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Thursday, 16 June 1904


Mr LONSDALE (New England) - I protest against the proposal to allow the Court to exercise unrestricted power in regard to inflicting penalties. That would be a departure from our ordinary practice. If we were dealing with some awful crime, I could understand the proposal. The evident intention is to make a criminal of any man who puts his capital into business, encourages production, and affords employment. I am not a capitalist, nor shall T ever probably be in a position to employ capital in the .direction .1 have indicated'; but I think that it is to the interests of the community that the fullest encouragement should be given to investments in industrial enterprises. Whilst, no doubt, it is necessary to protect workmen from being sweated or injured by grasping capitalists, it must not be forgotten that many employers treat their men fairly. The advocate's of this class of legislation apparently regard all employers as' bad men who are seeking to injure their employes. No doubt there are, on both sides, men who seek to injure their industrial opponents. The best thing we oan do is to endeavour to bring the parties together amicably, instead of inducing them to entrench themselves in fortified camps. If it is to be regarded as criminal for one man to employ others, and penalties are lo be imposed, we should fix a maximum. We do this even where the worst of crimes are concerned, and it- would be utterly absurd to allow the Arbitration Court a free hand. If only because we are creating new offences, I think that we should fix a maximum penalty for them.

Amendment negatived. Mr. ROBINSON (Wannon).- I moveThat after the word " organization," line 7, the words " and to specify the organizations or persons to whom such penalties shall be paid," be left out.

My object in submitting this amendment is to prevent fines which may be inflicted for any breach of an award from finding their way into the coffers of the other party to any industrial dispute. Ordinarily, fines which are imposed for breaches of the law are paid into the Consolidated Revenue Fund. The Government, however, propose to extract money from one class, and to hand it over to the political unions of another class. In short, the clause means that if any employer commits a breach of an award for which he is fined, the fine shall be paid into the funds of the local union, which usually works in conjunction with the political labour council. That is to say, the funds of the Labour Party are to be augmented at the expense of the employers. Boiled down, that is what the proposal really means. What justification is there for departing from the usual practice ? Why should not the fines inflicted be paid into the public revenue? The employers' or,ganizations will not benefit from the fines imposed, because, if a breach of an award were committed by, say, the Shearers' Union, the penalty inflicted could not be recovered.


Mr Watson - Why ? The union has funds.


Mr ROBINSON - When we come to levy on them we shall find that they are " up the spout."


Mr Watson - -The honorable and learned member has had no experience of unions, otherwise he would not make that statement.


Mr ROBINSON - There was a union in Victoria which organized a strike last year. Paragraphs appeared in the daily newspapers to the effect that that union had £70,000 at its disposal. When, however, the actual facts were disclosed, it was found that it was possessed only of about 2s. 6d., and the strikers have been regretting their action ever since. Penalties inflicted' upon industrial organizations could not possibly be enforced, and no sane body of employers would attempt to recover them. Take the case of the Shearers' Union, which numbers several thousand employes. How could a fine be inflicted upon the individual members of that organization? It is absolutely impracticable. The honorable member for Darling smiles. His self-imposed mission when the Bill becomes law, is to travel round the country working up disputes ; so that if the measure does not pass, his occupation will be gone.


Mr Watson - That is quite as respectable an occupation as is that of living upon other people's disputes.


Mr ROBINSON - That is a very con-, temptible reflection upon the Prime Minister's colleague, the Minister of External Affairs. The honorable gentleman ought to know better than to attack his own colleague. I repeat that, if the Bill becomes law, the honorable member for Darling has expressed his intention of going round the country to work up disputes. If any breach of an award be committed by an unfortunate employer he will be promptly hauled before the Court and fined, and the money thus extracted from him will be paid into the funds of the local industrial union, and used to defray the expenses' of parliamentary labour candidates. No more infamous proposition has ever been submitted to Parliament. Upon no principle of justice can it be defended. It cannot be defended upon any principle of justice, based either upon evolutionary or utilitarian grounds. It seeks to introduce into our legislation a system of revenge, whereby, if a man commits a breach of the law another man shall be able to extract money from him. These fines, I repeat, will be used largely for political purposes. In reply to a previous speaker, the Prime Minister asked, "Why should not these penalties be paid to a union, seeing that the Court has no power to award costs?" I have no objection to vesting the Court with power to award costs, though, in this connexion, it must be remembered that the

Bill prohibits the employment of counsel before that tribunal, except by consent of the parties. I shall press my amendment to a division if I can command the support of only one honorable member to act with me as teller.

