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Wednesday, 10 August 1904


Mr SPEAKER - I ask the honorable member for Hume to withdraw the expression to which attention has been called.


Sir William Lyne - I withdraw it.


Mr McCAY - I cannot understand the heat of the honorable member for Hume.


Mr McDonald - The honorable and learned member is working very hard, and I congratulate him.


Mr Tudor - The honorable and learned member wants to be in the team.


Mr Reid - The honorable member for Hume evidently wants to be in something.


Mr McCAY - All I can say is that it is owing to nothing that I am doing, or asking, that the Government have taken up their present attitude in the matter.


Mr Watson - All the same, it is usually considered most discourteous to refuse reconsideration.


Mr McCAY - I would point out to the Prime Minister that no reconsideration is being refused, because the whole matter can be fully debated on the amendment I am about to move.


Mr Watson - No, it cannot.


Mr McCAY - If the amendment could' not be debated, I should not submit it.'


Mr Watson - The honorable and learned member knows that no amendment can' be moved, at this stage, on his proposal, or upon that of the Government.


Mr McCAY - I do not know how many amendments the Prime Minister wants to move.


Mr Watson - I do not want to move any amendment.


Mr McCAY - I know there was an amendment in the clause carried by a majority of the Committee, and I know that the Government propose to insert another amendment which they have circulated in, I presume, the exact words which they wish to have inserted. We have two alternative proposals before us, and nothing more ; and, having those proposals before us, we can as easily decide the matter now as later on in Committee.


Mr Hughes - That applies to every one of the clauses it is proposed to recommit.


Mr Watson - Hear, hear !


Sir William Lyne - We will not do it.


Mr McCAY - The honorable member for Hume says, " We will not do it " ; but that is a maher for the House to determine.


Sir William Lyne - The sense of fair play of the House will not permit anything of the kind.


Mr McCAY - I can see no unfair play. Sir William Lyne. - I can.


Mr McCAY - The honorable member for 'Hume may be a good judge of what is fair or what is unfair play ; but, so far as I am concerned, I can see nothing unfair in my proposal. It seems to me that the House is as fully competent as the Committee would be to decide this question. It is not as though there were a variety of different proposals submitted.


Mr McDonald - Then why go into Committee at all?


Mr Spence - Why propose a departure in regard to this clause, and not in regard to the others?


Mr McCAY - Because on this particular clause the Government ha ve. taken up the position that they will not accept my amendment.


Mr Spence - How does that apply?


Mr McCAY - The Government are determined to have their own amendment ; and I venture to. take up the position that I shall adhere to my amendment, and will not support that of the Government. I am prepared to back my opinion by moving accordingly ; that is all.


Mr Groom - Why not move in Committee ?


Mr McCAY - Why should I not move in the House? What injury can the Government suffer by having this matter debated in the House instead of in Committee? It is not a question of settling verbiage, or of drafting, but of choosing between two very important alternatives, one of which seeks to achieve a particular end, whilst the other has an object which I must confess is not quite clear.


Mr Hughes - How \does the present proposal differ from any other for the recommittal of a Bill? Why should not the honorable and learned member oppose all recommittals ?


Mr McCAY - I have known recommittals to be objected to. I can remember cases in which Governments have objected to recommittals. Take the case of the tea duty. I have also known a Government to receive a warning that the recommittal of a tea duty would not be permitted. Even in connexion with the present Bill, I heard the Prime Minister say that he would not agree to a recommittal for the purpose of considering the principles contained in one or two clauses.


Mr Fisher - The Government did not propose to recommit the tea duty.


Mr McCAY - It was announced beforehand that the Labour Party would oppose it. The Prime Minister announced, when he was asked if he would agree to an unconditional recommittal, that he would not consent in regard to one or two clauses in which certain principles were involved ; that he would agree to a recommittal with the object of dealing with the verbiage, but for no other purpose. If the Government are entitled to refuse to recommit a clause because they hold certain views, I fail to see why any honorable member, however humble may be his position, should not be entitled to adopt the same attitude, especially when, as is the case here, the whole question can be as definitely decided in the House as in Committee - with the exception, as I said before, that honorable members will not be able to speak so frequently in the House. That is not an unmixed evil, although it possibly may be an evil of some kind. The amendment which was carried after fair consideration 1 wish the honorable member for Hume would not interrupt.


Sir William Lyne - I am not interrupting the honorable and learned member.


Mr McCAY - I object to any honorable member indulging in a constant stream of interjections that I can hear, but which Mr. Speaker cannot hear.


Sir William Lyne - The honorable and learned member ought to behave himself.


