that the Committee will not emasculate the Bill by carrying this amendment, because, to confine, as the honorable member for Angas proposes, the operation of an award to those who were parties to the dispute when it arose, seems to me, to begin with, to involve a greater amount of litigation than might take place under the common rule provisions. That alone, I am afraid, might lead to an enormous congestion of the business of the Court, if any disputes came up.


Mr Glynn - Of course, this Bill is really intended to settle Inter-State disputes.


Mr WATSON - Assuming that that is so, the fact that the disputes are of such large importance points more to the necessity of having a common rule, just to prevent their recurrence.


Mr Glynn - The scope of the States Acts is different; there are Factories Acts, as well as Arbitration Acts.


Mr WATSON - In New South Wales the Factories Act, valuable as it is, is of quite a different character from the Arbitration Act. Therefore, it is not correct to say that the Arbitration Act of that State partakes of the character of a Factories Act.


Mr Glynn - -But in effect they are the same.


Mr WATSON - It is true that they both take cognisance of the question of hours of employment; but as the honorable and learned member knows, working hours have frequently been the cause of strikes, and therefore are a proper subject for an Arbitration Court to deal with.







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