Mr. HUGHES(West Sydney- Minister of External Affairs). - The honorable and learned member for Wannon has supported his amendment in a speech characterized by that moderation and decency of language which should distinguish all members of a deliberative assembly, and which particularly distinguishes my honorable friend. Honorable members will probably recollect that Mr. Dick, one of the characters drawn by a very illustrious man, the perusal of whose works affords us both amusement and recreation, was engaged for an almost interminable period - in fact, during the whole term of his lunacy - in drawing up a petition which he was unable to finish, because of his inability to avoid any reference to King Charles' head. The honorable and learned member for Wannon has made a number of speeches in this chamber, but I have never heard one in which he has contrived to avoid some allusion to the Shearers' Union. Had he done so. his utterances would have been very much more to the point, very much less monotonous, and infinitely more effective. The reason why he drags iri a reference to this King Charles' head upon every conceivable opportunity, is very clear. I appeal to honorable members opposite to view, calmly and impartially, the physiognomy of the honorable member for Darling, that filibuster and firebrand, who is accused of an intention to travel over Australia for the purpose of working up industrial disputes. I ask. is it possible to find in the Commonwealth a face which is more calculated to inspire the most distrustful person with feelings of absolute trust, or one which is more completelyopposed to the characteristics which my honorable friend suggests?


Mr Johnson - Still waters run deep.


Mr HUGHES - But they run clear and true, nevertheless. The honorable member for Darling has been described as an agitator, who proposes to travel Australia for thf: purpose of stirring up industrial disputes, although it does not appear that, under this clause, he will receive any portion of the fines which may be inflicted for breaches of awards.


Mr Robinson - He told the Committee that, if certain persons were brought under the operation of this Bill, he would soon work up a dispute.


Mr HUGHES - Is that all? No wonder my honorable and learned friend squirmed when the Prime Minister spoke of " living upon other people's disputes," because the reference hit him so hard. So far as I have been called upon to interfere in other people's disputes, I have at least made a tolerable living out of them ; but I do not know that the honorable and learned member for Wannon has been able to make a living at all. What are the facts of the case? We all know that at the last election an emissary of the Shearers' Union set the honorable and learned member for Wannon a task which he has not forgotten.


Mr Robinson - Give me a straight run, and I can wipe him out by 2,000 votes.


Mr HUGHES - That is the reason the honorable and learned member discharges his venom against the peaceful, law-abiding and admirable institution of which the hon- 01 able member for Darling is the head. Does anybody mean to say that such an organization, led by such a man, will do anything of the character suggested by the honorable and .learned member for Wannon ?


Mr Lonsdale - He strikes terror into our hearts.


Mr HUGHES - I cannot believe that the most timid female, if awakened at 2 o'clock in the morning, would feel in the slightest degree disturbed by the presence of the honorable member for Darling in her bedroom. My honorable and learned friend knows full well that at the last general election the Shearers' Union had a task set before it which unhappily it partially failed to perform - the task of sweeping him from the public life of Victoria - but he also knows that if it has another opportunity it will accomplish the work.


Mr Robinson - The Government wish to secure a little more money from some of mv supporters.


Mr HUGHES - My honorable and learned friend fears that if the members of the union obtain sufficient funds they will be able to carry out this task. He said just now that fines imposed in all cases invariably go into the coffers of the Treasury. That is not so, and he knows that it is not. There are Statutes in which it is provided that the fines, or a portion of the fines, imposed under those laws shall go into the pockets of the informer. The honorable and learned member knows that unless that course were adopted, under certain circumstances, no conviction could ever be secured. If we proposed to limit this provision to employes, there might be some ground for complaint, but employers and employes alike will be enabled to reap any benefit that may be derived from it. A similar provision is to be found in the New South Wales Conciliation and Arbitration Act, sec-t tion 37, sub-section 7, which provides that -

In any proceeding . . . the Court . . . may - fix penalties for a breach or non-observance of any term of an award, order, or direction not exceeding Five hundred pounds in the case of an industrial union, or Five pounds in the case of any individual' member of the said union, and specify the persons to whom such penalties shall be paid.