Mr McCAY - If the honorable member wants to interject, he might at least do me the courtesy of not sitting immediately behind me, because it is difficult to speak-when one is subjected to a stream of interjections from behind. I do not wish to introduce any heat into this discussion, or to strike sparks from the anvil of the honorable member's feelings.


Sir William Lyne - The honorable and learned member wants to strike below the belt.


Mr McCAY - I do not know why the honorable member is so worried about this matter.


Mr McDonald - Why is the honorable and learned member worried about it?


Mr McCAY - I am not in the least worried. I have fought and lost, and I have fought and won, in connexion with this Bill. I have borne my beatings as cheerfully as I have taken my successes, and I have not quarrelled with other honorable members because I have been beaten.


Mr Spence - The honorable and learned member is very much afraid of the Committee.


Mr McCAY - I am not afraid of the Committee. I cannot understand the extraordinary zeal on the part of some honorable members to get to the Committee.


Mr McDonald - The honorable and learned member changes his views very quickly.


Mr McCAY - I do not think the honorable member can point to any instance in which I have changed my views.


Mr McDonald - What about the contribution towards the maintenance of the Australian Auxiliary Squadron?


Mr McCAY - I never changed my opinion, upon that subject - not so far as my memory serves me.


Mr McDonald - Does not the honorable and learned member remember the conversation we had ?


Mr McCAY - The honorable member is referring to a casual conversation over the billiard-table?


Mr SPEAKER - I must ask honorable members not to interject so as to interrupt an honorable member who is addressing the House. I would especially ask them to refrain from introducing matters that are absolutely irrelevant, and to which the speaker who is in possession' of the Chair cannot in the course of his speech reply. If honorable members will quietly listen to the honorable and learned member they will have an opportunity of replying to him later on.


Mr McCAY - To return to the subject, and to leave the digression into which I was drawn by the somewhat surprising statement of the honorable member for Kennedy, I would point out that the proviso in clause 48 reads as follows : -

And provided further that no such preference . shall be directed to be' given unless the application for such preference is, in the opinion of the Court, approved by a majority of those affected by the award who have interests in common with the applicants.

The key-note of the proposal is that, in the opinion of the Court, the majority of the workmen who are asking for preference shall be favorable to it. The Government proposal is that the following proviso should be substituted : -

The Court, before directing that preference shall be given to the members of an organization, shall be satisfied that the organization substantially represents the industry affected in point of the numbers and competence of its members.

The operative words are " substantially represents," and I shall have a few words to say in regard to their meaning. I must say that when I first saw the amendment circulated as an alternative to mine-


Mr Henry Willis - Was not the honorable and learned member's amendment adopted by the Committee?


Mr McCAY - Yes.


Mr Henry Willis - Then it has become the work of the Committee.


Mr McCAY - Yes, it was adopted by a majority of seven votes.


Mr Hutchison - Without proper discussion.


Mr McCAY - I do not agree with the honorable member. We had four days' discussion.


Mr Hutchison - Not upon that point.


Mr McCAY - I gave notice of my intention to withdraw my original amendment, and substitute another, certainly not in the form in which the proviso was finally adopted, but one embodying the same principle. Every honorable member had ample opportunity to consider it before it was adopted, and- certainly has had ample opportunity to consider it -since, and I do not suppose that any honorable member will contend that he has not so con- sidered it. When I first saw the Government proposal, and noticed that it once more made a concession, at any rate to the views of myself and others, I wondered what kind of reception the Government amendment would have had if it had been proposed by me in the first place. If I had suggested that a preference should be allowed to an organization substantially representing an industry in point of numbers and competence, I question whether I should not have been told to trust the Court. I remember that when an earlier amendment of mine regarding the political character of unions was under consideration, it. was pointed out at one moment to those who were inclined to agree with me that after all the Government proposal was very much the same as mine, and that they might as well support it, and- the next moment it was pointed out that they could not support my proposal because it was so different. I dare say we shall hear something of the same kind on the present occasion. The Government propose that the Court shall be at liberty to give preference to an organization, when satisfied that it substantially represents an industry. I do not quite understand what " substantially represents " means. I take it that the whole question would be left to the discretion of the Court. The expression means very little more than that. It means, once more, " trust the Court." If it means that, until a majority of the workmen support or approve, preference shall not be given by the Court, then the Government proposal says, in less definite words and in vaguer language, the same thing as my amendment. I do not suppose that the Government would for a " moment accept that view, nor do I suppose that the Government mean that. Their amendment must mean something substantially less than my amendment as it appears in the Bill. It means, apparently, that the Court will be called upon to decide what constitutes " substantial representation in numbers and competence." That is to say, the numbers of the organization must substantially represent the' industry affected, and the competence of its members must also substantially represent it.


