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Tuesday, 21 June 1904

Mr DEAKIN (Ballarat) - It is open to argument whether the words proposed to be omitted are essential, but a good deal can be said in defence of them.

Mr Watson - If there is much argument on the point I should prefer to leave them in the clause.

Mr DEAKIN - The clause says-

The. Court by its award, or by order made on the application of any party to the proceedings before it ....

That alludes to the preceding clause, which provides that -

No order or award shall be varied, and no submission shall be re-opened, except on the application of an organization or person affected or aggrieved.

The effect of those words is to render it impossible for the Court to make an order unless an application is made. They might just as well be retained.

Mr WATSON - I am informed by our legal advisers that the retention of the words - though they were not intended to minimize the power of the Court in dealing with matters of this kind - might be construed to minimize it They might be construed as compelling the Court to insist that an application must come from an original party ; whereas under clause 47 the Court is given power to exercise any of its powers on its own action, as well as on the application of any of ' the parties. Therefore, to make the words completely in consonance with clause 47 it would be necessary to insert the words, " on its own motion," in clause 48. I think' it will be safer to strike out the words. I am afraid that their retention might have the effect of confining the Court in instances where it did not wish to be confined, and where the Court thought it ought to make an order on its own motion.

Mr. DEAKIN(Ballarat).- On further considering the clause, I am not satisfied that what the Prime Minister has stated is the exact position. If it be thought necessary to protect the power of the Court to act on its own motion, there can be no objection to introducing words to that effect. But I do not see why the Court needs to be empowered tei act on its own motion in prescribing a minimum rate of wage, or remuneration, or in directing that preference shall be given to unionists. As I have followed the construction of this Bill, both those powers are, so to speak, the secondary consequences of previous applica tions to the Court, which are being dealt with by an award. I fail to see at the moment that the words proposed to be omitted weaken the power of the Court to exercise its other powers on its own motion.

Mr Watson - Would it not be a proper thing to allow the Court to have that option under clause 48.

Mr DEAKIN - Why?

Mr Watson - Because under clause 47 we pretend to give to the Court power to exercise any of its powers, and then, apparently, we attempt to cut down those powers by clause 48. '

Mr DEAKIN - I think it was intended to cut them down in regard to these particular matters. Two main things and one subsidiary matter are dealt with by this clause. The minimum wage is of extreme importance, and the preference to be given to members of an organization is also extremely important. It appears to ha've been thought that the Court ought not to declare a preference to unionists, or to prescribe minimum rates, when no one asks for them. These were powers which were to be used by the Court as if an award was being varied or extended. A provision is made in the preceding clause that when orders or awards are to be varied and submissions are to be reopened, that is only to be done when some person who is affected or aggrieved has applied. As I have said, the provisions of this part of the Bill - the minimum wage and a preference to unionists - are most important, would require to be asked for by those affected, and would not be granted by the Court unless at the request of some person who desired them. Passing over its power to deal with the necessary matters which arise in the conduct of any case, the Court may, under clause 46, enjoin any person from committing a contravention of the Act. The Court does not need to be moved by , any one for that. It may declare that any practice, regulation, rule, or condition of employment shall be a common rule. There is nothing to prevent the Court doing that. It may direct within what limits the common rule is to apply, may dismiss any matter, make orders as to costs and expenses, and so on. Those are all matters largely of form, and they arise out of awards. There may be either common rules or specific awards, and the rest of the powers relate to the manner in which the Court may exercise them.

Mr Watson - If these words are left out, it would leave it to the Court to vary the original order.

Mr DEAKIN - The Court cannot vary an order except on the application of a person or organization affected or aggrieved.

Mr Watson - That is sufficiently provided for in clause 47.

Mr DEAKIN - There the Court has to have an application from the person or organization affected or aggrieved; but in clause 48 we are dealing, not with matters of form but of substance. They are all important matters. And in these cases an application should be made to the Court before an order is made. That is to say, an organization may bring a case before the Court. They may not ask for a minimum wage, or for preference for unionists. In the course of the case they may determine to ask for a minimum wage or for preference. Then the Court may grant it. But the clause says that if the parties do not ask for it, the Court is not, of its own motion, to inject it into the case That appears to me to be the plain meaning of the words.

Mr Glynn - The words " by its award" cover more than that. Under the award the Court can do all that clause 47 allows.

Mr DEAKIN - Under clause 47 they cannot vary an award, except on the application of a person aggrieved ; and it is no ' limitation., but appears to me to be a wise provision, to give the Court power to do these things, but to add " Do not unless you are asked to do so."

Mr Watson -i do not think the words are very important.

Mr DEAKIN - No; it costs nothing to ask for a thing. The idea that appears to have been running in the mind of the original draftsman, the right honorable member for Adelaide, was that the powers under clause 47 should not, under clause 48, be exercised unless the Court were asked.

Mr WATSON - While I think that if the words contained in the amendment are retained, they may have the effect of limiting the power of the Court, I do not think that they are so important that it is worth while to insist upon their omission. I, therefore, ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr WATSON - I move-

That the words " with provision for enabling some tribunal specified in the award or order, to fix in such manner, and subject to such conditions as are specified in the award or order, a lower rate in the case of employees who are unable to earn the minimum wage so prescribed," lines 6 to 13, be left out, with a view to insert in lieu thereof the words, " and if it think fit fix a lower rate (in the case of employees who are unable to earn the minimum rate so prescribed), or make provision for such a lower rate being fixed in the manner and subject to the conditions specified . in the award or order by the Court, or by some tribunal specified in the award or order."

