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Thursday, 16 June 1904


Mr MCWILLIAMS (Franklin) - I do not think that this amendment will quite meet what a good proportion of the Committee desire to achieve. We wish to draw a distinct line between penalties and damages. For instance, if a penalty of £500 can be imposed, and it can be shown that damage has been inflicted, either on employers or on a union of employes, the whole of that sum might be awarded in damages. But what we object to is the abominable system of giving a portion of the fine to any informer. If there is one form of greed on the face of God's earth which is more contemptible than another, it is that of the informer who lives on sneaking and obtaining blood money. Under this provision I am afraid that informers would be able to obtain such money, either against trades unions or employers. There is always a fear, if we put it into the hands of any Court to award any portion of a penalty to an informer, or to any body of men who turn informers, that persons will be induced to look round for the chance of informing for the sake of the reward. If means are given to do evil, men will soon be found to seek the rewards of evil.


Mr Watson - Under a stronger section of the New South Wales Act there has never been an instance where anything has been paid to an informer.


Mr MCWILLIAMS - Mr. Seddon,who certainly cannot be called antagonistic to legislation of this character, has publicly stated that if appeals are so perpetually made to the Courts, he will have to take into consideration the whole position of affairs.


Mr Watson - That remark was made on another matter altogether, and the context of Mr. Seddon's remarks was never published in Australia.


Mr MCWILLIAMS - If a trades union, or some of the members of a union, have suffered, and can show that they have received injury or damage, I do not object to the Court being allowed to recompense them to the last farthing If any employer can show that he has suffered loss at' the hands of his men, let the full award of damages be paid to him. But beyond that I would not go to the slightest extent.


Mr Page - Who has a better right to the award ? .


Mr MCWILLIAMS - If the honorable member wants these penalties to go to informers

Mr.-Watson. - We want them to go as damages to those who have suffered.


Mr MCWILLIAMS - I am prepared to allow the full amount of the damage that a man has sustained to be paid to him out of the penalty.


Mr Watson - That is all that is provided.


Mr MCWILLIAMS - This provision allows the Court to grant the whole of the penalty inflicted to the person bringing the case forward. I object to that entirely. If the Attorney-General could draft an amendment providing that the whole of the damages should be paid to the parties who have suffered, that would secure exactly what we are contending for.


Mr Watson - The Attorney-General advises that the paragraph now allows to be done what the honorable member desires.

Mr.JOHNSON (Lang). - I take the view which has been expressed by the honorable member who has just sat down, that the words which it is proposed to insert do not meet the case from the point of view of several honorable members. I suggest as a solution of the difficulty that after the word penalties," in the first line of the paragraph, we should insert the words, " Pay able to the Crown, or grant damages." I would make the paragraph read -

To impose penalties payable to the Crown, or grant damages, not exceeding the maximum amounts mentioned in the last preceding paragraph, for any breach or non-observance of any term of an order or award proved to the satisfaction of the Court to have been committed, and to specify to whom such damages shall be paid.

That would leave it at the option of the Court either to impose a penalty, or to grant damages, to be paid to either of the aggrieved parties. Further on the clause provides to whom such damages shall be paid. My suggestion would make the proposal perfectly clear, and would remove the ambiguity which exists in the words proposed to be added


Mr Watson - I will consider that.

Amendment agreed to.

Paragraph, as amended, agreed to.

Paragraph e -

To' enjoin any organization or person from committing or continuing any contravention of this Act, or any breach or non-observance of any term of an order or award.


Mr WATSON - I move-

That the words " or any breach or. nonobservance of any term of an order or award" be left out.

The idea with which these words were inserted in the paragraph is sufficiently covered by clause 55, which gives power to make orders or awards. It is, therefore, quite unnecessary to retain these words.

Amendment agreed to. Paragraph, as amended, agreed to. Paragraph / -

To declare, by any award, that any practice, regulation, rule, custom, term of agreement, condition of employment, or dealing whatsoever, in relation to any industrial matter shall be a common rule of any industry affected by the award.

Mr. McCAY(Corinella).- I freely admit that the Arbitration Court is not likely to make common rules on matters that have not arisen in a dispute. But I am inclined to think that the Court would have power to do so.


Mr Deakin - If the Constitution gives it to them.


