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Tuesday, 21 June 1904


Mr CARPENTER (Fremantle) - I must thank the honorable member for Gippsland for his very honest admission of the benefits which unionism has given to the worker, as well as for the admission that - I was going to say with all his prejudices against unionism - he would yet advise the workers to become members of trades unions. Up to that point I am in agreement with him, but I wish that his acquaintance with unionism were practical rather than theoretical. If it were not merely a matter of theory we should have been spared his somewhat strong denunciation of this clause, which, he asserts, is. solely designed to compel non-unionists to become members of unions. That is not the object of the clause. I am prepared to hear the objections that have already been urged against the clause raised again and again before it has been finally passed, but they appear to me to rest more on a theoretical than a practical acquaintance with unions 'and their practices. We have had from the honorable member for Lang a. very pronounced statement in opposition to the provision, based entirely on the theoretical objection to interference with the liberty of the subject. He told us that if this clause became law it would restrict personal liberty. The answer to that statement is obvious. Every law we pass must be a restriction on personal liberty, and those who, like the honorable member, preach the doctrine of laissez faire seem to forget that they are voicing doctrines which were discredited half a century ago by the best thinkers of the age, and have, been discarded by every man who claims to be in touch with modern politicoeconomic thought. The . honorable member informed us also that an attempt was being made by compulsion - and I need hardly remind him that compulsion is the basis of all our laws - to secure benefits for unionists as against non-unionists.

I emphatically deny that we are seeking to do anything of the kind. We are attempting by using the machinery of unions and by taking advantage of the efforts of unionists, to do something that will benefit not only unionists, but every person engaged in an industry. What is the use of saying that we are seeking to obtain some special benefit for a particular class, when we know that if this clause were passed it would apply to all persons, whether unionists or not. Those who have any knowledge of the matter will admit that in the States in which local Arbitration Acts are in operation, non-unionists have derived as much benefit from them as have unionists. If they are honest, they will also admit that non-unionists could not have secured the benefits of such legislation had not certain of their fellows organized themselves into unions, and made the passing of it possible. Objection was taken by the honorable member for Lang to a circular issued a few days ago by the Federated Sawmills and Timberyards' Association. The honorable member sought to make us believe that in view of the introduction of this Bill that association was bringing pressure to bear upon its members, as well as upon non-unionists engaged in the industry, to compel them to remain or to become members of the union. I fail to discover any connexion between the probable passing of this measure and the issue of that circular. As all who are familiar with the working of unions know, there are occasions when it is necessary for every_ union to use a whip of the kind referred to. Sometimes members' contributions fall into arrears ; sometimes men think that they have obtained billets for life, and no longer need the protection of a union - a mistake which they often prove to their cost - and these persons need a reminder of the benefits of unionism in order to bring them back to their old standard. So far as I can gather, the issue of this circular was intended to have that effect, and had no ulterior motive. The honorable member who quoted it did not seek to prove that there was any connexion between it and this Bill. We have also heard a good deal of an attempt on the part of the Sydney Wharf Labourers' Union to exclude certain persons from its ranks. I am as strongly opposed as is any one to any attempt on the part of a union to make itself a close corporation, and to exclude from its ranks those against whose competency nothing can be said.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) -Who are to be the judges of their competency ?


Mr CARPENTER - A union has surely some right to judge of the fitness of applicants for membership ? I have yet to be convinced that, even in the case of the Sydney Wharf Labourers' Union, there was not some objection that could be urged against the men who were excluded. Nothing to the contrary has yet been said, and it may transpire that the attempt to exclude the men in question was made after due inquiry, perhaps, by other unions. , Inquiries are often made by one union on behalf of another, and no objection is taken to the practice. ,


Mr Kelly - If there had been any objection to these men, surely the Court would not have decided against the union ?