Mr Spence - What more, does the honorable and learned member want?


Mr McCAY - If the Government proposal means as much as does my amendment, . I desire no more. But it does not mean as much, otherwise the Ministry would not propose it.


Mr Watson - We say that the amendment of the honorable and learned member is unworkable.


Mr McCAY - In other words, the Government affirm that unionists can never secure the approval of a majority of those interested in any industry. If that be so, I hold that they should not be granted a preference. Rightly or wrongly, I am very definitely of opinion that it should be essential to the granting of a preference to unionists, that at least the Court should believe that a majority of those concerned in the industry affected desire such a preference.


Mr Hutchison - How would the honorable and learned member secure the opinion of the majority ?


Mr McCAY - I shall deal with that matter at a later stage. At present, I am discussing the proposal of the Government. I would remind the House that in New Zealand, the Court has always proceeded upon the principle that it was necessary ' that a majority of the employes interested in any industry should ask for a preference to be extended to them before any such preference was granted. If in New Zealand the Court finds it possible to determine when the employes who desire that a preference shall be extended to them constitute a majority of those engaged in an industry, I must confess that I am unable to understand why the same result- cannot be achieved in Australia. I shall point out the reasons for my belief in a minute or two." What does " substantial " representation mean ? I do not for a moment suppose that it means as little as is conveyed in some comments by the right honorable member for East Sydney, which appear in the Argus of to-day, and in which he points out that it has been held by a Court that a house was in " substantial " repair, notwithstanding that its walls were in very poor condition. But let us take a specific instance. Does the Prime Minister think that Mr. McGarry substantially represents the electorate of the Mumimbidgee in the Parliament of New South Wales?


Mr Watson - I think so.


Mr McCAY - The Prime Minister asserts that Mr. McGarry substantially represents the electors of the Mumimbidgee ?


Mr Watson - I do.


Mr McCAY - Mr. McGarrypolled 1,538 votes out of 8,111 electors upon the roll, and out of a total of 5,171 votes recorded.

In other words, he received 30 per cent, of the votes that were polled and 19 per cent, of the votes of the electors whose names appear upon the roll. In his case the number of voters upon the roll would correspond with the number of persons employed in an industry. Consequently, the Prime Minister argues that 19 per cent, of those engaged in an industry would substantially represent that industry. I say that it does not.


Mr Watson - It is not a question of what the Prime Minister thinks, but of what the President of the Arbitration Court would say.


Mr McCAY - I was waiting for that admission. In other words, under the proposal of the Government we have got back to the position that we are required to trust the Court without imposing any limitation upon its action. If the Court were to declare that 19 per cent, of those engaged in an industry substantially represented that industry, I should not agree with it. The N words " substantial " and " substantially " are vague words, which we never employ in an Act of Parliament if we can avoid them. The effect of their insertion in this clause would be to vest the Court practically with a discretion to say that " substantial representation " exists in any industry, unless that representation was obviously trivial or frivolous. Under the Government proposal, almost anything might be upheld as " substantial representation." But I would point out that, should an appeal be made from the decision of the Arbitration Court to the High Court on the ground that "the former has held that certain representation was " substantial," whilst those immediately concerned, against whom such an award had been made, did not think so, the question involved would be one of fact, and not of law. I repeat that under the amendment foreshadowed by the Government it would be left absolutely to the Arbitration Court to declare what was " SUDsantial representation," and what was not. It is easy to conceive that a course of decisions might be given producing a result which would cause the Court to regard as substantial sets of circumstances which none of us would ever dream of describing by that term. I claim that a limitation which leaves the Court practically unfettered is no limitation at all. Honorable members are aware that the form of the Government proposal was decided upon some .weeks before it was circulated. I did not receive a copy of it, although some honorable members did. I do not wish to speak at any greater length. No doubt a number of honorable members will address themselves to the question, and the alternative proposals before the House will meet with full discussion. Each side will be sure to point out the errors of the other side, and my amendment will, doubtless, be subjected to severe criticism. I" trust, however, that it will not be subjected to destructive criticism, because I venture to think that, after all, it expresses as reasonably, fairly, and definitely as is possible in matters of this kind, the views held by the Committee at the time it was made, and the opinions which its supporters still entertain. I start by postulating that from my stand-point it . is essential to the exercise of the commonest fair-play that a majority should be in favour of the extension of a preference to them before any such preference is granted. I protest in the strongest terms at my command, and will protest by my action »as well as by my voice, against any system which will allow minorities to control the destinies of majorities, especially the industrial destiny of majorities, because that is more important than is the mere determination that majorities shall rule in political affairs. As a rule, political matters touch us only indirectly. They may affect us very vitally, but almost invariably they do so in an indirect manner. But we shall strike at the root of the livelihood of a very large number of the people of Australia if this preference is granted without a limitation to the effect that a majority of those concerned in the industry affected shall first declare themselves in favour of such a preference. At the very least, I claim that if we are to establish a rule of this kind, we should say to the Court, " It shall be a majority rule, and not- under any circumstances a minority rule." I am satisfied that the great bulk of the people of the Commonwealth believe that such a limitation is essential, and that it is only from a limited section that protests against it are forthcoming. We have been told that my amendment constitutes a menace to unionism - that it strikes a blow at its fundamental principles. I entirely dissent from that view. I quite agree with the right of unions to do their work in the way they think best, and to obtain, by proper constitutional means, everything that they can. If they can induce a majority of the elec- tors of Australia, in the expression. of their wishes at the ballot-box, to agree with their town views,and if, as a result, I am left in a minority, I shall not quarrel with majority rule, i am perfectly prepared to apply to myself the same rule that I wish to apply to others. But I will not agree to what is practically the establishment of minority rule under any circumstances whatever. It has been said that my amendment is not workable. The following are its exact words - and I must apologize to the House for repeating them, but apparently the Prime Minister suggests that the question involved is one of wording-