The idea of this amendment is to leave it optional with the Court to prescribe a rate lower than the minimum, or to fix- a tribunal which will have power to prescribe a rate lower than the minimum. The clause, as drafted, seems unintentionally to make the prescription by the Court mandatory. I do not think that that was intended, because in some employments there has never been any question about permitting certain people to work under a fixed wage. For instance, in the case of shearers and seamen there is a minimum rate of wages, and it is never suggested that there should be an exception for those who cannot- earn the minimum. I propose to leave it to the discretion of the Court, and, if reason be shown, as it' might be shown in some classes of employment, the Court might make an order.

Mr Crouch -What is the meaning of "tribunal"?

Mr WATSON - The idea is to allow of the appointment of a trade committee" to arrange these detailed matters.

Mr Crouch - Why not allow one person to do it?

Mr WATSON - A tribunal could con- , sist of one person, I -think. We are correct in referring to the Court as a tribunal, and the Court may consist of one person. Similarly, it could delegate its power to one person.

Mr Kelly - The New South Wales Act contains practically the same words, and there, apparently, the Court takes power to fix a lower rate than the minimum rate in the case of aged persons.

Mr WATSON - I regard that as very necessary, and do not wish to take that . power away from the Court. But I do not wish to make it mandatory for the Court to arrange such matters, unless there is an application from either party. The clause as it stands may seem to compel the Court to do so. But in many cases it may be unnecessary.

Mr. DEAKIN(Ballarat).- This amendment raises a point which is worthy cf consideration. It makes an important change. The question is whether, whenever a minimum wage is fixed, there should be provision made to vary that minimum. It might or might not be varied at the instance of some person interested in those who are not able to earn the minimum wage. When the Bill was drafted, the view taken, with regard to this particular clause, was that to fix a minimum might often be desirable. It is a sort of common rule; a short cut to obtaining equality of treatment throughout a trade, and, as such, may be very valuable. But it was thought that this power, if it were to be used at all, might be undertaken by the Court, without that exhaustive investigation into all the details of employment in the business concerned, which would show whether it was or was not necessary to have provision made for a lower payment than that of the minimum wage, to those whose physical or mental qualities did not enable them to earn the minimum.

Mr Watson - That applies to a limited number of industries.

Mr DEAKIN - But the view of my late honorable colleague and of the late Government was that the application of the minimum wage on a Federal scale to disputes in industries extending beyond the limits of a State implied such a large area, - and such a great variety of conditions, that it ought to be an essential condition that there should be attached to the fixing of ,a minimum wage, in every case, the establishment of a tribunal which could allow a lower rate to be paid to men who could not earn (hat minimum. The proposal of the Government, so far, is reasonable in itself, but it involves an important distinction. The amendment provides that the Court may, if it think fit, fix the minimum wage without any provision for .1 lower rate. Consequently, no matter what the circumstances are, no person could then be employed except at that minimum wage, from which there could be no deduction. That is a very important change, and, on the whole, I think we had better keep to the Bill.

Mr Watson - Would the honorable and learned member compel the Court to erect a tribunal of this sort in regard to shearers and seamen? As to these men, there has never yet been any question about a lower rate than the minimum. The whole point is, whether the minimum shall be raised or lowered ?

Mr DEAKIN - I confess that cases may be cited on which a good argument may be founded ; I do not know enough of the particular industries to judge. But in those, as in any other cases, it may be desirable to fix a minimum below which there ought to be some special exceptions.

Mr Watson - It would introduce an unnecessarily disturbing element in the case of shearers, seamen, and men. of that kind.

Mr DEAKIN - That would only be done by specifying some tribunal in the award, and the Court fixes the tribunal. For instance, what I understand has been the practice in most industries is that the Chief Executive Officer on each side, with, if necessary, a third man, are appointed, and the Judge has said " Decide amongst yourselves." Such a tribunal does not act except with the consent of both parties.

Mr Hughes - Perhaps the Registrar might be added.

Mr DEAKIN - The Registrar might be added as a third person. I recognise that the proposal of the Government is not unreasonable; but, at the same time, it makes a serious change. The late Government were of opinion that the minimum wage was so important that it ought to be included; but at the same time we thought that, when applied federally over great areas, there were so many varying conditions that unless the proceedings of the Court, in the first instance, were to be made exhaustive by an inquiry into the circumstances of all the cases where it could apply, the probability was that the Court would altogether refuse to fix the minimum wage. The provision was inserted as a condition, so that the Court might without elaborate information feel that it was perfectly safe in fixing a minimum wage, by also appointing a tribunal satisfactory to both parties. If there were cases which, in its then knowledge, the Court did not foresee, and which it could not investigate without prolonged inquiry and expense, a tribunal could be appointed, representative of both parties,' which would not be employed unless necessary. While the Prime Minister maysuggest occupations in regard to which such a provision seems difficult, I do not know, unless he is prepared to define them in the Bill itself, whether the amendment might not be made the means of throwing the door open to the application of a minimum wage without exception in every trade.

Mr Watson - The Court, in view of the language employed in the amendment, will always have regard to the issue as to whether it is necessary. It is a sort of indication to the Court that it should take the course, at all events, in such cases as it thinks proper. The clause as it stands, however, gives no alternative.

Mr DEAKIN - That is the question. If the Court think lit, it may do so. The amendment, I admit, does not take away the Court's power.

Mr Watson - Not at all.

Mr DEAKIN - In the Bill, as it stands, it is made a condition.

Mr Groom - It is mandatory in the Bill.

Mr DEAKIN - It is a condition precedent in every case where a minimum rate is fixed. The question is whether we ought to let the provision remain, or whether we ought to accept the proposal of the Government, which allows the Court to do as it likes. According to the amendment, the Court may, if it thinks fit, fix a minimum rate without the condition precedent ; and this raises a very important issue.

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