Mr CARPENTER - I do not admit that a union would put forward any financial objection. The union of which I am a member, for example, claims that membership shall be in the nature of a hall-mark - that it shall be some evidence of a man's qualifications as a tradesman. When a man is so provedly unskilled that he should not be allowed to join, we exclude him, not because we do not de-, sire him to become a unionist, but because his membership would lower the status of the union, and so injure all the members. No objection can be taken to the action of any union, and more particularly a union of craftsmen, that excludes men from membership on that ground. I assure those who have not a close acquaintance with unionism that there is no attempt to exclude men for the purpose of cornering a market. Even if unions were to resort to such a practice, they would simply imitate what is frequently done in commercial life. Workmen could not be blamed if they were sruilty of attempting to do in connexion with the labour market what is often done by importers and manufacturing and trading classes in respect to their businesses. ' Merchants and others attempt again and again to corner a market, and we know that they sometimes succeed. Some of them are ready to stoop to almost any practice to shut outcompetition, and yet we hear of no denunciation of the wickedness of such a system. As soon, however, as an attempt is made to exclude a man from a union, we have many honorable members holding up their hands in horror, and, regardless of what the reason may be, denouncing it as an effort on the part of unionists to establish close corporations, and to create an aristocracy or' labour. The Minister of Home Affairs has already referred to the case of the Sydney Wharf Labourers' Union. I would point out, however, that, apart from this Bill, they have at present the power to exclude persons from their ranks, and that this measure is really an attempt to provide a remedy. The clause, instead of having the effect suggested by the honorable member for Lang, would have the opposite result. We have an illustration in the very case he quoted. The union to which he referred sought, for some reason or other, to exclude certain men from its ranks, but the State Arbitration Court - a tribunal similar to that which we seek to provide for the whole Commonwealth - stepped in and said in effect - "You are now' seeking to do something' which, in our opinion, woul'd be unjust, and, therefore, we place a ban against your proposal." It will thus be seen that, even from the stand-point of those who object to the clause, the Bill would provide a remedy for the evil they suggest. It has been pointed out that one justification for the proposal to give the Court this power is that the unions, by accepting legislation of this kind, have given up the only weapon which they have hitherto been able to use in their own defence. I refer to the power to strike.


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - They have a better weapon left - the franchise.


Mr CARPENTER - I am not so sure of that. Speaking as a practical unionist, I doubt whether the benefits which unionists will receive from this measure, as well as from similar State laws, will wholly recoup them for the loss of the power to strike. There are many unions which today would prefer to resort to the old order of things - to stand in their own strength, and to fight their own battles, rather than to be made subject to a measure of this kind. Those who, like myself, take any prominent part in unions have found it difficult to persuade some of the unions that it is better that they should accept legislation of this kind than adhere to the old methods of industrial warfare. To those who are opposing this Bill I should like to say that we are not seeking, in advocating provisions of this kind, to do that which is likely to please our unions. We might be doing better from a personal point of view by championing the maintenance of 'the old condition of affairs. The unionists themselves are not enthusiastic in their demands for this legislation ; but they recognise, as we all do, that the old method of settling disputes by means of strikes re-acts, not. only upon themselves, but upon others who have no part in the dispute, and who are often innocent sufferers when industrial disputes occur. The action of a non-unionist, even under the present system, and in the absence of arbitration laws, frequently causes a good deal of bitterness and strife in our industrial life. ' We legislate for men as we find them, and we know from practical experience that there is a considerable number of persons, in all walks of life, prepared to take advantage of anything placed within their reach, no matter what it may have cost others, and who never subscribe a ' sixpence towards the cost of securing those benefits. Our unions have to bear the cost of their organization. The subscriptions are sometimes such as their members can ill afford. Then the passing of Conciliation and Arbitration Acts in some of the States has resulted in a painful surprise to the unions when they have discovered how much it costs to conduct a case. Frequently, as much as £200 or £300 of their funds have been swallowed up in bringing trivial disputes before the Court. This money comes out of the . pockets of men who, as a rule, earn small wages. When men make such sacrifices, not for their own benefit only, but for the common good, and after their money and energy have been sunk to avoid strife, or to settle disputes by more pacific means, it is somewhat mortifying to have others coming along who say - " We are going to - take all the benefit that you have been striving to attain, but we are not going to pay a sixpence towards the cost of securing it." It will be for the Court to say whether a preference shall be given to unionists. If the indirect result of giving a preference is to bring other men into the unions, does any honorable member say that they are being treated unjustly? I know that it is popular to get up and talk about " the liberty of the subject," but, as a matter of fact, we are always interfering with the liberty of the subject. Not only by means of the laws which we pass in Parliament, but in our social relations, very few of us, when it comes down to the last analysis of things, are allowed to do what we individually might wish to do. Even if the result of this legislation may be to compel men to rejoin unions, no great hardship will be done. In fact the balance of advantage will be altogether on the other side. Courts of Arbitration in Western Australia, New South Wales, and New Zealand have similar powers. If there were any abuse of those powers, I am sure we should have heard a great deal about it. But so far as T arn aware there have been no serious complaints as to any of these Courts having stretched its powers in this direction. I speak subject to correction, but I do not know of any case in Western Australia where the Court has ordered a preference to be given to unionists. Indeed, the Court has rather inclined in the opposite direction. . Frequently there has been a feeling of soreness on the part of labour organizations when' they - have found that a mere handful of men outside their ranks have been allowed to ' flout them, and, while taking all the benefits which their efforts have secured, to remain outside the unions. There has been a good deal of bitterness that preference in these cases has not been given to unionists ; and it has been' demanded that the Western Australian Act shall be amended in the direction of giving the Court, not only power which can be exercised when it thinks fit, but a direction to say that under certain conditions preference shall be given to unionists. I do not know that Ave need advocate that here. Let us trust the Court. Our experience so far does not cause us to hesitate in that direction. We can trust the Court to exercise this power just as we trust the Court to exercise its judgment in reference to the common rule, and, in fact, in relation to every power that we shall confer upon it by passing this measure. I hope that the Committee will not be led aside by any theoretical objections to taking the facts as we find them in three States where similar legislation has been passed.