Mr Watson - I said that the amendment of the honorable and learned member is unworkable.


Mr McCAY - Then it is not the wording of my amendment with which the Prime Minister quarrels, but its working possibilities. I suppose that he means that it would never be possible to secure such a state of affairs as would induce the Court to think that a majority of those affected by the award were in favour of a preference being given to the organization.


Mr Kelly - He will not trust the Court in that case.


Mr McCAY - No; he can trust the Court only in matters in which its operation can move in the direction of his own desires, and not against them.


Mr Poynton - Will the honorable and learned member show how his proposal could be carried out?


Mr McCAY - I shall give one or two cases in which it could not fail to 'work. I shall take such authorities as the honorable member for Darling, and the- Minister of External Affairs.


Mr Poynton - They represent only two instances.


Mr McCAY - The honorable member asks me' to show how my proposal could be carried out. and when I begin to quote cases in relation to which it would certainly operate he remarks-" Those are only two instances." He anticipates my being able to answer his questions, and that being so I have done something towards proving that which it was prognosticated I should not be able to prove. The honorable member for Darling tells us that the vast majority of those connected with sheep shearing are members of the Australian Workers' Union. That being so, when that union goes to the Court and asks for a preference to members of the organization it will not have the least difficulty in satisfying the Court that it represents a majority of those concerned, and that the preference may safely be given.


Mr Spence - How would it prove that?


Mr McCAY - I have not said that it has to be proved by such evidence as is required in an ordinary Court of law. The Bill provides that the Court may inform itself in practically any manner whatever. If the union produced the statistics which the honorable member says it is able to produce - if it showed that it had five-sixths of the shearers of Australia within its ranks, it would have no difficulty whatever in satisfying that impartial Judge whom the honorable member is so willing to trust in all other matters, that there was a majority of those concerned in favour of the application.


Mr Hutchison - It would have to prove how many did not belong to the union.


Mr McCAY - The evidence I have mentioned would satisfy any Court. Those who desired tq dispute the conclusions which the Court was asked to draw from the statements submitted by the union, would have to bring forward remarkably strong evidence, and prove up to the hilt that the statement was not true, before the Court would disregard it.


Mr Hughes - On whom would the onus be thrown?


Mr McCAY - Upon those who applied for the preference. The honorable and learned gentleman, as a lawyer, knows well enough that the burden of proof may be shifted from time to time during the hearing of a case, and that the prima facie evidence to which I have referred would forthwith shift the burden of proof on to those who objected. The Court will not be bound by the ordinary rules of evidence.


Mr Poynton - I venture to say that even if the honorable and learned member had nothing else to do for twelve months he could not tell us how many shearers there are in Australia.


Mr McCAY - Perhaps I should not be able to state the exact number, but I should be able to give it within, at all events, a few hundreds.


Mr Hutchison - We will give the honorable and learned member a margin of 500.


Mr McCAY - A margin' of 500 or of even 1,000 would not be sufficient to affect the question.


Mr Watson - It might affect a majority.


Mr McCAY - In the case under notice the number of the members of the organization is so overwhelming that such a margin would not in any way cause injury to the majority. The honorable, member for Grey speaks of the necessity there would be to prove the number of shearers in Australia. Does he think that there would have to be a muster of the shearers, as well as of the sheep, in order that a count might be made to satisfy the Court?


