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Thursday, 16 June 1904

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The Minister of External Affairs attempted to show by reference to a case which occurred at Newcastle, in New South Wales, that a fine or penalty had been applied to the payment of damages to one of the unions concerned in a dispute. The provision in this Bill .has been adopted from the New South Wales Act, and therefore we may assume that the Federal Arbitration Court would have power similar to that which has been exercised by the State Court. I find by reference to the case referred to that the Court first of all awarded damages to the amount of £15 15s: against the offending union, and then awarded costs' in addition. Then they fixed the penalty for any subsequent breach of the award at £100. They did not deduct the damages from the penalty, because no penalty was inflicted at that time. They fixed the penalty for any subsequent breach of the award, and specified that the full amount of the penalty should be paid to the union which was aggrieved. That is what is objected to by the honorable and learned member for Wannon. He is opposed to the allotment of the fines before an offence has been committed, because persons will probably be encouraged to bring cases into Court with a view to obtaining compensation.

Mr Mcwilliams - It would revive the old informing system.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Yes, it would encourage informers. I should much prefer to see a provision permitting the Court to allot damages and costs to the aggrieved union to the extent that it thought fit, the balance of the line to be paid into the Treasury.

Mr Page - There would be no balance.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Perhaps not. The case quoted by the Minister does not support his contention, because damages were allotted apar from the penalty imposed, and it was ordered that the penalty to be incurred in the event of a breach should be handed over to the aggrieved union. Even though the payment of£1 might constitute sufficient compensation, the union was to receive the full amount of£100. I think that the objections raised to such a provision are reasonable, and that some arrangement fair to both sides should be made.

Mr. GROOM(Darling Downs).- I would request the attention of the Prime Minister whilst I read this clause -in conjunction with subsequent clauses. Under clause 46, paragraph c, power is given to the Court to fix maximum penalties, and to specify the organizations or persons, to whom such penalties shall be paid. That is the provision which' the honorable and learned member foi Wannon desires to omit. In paragraph d power is given to the Court to impose penal - ties within the maximum previously mentioned, and to specify the organizations 01 persons to whom the penalties shall be paid. Then in clause 52 we find that application can be made to Courts of summary jurisdiction to enforce the payment of penalties. Therefore, under paragraph d, of clause 46 and clause 52, alternative Courts are provided, between which an applicant can make his choice when he desires to recover a penalty. Clause 52 provides -

Where any organization or person bound by an order or award has committed any breach or non-observance of any term of the order or award for which the Court has fixed a maximum penalty, any organization or person entitled to the penalty may proceed for the recovery thereof in any Court of summary jurisdiction.

In the first instance a maximum penalty would be fixed under clause 46, paragraph c, and afterwards an aggrieved person might apply to the Arbitration Court or to a Court of summary jurisdiction to impose the penalty. The latter Court, however, would have no option but to impose the maximum amount. Under section 46, paragraph c, the Arbitration Court could fix the maximum penalty at, say,£500,and provide that that amount should, in the event of a breach, be paid to the aggrieved organization. That would be fixed by the award, and would be part and parcel of it. If there were a breach two courses would be open for the aggrieved person in order to secure the enforcement of the penalty, namely, by application, under paragraph d, to the Arbitration Court, or. under clause 52, to a Court of summary jurisdiction. The latter class of Courts would be sitting at all the States capitals, and the aggrieved organization, which would probably have branches in all the principal centres of the Commonwealth, might go to any of these Courts, or to the Arbitration Court at the Seat of Government. I think that the desire of honorable members is that justice shall be done on the spot where, the breach occurs. . To secure this, it would probably be necessary to apply to a Court of summary jurisdiction. . If, however, the Arbitration Court had already fixed the maximum penalty, and had specified the organizations or persons to whom it was to be paid, the hands of the Courts of summary jurisdiction would be tied.

Mr Watson - What influence would the words "if the Court thinks fit" have, if they were inserted?