Mr. DEAKIN(Ballarat).- I am unable to agree with that part of the argument of the Minister of External Affairs in which he pointed to this as a compensation to be granted to the employes for their surrender of the power to strike. As I understand this Bill, the compensatory sacrifice on the part of the employers is the power to lock out, and the surrender by them of that power balances the surrender by the employes of the power to strike.


Mr Watson - Not by a long way.


Mr DEAKIN - I dare say that the employers would also disagree from an opposite stand-point. I am free to admit that the whole of this Bill exhibits, if it be carefully examined, a sort of vertebrate construction, in which every part on the one side is balanced by a similar part on the other. Employers and employes are treated with absolute equality, except in regard to this preference. Under this Bill there is a preference to employes, but not to employers, and I have yet to hear of any device by which it would be possible to grant the latter preference. It is the one thing in the Bill in which, so far as I can see, there is no balance by a concession on the other side. Honorable members, in the course of the discussion, have spoken continually of the preference to unionists. There is no power to give a preference to unionists under this Bill. There is a power to give preference to members of organizations, who in the case of employes will no doubt generally, if not always, be unionists. But it is not a condition precedent that a member of an organization should neces sarily be a member of a union. The measure may be applied to those unionists who are members of organizations, or to those non-unionists who may choose to join organizations.


Mr Johnson - The term" unionists " is used in the side-note to the clause.


Mr DEAKIN - It is used in a misleading side-note, but side-notes are not a part of an Act, and this one will no doubt be corrected later. The honorable member for Lang has called attention to one important set of considerations, which most of us have had in our minds, with regard to this matter of preference. The organizations, it is pointed out, might be constituted into close corporations, and, if so, the effect of the Bill would be to create monopolies. Against this there has been a very general sentiment which has been expressed on the other side of the chamber, as well as by honorable members on this side. Indeed, at an earlier hour this afternoon the Prime Minister supplied me with a draft suggestion of his for a new paragraph, to be introduced in clause 67, in order to meet this very difficulty. In this proposed new paragraph the Registrar is given power to cancel the registration of an organization on several grounds, so that it would cease to have any of the privileges and powers of an organization under this measure. The clause itself provides, as I think, and as he thinks, an ample remedy in this regard, but in order to make it perfectly plain that no advantage is intended to be taken, by the creation of these organizations, to permit of their being turned into industrial monopolies, the Prime Minister was prepared to propose a new provision which would give the power of cancelling an organization to the Registrar if the rules of the registered organization did not provide reasonable facilities for the admission of members. The Court would decide what were reasonable opportunities. It seems to me that if we went so far we ought to set out at length the various points on which the Court, as well as the Registrar, would require to be satisfied, and on which the Registrar would act if not satisfied. Finally, after an addition was made to the proposal by the honorable and learned member for Indi, I have here the complete provision, which I will venture to read to the Committee. The new proposal, which would be paragraph c1 to clause 67, confers upon the Registrar the power to cancel the registration of any organization if its rules do not provide -

Reasonable facilities for the admission of new members, or impose unreasonable conditions on the continuance of membership, or are in any way so as to be tyrannical or oppressive.

It seems to me that these powers are alreadyincluded in paragraph a of clause 67, but this provision sets out in plain language what is the intention. It is that an organization under the Bill shall be an open corporation - open to every member who is reasonably able to prove his competence to enter it ; and that a means shall not be given of favouring one part of the organization against another. By extending the existing power conferred by the clause, we should remove the apprehensions of the honorable member foi Lang, and those who have been following the same line of argument.


Mr Carpenter - - " Oppressive :' is a very wide term.


Mr DEAKIN - It is a legal term that is well known in the Courts. I understand that the Prime Minister sees no objection to it. It strengthens the powers which are already conferred, as a matter of fact, by the first paragraph of clause 67.


Mr Johnson - I gave notice of a new paragraph, c c, ton similar effect three weeks ago.


Mr DEAKIN - I had not seen it until just how. I will read it -

That a registered organization has refused to admit new members or has failed to provide facilities for the admission and enrolment of new members.