I defy my honorable and learned friend to point to one case in which that provision has been abused in the way he "suggests. Disputes have not been worked up, and money has not gone into the pockets of employer or employe as the result of it; but something else has occurred that will be of interest to the Committee. The first case which came before the New South Wales Arbitration Court was that of The Newcastle Wharf Labourers' Union v. The Newcastle and Hunter River Steam-ship Company Limited. While a dispute was pending certain employes were discharged for refusing to accept new conditions. The matter was brought before the Court, which reinstated the men. It was held that the unionists who had been discharged should be restored to their former positions, and that the non-unionists who had been engaged in their stead should be discharged. The Court directed that the " costs, fees, and expenses of and incidental to ' ' all the proceedings in the matter of the reference should be taxed and paid by the respondents, and also awarded the sum °f j£15 I5S- 10 the union. What could have been more proper? It will be impossible for costs as between solicitor and client to be granted in any case arising under this. Bill. In the case of a union having a membership of about 150 or 250 - I believe that it was the Tailors' Union - expenses amounting to something like £200 were incurred in a reference to the New South Wales Court. The award was given in favour of the union, and it was practically left without a penny at its disposal. Supposing that a breach of an award of the Commonwealth Arbitration Court took place, and that the men were forced into Court, as they were in this case, they would have to pay heavy law expenses. Having spent all their money in establishing their case, they would have absolutely nothing in the way of recompense in the absence of this provision.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - They could obtain costs.


Mr HUGHES - -They could not secure costs as between solicitor and client. In the case of The Sydney Wharf Labourers' Union v. Ranselus, in which the defendant had defied the order of the Court, an injunction was obtained. The decision was that the defendant had committed a breach of the award, and he was fined ^50, and ordered to pay certain costs. The whole of that amount was given to the Wharf Labourers' Union, and even then they were out of pocket when the amount necessary to obtain the award is taken into consideration.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - They could obtain costs.


Mr HUGHES - They could obtain what is called costs under the Act, but that by no means included the whole sum expended by them in bringing the matter .before the Court. Every honorable and learned member will recognise that this must have been so.


Mr Robinson - I should like to know where the ^£50 went.


Mr Watson - It went to members of the honorable and learned member's profession'.


Mr HUGHES - - My honorable and learned friend means to say that he would like to have been retained so that he would have known where the money went. No inspectors are appointed under the New South Wales Act, nor shall we have inspectors under this measure. Who, then, is to enforce it? Who is to see that no breaches. of the awards of the Court take place?


Mr Kelly - Do the Government propose to create a class of paid informers?


Mr Watson - That is the result of nearly every law.


Mr HUGHES - We create no one.1 This is an industrial Bill, and under it we do not usurp functions of Providence. Unless we appoint inspectors to see that the awards of the Court are observed, we must necessarily depend upon employers and employes for their enforcement. If the amount of the penalty exceeded the amount of the costs to which the successful party had been put, many reasons might certainly be advanced for refusing to grant the full amount to the successful side.


Mr Watson - The Court will exercise a discretion.


Mr HUGHES - And the New South Wales Court has always exercised its discretion.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Not always.


Mr HUGHES - Some honorable members have spoken in a way that would suggest that this provision was unknown in other arbitration measures. It has been in operation in New South Wales, and has not given rise to a class of informers, or to the enrichment of a union of either employers or employes. Surely the honorable and learned member for Wannon does not contend that it is necessary to insert in this Bill a provision that would say, in effect, to the Judge that only so much of the fine shall go to the successful party as is necessary to recoup him for his outlay? If that is the sole objection which the Committee have in view, why is not an amendment moved to that effect? But the fact is that my honorable and learned friend is opposed to any portion of the fine being allocated in this way. Although a union of employers or employes might expend £100 in the way of law costs, he would object to the penalty inflicted being handed to it by way of damages. I take it that the desire of the Committee is to prevent any person making a profit or a trade out of the system provided for in this paragraph. That, certainly. is the desire of the Government. If any suggestion can be advanced to prevent such an abuse of the provision, let it by all means be submitted. Why should the Court be distrusted so far as this matter is concerned when in many other directions we propose to intrust them with even greater functions ?