Mr GROOM - I think it would be inadvisable to allow the Arbitration Court to specify in its first award how the fine should be applied. I am supporting the view taken by the honorable and learned member for Corinella. Suppose that an award were given in regard to a dispute affecting the seamen, and it were' decided by the Arbitration Court sitting in Melbourne, that the penalty for a breach should be £500. It is not advisable to permit the Court, in its first award, to decide how the penalties should be applied, because a breach might not occur until, say, twelve months, afterwards, and perhaps then upon entirely different- facts a matter of the breach of award might arise in some such place as Adelaide or Fremantle. Suppose that a wrong were clone to either employers or employed, the aggrieved party would either have to come back .to the Seat of Government, and apply to the Arbitration Court to vary the award, or to go before a court of summary jurisdiction and seek an enforcement of the penalty in accordance with the original award. The circumstances might vary very considerably in different cases, and we should seek to insure justice on the spot in accordance with the facts as they arise.

Mr Deakin - The honorable and learned member is proposing to allow the inferior Courts to decide how a penalty shall be applied.

Mr GROOM - I can see no harm in doing that, because it will be purely optional for the parties to go to the Arbitration Court direct, or to apply to a Court of summary jurisdiction. It might be more convenient for them to take action in Western Australia, rather than come all the way to Melbourne.

Mr Deakin - That would be a very serious responsibility to impose upon a police magistrate.

Mr GROOM - I do not think so. The matter might be a very small one. -

Mr McCay - Then, take the alternative - the organization cannot get the money unless it comes to the Arbitration Court.

Mr Watson - That is worth considering.

Mr GROOM - The Arbitration Court should fix the maximum penalty, and the court of summary jurisdiction should award any damages it liked, from the smallest amount recognised by the law up to the maximum. It would be better to follow- the suggestion of the honorable and learned member for Corinella, and allow the Arbitration Court to fix the maximum penalties permitting the parties to proceed by subsequent application for the purpose of securing a decision as to how the money shall be applied. Whether or not it be desirable to leave that decision to an inferior Court, it is. absolutely necessary that we should allow the Arbitration Court to deal with the allocation of the penalty at a later stage, in order that the amount may be fixed according to the circumstances. As to the proposal that the money should be paid into the Treasury, I should leave the matter entirely to the discretion of the Court. If it thinks that the matter is one purely of damages let it award the full amount to those who are injured. I thoroughly agree with the honorable and learned member for Corinella that it is not advisable to multiply legal proceedings, but to provide the easiest machinery that can be devised for performing all the operations 'that the law requires. We should permit everything to be done expeditiously, and on the spot. Under the present proposal if the Arbitration Court fixed a maximum penalty, and decided that when a breach occurred the whole of the fine should be paid to one. or other of the organizations, that would fix the matter absolutely until the award was varied. A 'person might then ask the Court to award him damages under paragraph d of this clause, and find himself confronted with a hard and fast award made some twelve months previously, and thus justice could not be done.

Mr Mcwilliams - Does not the honorable and learned member think it wise to differentiate between penalties "and damages?

Mr GROOM - No, 'I do not think it is necessary. A certain sum could be fixed as the fine to be inflicted for a breach of an award, but before compensation could be paid there must have been a breach. In other words, there must have been something to justify the penalty, and only after the penalty has been imposed should the Court have power to specify to whom it should be paid as compensation. Here the party to whom compensation shall be paid is clearly within the discretion of the Judge.

Mr Higgins - What Judge ? The Judge who makes the award, or the one who imposes the penalty'?

Mr GROOM - In New South Wales there is only one Judge of the Arbitration Court. Under this Bill there is only the President of the Court who may make an award, and the application for its enforcement must be heard by him. I should like the Attorney-General to meet the views of the honorable and learned member for Corinella as far as possible. I cannot support the proposal of the honorable and learned member for Wannon. He attacked the clause because he does not believe that any of the fines inflicted ought to be paid into the funds of a union.

Mr Kelly - He was speaking of "fines" as opposed to "compensation."

Mr GROOM - I arn not opposed to the principle underlying the clause, neither is the honorable and learned member for Corinella. What he emphasized was that it is undesirable to permit of an award being made allotting sums to certain persons one day, and subsequently for the Judge who is called upon to decide the question of compensation upon fresh facts to find his hands tied.

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