Mr Glynn - One could prove a majority although he had no knowledge of the total.


Mr McCAY - Exactly. Let me refer now to the Federated Seamen's Union. The Minister of External Affairs told us that, with the exception of the waterside workers at a few small ports, practically every one concerned in Australia was a member of that union. IT that be so, there would be no difficulty in proving that the application for a preference was supported in that case by a majority of those con- cerned. Let us take another case in which the members of a union do not represent a majority of the workers in the industry to which it applies. Let us' take a case in which it is doubtful whether the organization, although a large one, represents a majority of those affected. To begin with, I would point out that it is more difficult to ascertain the exact number of persons concerned in the pastoral industry, and that relating to transportation by land and sea, than it is to discover the number engaged in any other calling, because both occupations are more nomadic than is any other. But in those cases the difficulty has already been obviated by the praiseworthy efforts of those who have been concerned in forming unions relating to them. Let us deal with other industries in which the occupation is more localized. I take it that there would be no difficulty in ascertaining, for example, the majority of railway employes or of those engaged in the coal -mining industry. The coal mines of Australia are situated in a limited number of localities, and it would be the easiest thing in the world to ascertain the majority in the case of those employed in them. I come now to the position of gold miners. We have a certain unascertained percentage of men engaged in that industry who are working on their own account. When I say that the percentage is unascertained, I mean that it is not quite accurately ascertained. Speaking from experience gained by a life-time spent on the gold-fields, I venture to say that it would be possible to ascertain with comparative ease the majority-


Mr Poynton - It would not; and I know as much about the gold-fields as does the honorable and learned member.


Mr McCAY - I dare say; but I am merely speaking of what has been my own experience. I cannot say what are the results of the honorable member's experience in this direction ; but my experience is, first of all, that the number of men working on their own account is small, as compared with the number employed on wages. There would be practically no substantial difficulty in ascertaining the number of gold miners employed by others, and those who were working for themselves would not be concerned by an award, because they would be neither employers nor employes. We should find that in every industry there would be no substantial difficulty in carrying out my amendment. The clause does not say that a majority of those concerned in the industry in Australia must approve before an award may be given, it simply' says that the application shall be "approved by a majority of those affected by the award." Some ingenious individual may possibly say that a man in Western Australia might be affected by an award applying to Victoria and New South Wales, and that therefore he would have to be included in the total before the majority could be ascertained. I venture, with very little hesitation, to differ from that view of the position. On matters relating to the construction and the interpretation of the English language no one can speak with absolute certainty, because it lends itself, to a very great extent, to the ingenuity of those who love puzzles.


Mr Hutchison - What about the common rule ; it affects the honorable and learned member's argument ?


Mr McCAY - I shall come to that point presently ; but, to parody Sir Boyle Roche's statement that a man cannot be in two places at once unless he is a bird, I would point out that I cannot deal at once with two aspects of the case. I assert, with" practically no hesitation, that a man in Western Australia would not be affected by an award which applied, say, to Victoria and New South Wales. He might be subsequently affected by the award, but the clause does not require that there shall be a majority of those who "may" be affected, but a majority of those who "are" affected by the award. The widest inter- pretation which the Court could give to my amendment would be one saying in effect, " We want a majority of those within the area over which the award "is to extend." If the award extends over Australia - assuming that the Constitution will allow it to so extend ; and that, of course, is another matter - we need the consent of a majority of those employed in the industryaffected throughout Australia. If the award extends over only two States, we want the approval of a majority of those concerned in the two States. If it can be limited to only one State, as is conceivable, though I do not think it will be, we want a majority of those concerned in that State; and if it be limited to specified localities, we want .a majority of those concerned in the localities specified.


Mr Fisher - The honorable and learned member is asking for more than is asked under the Electoral Act in connexion with the election of members of Parliament. Hardly one member of the House was returned by an actual majority of his constituents.


Mr McCAY - I think that there are one or two exceptions; but it must be remembered that the Bill asks for a great deal more in other respects than is asked for by the Electoral Act. The Electoral Act does not directly affect any man's living, nor do most of the laws passed by this Parliament affect the public in the way in which this Bill will affect them.


Mr Webster - Why ask impossibilities?