Mr Johnson - Should not a union be content with the ordinary costs?


Mr Watson - In the Newcastle and Hunter River Steamship Company's case men were robbed of their employment by the wrongful act of their employer, and they were compensated.


Mr Johnson - They received the money by way of compensation ! If we intend, that compensation shall be allowed, we ought to make our meaning clear.


Mr HUGHES - Let me make a quotation from the decision given by the Arbitration Court of New South Wales in the case of the Newcastle Wharf Labourers' Union v. the Newcastle and Hunter River Steamship Company, Limited. It bears directly on the allocation of the penalty and the reason why it was so allocated. The President in delivering judgment, said -

We further direct that, should either the claimant or respondent be guilty of a breach of our award, it shall be liable to a penalty not exceeding £100 for every breach, and that should any member of the claimant union or respondent company be guilty of a breach thereof, he shall be liable to a penalty not exceeding £$ for every breach. This award shall take operation upon and from Monday, June 2. . . . Though this decision will necessarily throw out of employment the men who have been working for the company at Newcastle and Morpeth since April 10 - a result which we cannot but regret - yet it must be remembered that meantime they have been earning wages which should have been earned by the members of the union. In any event one set of men or the other must, unfortunately, be deprived of this particular work, but, as we have pointed out, justice requires that the union men should be restored to their former position, whatever hardships may unfortunately follow.

Dealing with the costs, we are of opinion that the company should pay to the claimants the sum of 15 guineas, and costs in accordance with the scale provided in the rules. As we have already pointed out, the members of the union have incurred a heavy loss through the action of the company, and although we do not think the men were justified in refusing to work at all on March 5, yet when thereafter the real dispute arose, as to the terms and conditions on which they should be employed - and that was the real basis of the dispute, the company, in our judgment, unreasonably refused to allow the men to work under a provisional arrangement which in no way would have prejudiced its rights, and was to be subject to adjustment by the Court. The company then insisted on the legality of the attitude it has assumed, and, having failed to maintain it before us, we think it should pay these costs.

That award was in effect nothing more nor less than that which was properly due to the union of employes. It was directed that a penalty of £100 should be paid for breach of the award, and I see no just reason for refusing to allow penalties to be dealt with in this way. If a union of employers or employes were put to great expense, in obtaining justice, and incurred costs which under this measure could not be recouped, I hold that the Court would be right in determining that it should receive such portion of the fine as justice demanded. We contend for that principle, and for that alone, and we propose to leave it to the discretionary power of the Court to say what the payment shall be.

Mr. ROBINSON(Wannon).- I trust that honorable members will bear with me for a few minutes, while I deal with one or two points which the Minister of External Affairs has raised. I am exceedingly glad that the Minister is doing me the honour of listening to my remarks. On most other occasions on which I have had an opportunity to debate a question with him he has left the chamber immediately after the conclusion of his remarks, and that possibly accounts for his wide acquaintance with the speeches that I have delivered. He credited me with having, on every occasion on which I have discussed the provisions of this Bill, referred to the Shearers' Union.


Mr Hughes - Every occasion on which the honorable and learned member could do so.


Mr ROBINSON - When dealing with the amendment now before the Chair I mentioned the union, and then only by inadvertence, but on no previous occasion have I done so, and a reference to Hansard will bear out this assertion. The Minister of External Affairs is what is known as a genial " bluffer." When he has no facts he abuses the other side. He has that capacity for abuse which a Police Court practice gives, but that is a class of practice that I do not hanker after.


Mr Hughes - And cannot anchor to.


Mr ROBINSON - I am quite prepared to allow my honorable and learned friend to make his income by a Police Court practice, but I prefer to make mine by a means which, to my mind, is somewhat more cleanly. The Minister attacked me for making some reference to the member for Darling. I am sure the honorable member will acquit me of a desire to say anything personally offensive to him. I wish to lay stress, upon the statement he made when we were discussing the amendment by which it was proposed to include domestic servants. The honorable member said that if domestic servants were brought under the operation of the Bill he would soon work up a dispute. He appeared to regard it as praiseworthy to work up a dispute. I do not so regard it. On the contrary, I believe that a man who works up disputes is deserving of censure.


