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Thursday, 16 June 1904

Mr McCAY - There are quite as many points of divergence between waterside labourers in tropical parts and those engaged in a more temperate climate as there are differences between other callings. If I am wrong in my assumption, with regard to the waterside workers, I shall be satisfied to have my proposal amended so that it will include persons engaged in carrying trades, or in transport work, which T think is the better term. The central idea of mv amendment is that the touchstone by which


the. applicability or otherwise of a common rule. is. to be determined is the question of competition. Do the waterside labourers of Sydney and those of» Melbourne, in any reasonable' sense of the term, come into competition with each other? I doubt if they do.

Mr Hughes - In some senses they do.

Mr McCAY - The .test of the necessity for 'the common rule is competition.

Mr Spence - Why ?

Mr McCAY - Because the chief ground for applying a common rule is that if we du not either the person who is subject to an award or the person who is not, will be at a disadvantage as compared with the* other. That is a fundamental principle. Mr. Spence. - There are other cases.

Mr McCAY - There may be numerous other cases to which the honorable member will be able to refer. I am simply putting my view before the. Committee, and I repeat that the fundamental justification of the application of the common rule is the principle that without its application A, who is subject to an award, is at a disadvantage as compared with B, who is not; and that A's disadvantage as compared with that of B, arises from the fact that A and B are. competitors - one an unfettered competitor, and the other a fettered competitor. Mr. Poynton. - Would not the cost of handling goods be increased.

Mr McCAY - If an addition is made to the cost, as. the result of the award, then the competitor, who has to pay that additional cost, suffers, as compared with the competitor who has not. In those cases let there be common rules; but where that condition of affairs does not arise there should not be common rules, and we should not give the Court power to apply them. This will be an indication to the Court of the kind of cases to which we think the application of the common rule would be justified. From the Federal point of view, this is the most substantial justification for the common rule. It, at any rate, makes me feel it my duty to support the principle 'of a common rule in some form or another. It is because this is my view of the justification of the common rule that I feel bound to submit a proposal to limit the application of the principle to' cases" in which that justification exists. I admit that the Court may ' be confronted with difficulties in determining this matter, but the difficul ties will be no greater than they would be if this limitation were not imposed. The Court would, at the very outset, consider at least one of these points before it made a common rule. It would not say in effect : " We are going to have a beautiful, imaginary, paper uniformity." It would rather ask : " Why should the award be binding all over Australia?" We say that in certain cases it should be extended, because persons under it may be suffering or else securing an advantage as compared with those who are not, for the reason that they have ultimately to go .to the same buyer, whether he be a buyer of goods or of labour, or of goods which are subject to increased cost as they are travelling to the market. That is one of the first matters which the Judge' would consider, and it seems to me that it is the main justification for the principle. It is because of the existence of this difficulty that we feel bound to assume a jurisdiction, although ultimately the doubts which some of us entertain may prove to be well founded. I am not wedded to the verbiage of the amendment. It expresses for the present the object that I have in view, and if it were found necessary to recast it I should be quite satisfied. I should not feel hurt if not one word of the amendment, as now proposed, ultimately appeared in the Bill, as long as the idea which it conveys were embodied in it. I trust that the Committee will realize that the proposal in regard to a common rule is viewed with very great apprehension by a large number of persons comprising not merely opponents of the Bill or of its principles, but friends of both. If we can, in this measure, give the public the assurance, so to speak, that it is only in those cases in which obviously unfair results must follow from the absence of a common rule that we are going to provide for the application of the principle or the possibility of common rules, we shall go far to secure for the Bill that Australian approval which is necessary to its ultimate success.

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