Mr McCAY - I am not asking impossibilities. I have pointed to a number of cases in which I think it is obviously possible, and some in which the result has been actually achieved. All that is necessary is to place before the Court the facts already ascertained. My own view of my amendment is that where a common rule is not asked for, the proviso will apply on lv to employes and employers who are parties to the claim. It will practically apply only to the workshops or industries in which are engaged the actual parties to the dispute, and those concerned in it. It is possible to take the other and wider view which I have mentioned, but the locality to which the award extends is the maximum area to which the amendment will apply, and the area within which the consent of the majority will be required. My own view is that where a common rule is not asked for, it will apply practically only to the shops, factories, and so on, that are concerned, and the persons connected with them as employers or employes. If my view be wrong, the wider view still leaves the provision practically feasible, and by no means difficult of achievement. We do not desire to make preferences obtainable in a particularly free, easy, and accessible manner - to quote a phrase well known in Victoria a few years ago. We desire to have proper safeguards, though there are some safeguards now. If a common rule be applied for and granted, it will extend over a given area, and undoubtedly the preference granted in that award and over that area should not be allowed unless the majority of those concerned are, in the opinion of the Court, in favour of it. That provision will prevent the giving of a preference to an organization which is in a minority, and has opposed to it an outside majority. That is a case in which a preference should not be given. I have no fear but that the amendment will be found to operate with comparative ease, with reasonable efficacy, and certainly with no more difficulty than the importance of the subject makes inevitable. We have had before occurrences similar to the present state of affairs in connexion with this Bill. I would remind the House that when the common rule was under consideration, I proposed to limit its application to the cases in which I thought the real reason for a common rule exists, the cases in which there is competition. The Government would not accept my amendment, and passed a modification of it. Then there was a further amendment with reference to the political character of unions and organizations. The Government would not accept that, but proposed a modification of it. They had to accept the modification in exactly the words of my proposal, except that they altered the point at which, the operation of the sub-section began, and they, did that only so that they might carry the Bill in something like its present form. I would also remind the House of the circumstances under which this recommittal is a'sked for, and of the circumstances which have arisen since- the amendment was carried to limit preferences to cases in which a majority of those affected approve. When my amendment was proposed, the Government simply announced that they could not accept it, and said no more ; but it was carried by a majority of five votes. Two honorable members were absent, who, so far as I can judge, would, had they been present, have supported the amendment. The Government then reported progress, and said that they would consider their position. Two or three days later - I think on the following Tuesday - the Prime Minister informed the House that he would ask leave to recommit the clause, in order to permit honorable members to reconsider their determination. Not a word was then said about an alternative proposal. Later came the amendment relating to the political character of unions, which the Government carried in the form they desired by a majority of one vote, with the kind assistance of the "bridge-builders" in this corner of the Chamber. The Prime Minister warned the Committee that that amendment was vital, not only to the Bill, but to the Government; that the Government would resign if it were carried. In answer to the honorable and learned member for Corio, he stated in so many words that if the amendment were carried in the form proposed by me, and not in the form proposed by himself, the Government would resign. That threat had its effect. There was an undoubted cracking of the. whip. In my limited parliamentary experience I have never heard the whip cracked more loudly under similar circumstances than it was cracked on that occasion. But the cracking was effective.


Mr SPEAKER - Does the honorable and learned member think that this has anything to do with the question ?


Mr McCAY - Perhaps I may refer to the matter to fix the date of the occurrence. The Prime Minister then, and not until then, announced that this proposal also was vital to the Government. That was announced, I think, on a Saturday, but I do not know the day of the week. At any rate, it was after the division on' the clause relating to the political character of unions that the Prime Minister announced this issue to be vital to the existence of the Government.


Mr Wilks - The Prime Minister made an announcement at the' table in answer to my remarks, when the amendment of the honorable member for Darling Downs was inserted. _


Mr McCAY - That is so, but it was afterwards that, for the first time, we heard that this particular issue was vital to. the existence of the Government. What does that mean under "the circumstances? It means that the amendment, which was carried on its merits, apart from all other considerations, is now to be levered through by means of other issues. It may be that these are issues of importance; I do not know. It is always a matter of considerable importance as to who shall control the administration of a great country like Australia; but that is not a matter qf importance, as compared with the much greater interests which I think are involved in such a question as that now before us, in relation to the people of Australia.


Mr Batchelor - The whole thing is only being used for Opposition purposes.


Mr McCAY - I beg, with the utmost respect, to absolutely contradict the Minister of Home Affairs.


Mr Watson - The opposition to- the Bill right through has been on that ground.


Mr McCAY - It was the Government who threw out the challenge, and I never from first to last, throughout the whole of the debates, have said a single word or done a single thing, except in relation to the Bill itself.


Mr Watson - They have been very careful on the other side.


Mr McCAY - I have never discussed these matters, except in relation to their merits and their effect on the Bill and on the community. It was the Government, on the da'te I have mentioned, who forced this issue upon us, so that we had to take it up. Must I, because the Government chose to take up that attitude, be debarred from exercising my judgment as to what I think ought to be done with this measure? The Government have thrown down the glove.