Mr McCAY - It is not wise that we should have mistakes made as to the powers that are conferred by the Act. Say that a dispute arises which is cognizable by the Federal Court. Certain questions are submitted to the Court by either side in connexion with that dispute, and those questions are determined by an award. It seems to me that this paragraph, so far as its language goes, and apart from the point mentioned by the honorable and learned member for Ballarat, would enable the Court to declare as a common rule something that had not been in issue, and had not been raised by either party t'o the dispute.


Mr Watson - I do not think that that is intended. The idea that we had in our minds was that the Court might declare in a common rule less than it declared in an award, but not more.


Mr McCAY - But as the paragraph stands, I think the Court could declare more. I would suggest the insertion after the word " matter," of the words " determined by such award." As the paragraph stands, it would appear that the Court could make something a common -rule, .in addition to the award - something that was beyond the limits of the award itself. The Court would have wider powers as regards the common rule than as regards the- dispute itself. I shall not move the amendment now, if the Government would prefer me not to do so ; but I am inclined to think that that is a possible construction of the paragraph. I do not know whether the Attorney-General has had the point under consideration.

Mr. HIGGINS(Northern MelbourneAttorneyGeneral). - I cannot think that the honorable and learned member's proposal would make the clause clearer. In the latter part of it we intend to make an amendment which will clearly restrict the Court to the application of a common rule to the industry in connexion with which the dispute arose. As the clause stands at present, the common rule would apply to any industry affected by the award, so that I apprehend that a common rule made in connexion with a dispute between bootmakers and their employes, say, might affect the tanning industry. But the honorable and learned member says that we should prevent the Court from dealing with anything which is not within the dispute brought before it. The basic principle of the measure is trust in the Court, though some honorable members appear to think that the Court should be spoon-fed, or drawn about in leading strings. When the Court has to deal with a specific industry, in connexion with which it has heard certain evidence, and has discovered the existence of certain evils, it may consider that an award with regard to wages or conditions of labour should be applied over a broader area than that occupied by the parties to the dispute. But I cannot conceive of any sane Court dealing with a matter altogether outside of the case in which it has been taking evidence. I do not wish to tie the hands of the Court. If, with sufficient evidence before it, it considers that it would be advisable to make a certain regulation a common rule, I do not think we should prevent it from doing so, so long as the application of the rule is confined to the particular trade in which the: dispute arose.


Mr Hutchison - Could the Court deal' with a matter which was not in dispute?


Mr HIGGINS - No; that would be outside its jurisdiction. The honorable and learned member for Corinella did not go so far as to say that the Court would deal' with matters which had not been referred! to it, but he seemed to think that it might deal with matters which had not been referred to in the evidence taken in connexion1 with the carrying on of any industry concerned.


Mr McCay - I did not say that exactly.


Mr HIGGINS - Then I misunderstood the honorable and learned member. I cannot see that words which would obviously guide the Court in its action are necessary here. It is a mere question of making the clauses sufficient. If the Court went beyond the dispute before it, and the matters therein raised, it would be going beyond its jurisdiction. It must be remembered that the man who will deal with these matters will be a Judge of the High Court, and if such a man cannot be trusted to keep within the ambit of a quarrel, who could?

Mr. SPENCE(Darling).- I do not think that the proposal of the honorable and learned member for Corinella would make any change in regard to the common rule, and, therefore, I regard it as unnecessary. But he made another suggestion which I consider worthy of notice. That was as lc* the Court being limited to the matter in dispute. In my opinion, the Court should not be tied up. The common rule may not cover all that is embraced in an award. Am award may be made affecting a particularindustry, but the common rule may be only a portion of it. It may not be necessary to make the whole award a common rule. The Court not only stands in the positionof an arbitrator between two contending; parties, but, in extending an award by making it a common rule, must consider any other industry closely related to that immediately concerned, and have regard, to some extent, to the protection of the general public interest. Many industries, particularly manufacturing industries, are very closely interwoven. It may happen that employers and employes in a certain industry may come to an agreement as to conditions which may be detrimental to some other industry. One of the main reasons why I support the creation of an Arbitration Court is because such a Court, having continuity of existence, .will take cognizance of industrial relationships generally, whereas under the Wages Board system cognisance is taken only of particular industries. I think it best to leave the clause as it stands, so that the Court, if it chooses, may deal with matters not presented by the two parties to a dispute, but arising in connexion with it.







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