Mr Watson - It all depends whether an injustice is being done.


Mr ROBINSON - I have been told that my opposition to the clause is due to my opposition to the Shearers' Union. It is a fact that a gentleman who was nominated by the Shearers' Union ran as a candidate against me at the last election. It is also a fact that a third candidate came forward. My honorable friends opposite are not in ignorance of the fact that the third candidate's meetings were attended by supporters of the Labour Party. They went to his meetings up to the day before the nomination, and cheered him to the echo, so that paragraphs appeared in the newspapers describing the magnificent meetings he had. But when they had got the unfortunate man landed with his nomination paper and his money in the hands of the Returning Officer, they turned again and rent him. Notwithstanding their tactics, and their boast that they had got me this time, because they had got a third man cutting into my votes, I managed to beat their man very handsomely. All I ask at their hands at the next election is a fair field and no favour, and if the electors of Wannon should return a labour man then, I must be mistaken as to their political views. We are told that fines do not always go to the Treasury, and that they sometimes go to informers. That is just what I desire to prevent. I wish to prevent the creation of a class of spies and informers, men who hang round back doors and endeavour, by spying, to secure a conviction for a breach of the law, that they may partake in the fine imposed. In the. history of all ages there has been admittedly no more contemptible profession than that of the informer. My honorable friends opposite wish to put the imprimatur of the Labour Government upon it. I think it is a most dishonorable profession, and the more it is checked the better. A great many convictions have been secured under the Victorian Factories Act without the intervention of informers. *


Mr Watson - - By inspectors. Let the honorable and learned member be fair.


Mr ROBINSON - I admit that there are inspectors under the Act.


Mr Tudor - Would the honorable and learned member agree to the appointment of inspectors under this Bill ?


Mr ROBINSON - I should have no objection to the appointment of a reasonable number of inspectors under this Bill, and I should much prefer them to the spies and emissaries of certain organizations who maybe going around spying into the way in which a man conducts his business. That is what honorable members opposite desire. They would much rather not have inspectors. They would prefer to have the emissaries of organizations going round to secure convictions, that half the fines imposed might go to the funds of the unions. We know that, in one case, where a fine of £50 was imposed, there were costs amounting to £65 to cover expenses. It appears 10 me that a sum of £65 for costs in a case of this kind is utterly outrageous. I do not know who the counsel for the fortunate union was, though I may have my suspicions on the point; but he must have had a very good time. If the informers got £50 distributed amongst them, they also must have done very well out of the business. Honorable members opposite propose, under this Bill, that there shall be no legal costs whatever in these cases. They propose to prevent any solicitor or practitioner appearing before the Court without the consent of both parties to a dispute. So that the claim which has been made with respect to the expenses arising out of these cases is, on their part, a bogus claim. When lawyers are prohibited from appearing in these cases there will be no legal costs.


Mr Watson - It is not proposed that lawyers shall be prohibited from appearing if both parties are agreeable to their employment.


Mr ROBINSON - The honorable gentleman has given notice of an amendment intended to shut out counsel from these cases unless with the consent of both parties, and that means that it is their intention to shut them out altogether.


Mr Watson - Not at all.


Mr ROBINSON - If that is not their object, why is such an amendment brought forward at all ? I can speak for myself, and, I believe, for a number of those who are associated with me in this matter, when I say that I do not think there will be any objection to a clause being inserted giving the Court power to award reasonable costs to any person who can prove that an organization or employer has broken an award of the Court. If a man goes to expense to prove that some other person has committed a breach of the law, he should be allowed his reasonable expenses in proving that a breach has taken place.


Mr Hughes - That is all we ask.


Mr ROBINSON - But I do object to this provision whereby the funds of certain organizations are to be built up at the expense of those on the other side. I think that is a monstrous proposition.


Mr Hughes - Why does not the honorable and learned member suggest an amendment ?