Mr Hughes - Poor little lamb !


Mr Spence - The honorable and learned member for Corinella is coming out in his true colours.


Mr McCAY - I do not know what the honorable member for Darling means by saying that I am " coming out in my true colours." If the honorable member means that I shall support the clause regardless of what the Government propose to do, he is correct. I do not care what attitude the Government take .on the matter. I am going to vote for the clause as it stands, as against the amendment of the Government ; I believe the clause to be right, and the amendment now proposed to be wrong.


Sir William Lyne - The honorable and learned member is going to vote against allowing us to go into Committee to consider the Bill.


Mr McCAY - I am not going to do anything of the kind. The honorable member for Hume has made that assertion about six times, but it does not gather force by repetition.


Sir WILLIAM LYNE (HUME, NEW SOUTH WALES) - I think it does.


Mr McCAY - There, again, I differ from the honorable member ; I have had to differ from him before, and may have to do so again. I trust, however, that in all our differences of opinion, I, at any rate, shall never be any crosser than he is, or appears to be, on the present occasion.


Sir William Lyne - The honorable and learned member is always " on the cross."


Mr McCAY - I do not in the least degree understand what the honorable member for Hume means. I suppose the honorable member is endeavouring to cast some reflection on me, but what it is I do not understand. However, from some people reflections are more like compliments than injuries.


Sir William Lyne - I always feel like that when reflections are made on me by the honorable and learned member.


Mr McCAY - I do not recollect that I have ever passed reflections on the honorable member since I have been in this House.


Sir William Lyne - Only on three or four occasions.


Mr McCAY - All I have done is to protest against his interjections. I do not believe that before to-day I have said one word about him personally in this House, and, Mr. Speaker, if I can manage to exercise good sense, I purpose never to say a word about him again. My single sin will, I hope, to some extent be atoned for by my previous comparatively good conduct, and by my subsequent absolutely good conduct. If I have said anything to hurt the feelings of the honorable member for Hume, I am very sorry. The Government, after deliberation, actuated by I do not know what motives - though I have no doubt they were very proper motives - announced through the Prime Minister, outside the House, that they proposed to make this issue vital. The »nly object I could see for such an announcement was that of influencing the votes of some honorable members who had supported me on a previous occasion. The only object I could see was that of inducing those honorable members to vote against me on the present occasion; there could be no other object to be gained. I have seen it stated in the press that that object has been achieved; that the Government are now assured of a majority against my amendment, of anything from two upwards. As to that I know nothing ; I do not profess to be a master of figures in that particular aspect, or indeed in any aspect. But I do say that the Government, having reported progress and taken four 'days to consider their attitude, and having deliberately told the House that they would give the Committee an opportunity to reconsider the proposal, without . any announcement as to making this matter vital, they have no right now to turn round and take their present stand. We, on ibis side of the House, whether we belong to the Free-trade or the Protectionist Party, are taunted with using this clause as an engine for attacking the Government. But that taunt comes with the worst, of grace from those people who, on second fh-jnght, and not on first consideration, make this a vital matter, and who now say, " We will try to force this proposal through by the power and prestige of the Government." What could we do except what we have done? We believed in' the clause, as amended, and we do so still. The Government never suggested, in the first place, that they were going to make the carrying of the amendment vital-; but now that, on second thoughts, they have done so, what can we do but adhere to the opinion we formed in the first place, and have held all along, namely, that this clause should remain as it is, and not be altered in the direction asked by the Government. If the Government choose to make the issue viral it will be an unfortunate incident.


Mr Groom - The Prime Minister . did announce, according to the report in Hansard, that they regarded the issue as vital.


Mr McCAY - The Prime Minister never said that he regarded the issue as vital to the existence of the Government.


Mr Groom - The Prime Minister said, according to Hansard, that the amendment cut right to the heart of the provision.


Mr McCAY - The Government said that the amendment would mean a great change in the Bill, but it was never s;:id that it affected the existence of the Government. That is the point I have endeavoured to make clear all along.


Mr Webster - Why not allow the Bill to be recommitted?


Mr McCAY - What difference would that make? Is not the honorable member, with myself, able to speak with as much freedom now' as we should on recommittal ? What object can there be in a recommittal ?


Mr Webster - What is the object of the honorable and learned member ?


Mr McCAY - My object is to settle the matter as promptly as possible.


Mr Watson - That is "too thin."


Mr Hughes - The honorable and learned member for Corinella is going fishing, and he thinks that a big fish will snap at this bait, whereas it could not be caught by any other.