That, is exactly the same in intention as the first part of the provision which I have read : though this provides for the continuation of membership and for the protection of men who are subjected to tyrannical or oppressive conditions. I have admitted that the proposal now before the Committee is one which, so far as I can see, is not counterbalanced by- anynew privilege to the employers. But, with that exception, may I point . out to the critics of the clause that it is, as they are no doubt aware, optional ; that is to say, it is a new power, a special power, a novel power, and an important power, conferred upon the Court. But the power is to be exercised by the Court only in its judgment. In the Bill no clue whatever is furnished to the Court as to the grounds on which it is to exercise or refuse to exercise the power. The only indication to be found is in the one general provision that the Court is to decide according to equity, good conscience and the substantial merits of the case. It will take a good deal of consideration and some argument to find in that very general authorization any particular grounds on which the Court may feel called on to exercise this power. The Court has authority to give preference, and it will only give it when it feels called on to do so by considerations of equity, good conscience, and the substantial merits of the case.


Mr Ewing - Can there be any doubt that, other things being equal, preference will be given to the unionist over the nonunionist ?


Mr DEAKIN - There is no doubt that the Court, having considered an industrial dispute, has power in its award to include a direction to employers to give a preference to members of organizations, other things being equal, and to exhaust the eligible available members "of those organizations before looking outside.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - That is being done now.


Mr DEAKIN - That is being done in New South Wales, and I am about to quote one of the cases brought before the Arbitration Court of that State, as indicating the manner in which the choice has been exercised there. In the case of the Professional Musicians against Williamson, heard in the New South Wales Arbitration Court in September, 1902, and reported in vol. 2, part .1, page 17, of the Industrial Arbitration Reports, I find that the head note sums up the Judge's judgment as follows : -

That the Court will, as far as possible, avoid making compulsory orders for preference, and allow the parties to follow their own bent, unless some real necessity for making the order can be shown.

It appears, therefore, that this power of the Court has been exercised in New South Wales only when the real necessities of the case, and its substantial merits, seemed to call' for its exercise.


Sir John Forrest - The power is not conferred in New South Wales in special terms, is it ?


Mr Watson - The provision in the Bill is the same as that in the New South Wales Act


Mr DEAKIN - I think that this Bill is more specific.


Mr Watson - I do not think so.


Mr Kelly - Very many preferences have been granted, I think.


Mr DEAKIN - Quite a number. But each has been dealt with as in the opinion of the Court the case demanded.


Mr Glynn - That was only in cases where the dispute was in regard to preferential employment. In such case the jurisdiction exists, or, otherwise, the dispute could not be settled. But why allow the question to be imported into every dispute of which that is not the subject ?


Mr DEAKIN - I should not like to answer off-hand a question of the kind.


Mr Glynn - I may say at once that I intend to submit an amendment limiting the power.


Mr DEAKIN - I have here more than a dozen cases in which preference has been granted in New Zealand and in New South Wales. Quite a number of them, I know, included other matters besides that of preference, and some included preference only by way of addition after the case had come into Court.


Mr Glynn - The dispute in the bootmakers' case was as to preferential employment, and the extreme step was taken of dismissing a man because he would not join a union.


Mr Watson - The provision is practically a repetition of the section in the New South Wales Act


Mr DEAKIN - Of course, if the dispute is as to preferential employment, it may well be said that it is impossible to decide the case without dealing with that question. But, irrespective of that, in New Zealand and elsewhere preferences have been granted by the Courts after having examined the circumstances and satisfied themselves that the exercise of the power was necessary before there could be a settlement of a dispute.


Mr Crouch - Can the honorable and learned member point to a case where a man can justly be forced into the union ?


Mr DEAKIN - We have nothing to do with unions. No man can be forced into a union under this Bill'. A man will only join an organization if he feels that it is in his interest to do so. The paragraph will make it easy for any man competent in his own trade to become a member.


Mr Kelly - A man might not understand the difference between an organization and a trades union.


Mr DEAKIN - I am not called on to deal with that confusion.


Mr Ewing - If the word "shall," in line 24, were altered to " may," what effect would that have on the clause?


Mr DEAKIN - It would make the clause meaningless. In line 15 there are the words, "The Court by its award may," and then we come to paragraph b; " direct that, as between members of organizations of employers or employes and other persons...... preference shall be given." If the Court " may " exercise its choice, and all it may say is that preference may be given, that would give the employer a power which he has now, and which he may or may not choose to exercise. My object in rising was to point out that probably by an amendment in clause 67 we can meet some of the objections which have been raised to this proposal. For the rest, it requires to be remembered that this is simply a power of the Court, which will be exercised when equity and good conscience demand.


Mr Webster - As in all other cases.


Mr DEAKIN - As in all other cases, Under what conditions the power may be exercised is left to the judgment of the Court. There is no attempt in this clause, or in any other part of the measure,' to limit the freedom of the Court.







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