Mr ROBINSON - If the Government will accept my amendment, and omit these words, they can insert a provision to bring about what I desire; but the result I desire cannot be achieved unless my first amendment is agreed to. We are being continually told to trust the Court, and this has been repeated so frequently that I am reminded of the legend put up in a shop in the western district, "Trust in God; all others cash." We are asked to take this Court too much on trust. I think the Committee should strike out the provision which will permit organizations to build up their funds out of fines and costs imposed by the Court, and we should insert some provision to give reasonable costs to any person who takes steps to bring a breach of an agreement before the Court.

Mr. SPENCE(Darling). - I desire, on behalf of a highly respectable body of people in the Commonwealth, the employers, to enter my emphatic protest against' the unfair aspersions cast on them by the honorable and learned member for Wannon. I think it is most unfair that he should not only insinuate, but should say straight out in two speeches that they intend to be chronic law-breakers, to such an extent that the penalties which will be imposed upon them will be sufficient to enable another class in the community to run all the labour candidates required for Parliament. That is the statement the honorable and learned member has made, and on behalf of the Employers' Union, representing a most respectable and intelligent class of people, I desire to enter my protest. I think it is most unfair that the honorable and learned member should assume that a class of people who have hitherto always been known as the " law and order party " will, under this Bill, be turned into chronic lawbreakers, and will need to be punished so frequently by fines that in future the members of the labour unions will not be required to make contributions to the funds of their organizations, seeing that a sufficient sum will be handed over to them by a friendly Judge of the Arbitration Court to enable them to carry on their work without any necessity for a levy upon their members. The honorable and learned member has not had one word to say about the likelihood of employes breaking an award'.

I arn very glad that he has so high an opinion of that class, but as one who at all times stands up for fair play, no matter what class is concerned, I do protest against the assumption that breaches of this arbitration law will be confined to one class in the community. If it is admitted that the offences by either class will be about equal, and the honorable and learned member for Wannon might be justified in admitting that such a thing is possible, he will see that the Employers' Federation will have as much to spend politically as the other side-


Mr Robinson - It will be harder for them to recover.


Mr Watson - They will have nothing to spend on the return of the honorable and learned member at the next election.


Mr SPENCE - No, after the statement which the honorable and learned member has made, I can see that we are going to win Wannon with our Shearers' Union man next time, because the members of the Employers' Federation, just as the members of other organizations, like a man who will always stand up for them. Humanity, in the average, is very much alike, and it is just possible that there may be some breaches of agreements by employes. If they occur anything like as frequently as those by employers, that political institution, known as the "Employers' Union," will have as much to spend politically as will the Other side. If the objection which the honorable and learned member for Wannon has urged is the only one which can be urged to this clause there is not a very great deal in it. Circumstances occur in connexion with some cases which would justify a provision for securing compensation. It is quite possible that a body of employes may put an employer to some considerable loss before he could get the Court to deal with his case, and compel them to carry out their agreement. In such a case, who could object to the penalty imposed going by the way of compensation to the person who has been involved in the expense?


Mr Kelly - Does the honorable member propose that a new clause should be inserted providing for compensation?


Mr SPENCE - I am not proposing anything, I am asking honorable members to support the clause as it stands. I see an objection to the use of the word " compensation," because the sum awarded might not always be compensation. I think it will be safer to leave the clause as it stands. I do not see any reason to believe that the Court in this matter would act unfairly or injudiciously. I am opposed to legal gentlemen conducting cases before the Court, unless with the consent of both parties, who would, in such a case, take upon themselves responsibility for the payment of costs. But where there are breaches of awards, it is. certain that loss will be entailed upon one side or another, and unless we make provision for some kind of compensation, which would mean the passing of a number of new clauses to meet that difficulty, it is better that the matter should be dealt with as proposed by this clause. I do not see why, under this clause, the Court might not order that fines imposed should go to the public revenue, and not to either party to a dispute.


Mr Deakin - The Prime Minister proposes to move an amendment making that clear


Mr SPENCE - I shall be satisfied if that is done. I do not desire that these fines should benefit any particular body of labour unions; but, I think, freedom should be left to the Court to do some measure of justice. It is better to- leave to the Court to order that the money shall be paid into the public revenue where it is clear that neither party to a dispute has a just claim to it. I feel sure that, on reflection, the honorable and learned member for Wannon will be prepared to withdraw his amendment.







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