Mr McCAY - The familiarity of the Minister of External Affairs with seafaring matters enables him to indulge in metaphors which we land-lubbers cannot understand. According to Hansard, the Prime Minister, before the amendment was put, said -

The Government consider that on agreeing to the amendment suggested by the honorable and learned member for Bendigo, we have gone quite as far as, those who favour this clause can be expected to go, and I, therefore, earnestly ask honorable members to reject this amendment.

That is the whole of the Prime Minister's statement, prior to the division.


Mr Higgins - The honorable and learned member for Corinella asked the Prime Minister not to make a speech on that occasion.


Mr McCAY - I 'did; and that was because I made no speech myself.


Mr Watson - Yet the honorable and learned member claims that this issue has been well discussed.


Mr McCAY - So it has been.


Mr Watson - Not this amendment.


Mr Hughes - It has never been discussed at all.


Mr McCAY - The principle involved has been discussed.


Mr Watson - The principle of preference only.


Mr McCAY - No; the principle of the majority rule.


Mr Spence - The honorable and learned member is now burking discussion.


Mr McCAY - I do not seem to be burking either discussion or interjections.


Mr Spence - The honorable and learned member, moved his amendment without speaking himself. .


Mr McCAY - I know I did, because my amendment was submitted immediately after a division had been taken. I gave notice of two amendments. The Government accepted one, and we discussed the

Other, but as soon as one was agreed to by the Government-


Mr Spence - Because the honorable member slipped it through, he is now frightened to have it discussed again.


Mr McCAY - I am not in the least degree frightened. Nothing can be slipped through in the House, any more than in Committee. Undoubtedly there will be a full attendance of honorable members in the House to vote one way or the other. We can decide now, just as well as at any other time, whether majority rule is to be provided for in the Bill. I do not understand the desire that is being evinced by the Government for delay. I always understood that Governments were anxious to get on with the business and not to delay it. What I have previously mentioned was all that the Prime Minister said before the division took place. After the division, he moved that progress be reported, and said -

The Government regard the amendment that has just been carried as of very serious import indeed. I feel that it cuts right into the heart of this provision, and, therefore, it is only proper that the Government should have an opportunity to consider how far it affects the general purposes of the measure

He did not say how far it cut into the principles of the measure - and how far they may ask honorable members to reconsider the decision just given.


Mr Spence - Now they are asking honorable members to reconsider their decision.


Mr McCAY - Yes; and, I say, reconsider the decision, by all means, as we are doing at the present moment. Then on the following Tuesday the Prime Minister said -

When the Committee, on the occasion of its last sitting, decided in favour of the amendment of the honorable and learned member for Corinella, I asked that you, sir, should report progress, and thus give the Government an opportunity of considering the effect of the alteration that had just been made in the clause. I stated then that in my opinion - hurriedly arrived at - the proposal cut into the heart of the clause, and affected materially the general . purpose of the measure. The Government still hold that view.

They had considered it. He continued -

We think that the clause in its present shape absolutely fails to meet the desires of those who are anxious to see this Bill passed into law in an effective shape. We propose to ask the Committee to reconsider that position so soon as we arrive at the recommittal stage.

Well, we have now arrived at the recommittal stage. The Prime Minister then went on to say that he did not think that the question of majority rule had been argued, although preference to unionists had been discussed. He concluded -

We shall certainly give honorable members an opportunity when the recommittal stage is reached, of reconsidering the position at which they arrived on Friday last.

There was not one word about the matter being vital to the Government. That is my complaint. Upon further consideration, weeks after the amendment was carried, and after they had made something else vital, and had won in consequence, the Government announce, not to the House, but to tha country, that they are going to make this a vital question. Then they turn round and accuse honorable members of using as an engine to defeat the Government, the very thing which they admit must be an engine of destruction if they are defeated upon it. I cannot understand such an attitude on their part.


Mr Poynton - The honorable and learned member does not want to understand it.


Mr McCAY - The honorable member is welcome to his opinion. He is endeavouring with some considerable lack of success to act the part of the thought reader.


Mr Webster - The amendment of the honorable member was never discussed by honorable members-


Mr McCAY - It is being discussed now.


Mr Poynton - It will be discussed by the public outside.


Mr McCAY - I trust that it will be, and the more it is discussed outside, the better I shall be pleased. The more the public realize the meaning of this clause without- my amendment, the more I shall be satisfied as to the result. The suggestion, "You look out for what is going to happen when you get outside "-


Mr Poynton - The honorable member will be in a minority then.


Mr McCAY - Perhaps the honorable member may find himself in a minority. We sometimes think that the views of our constituents are the same as our own, when they are not. It is very unfortunate for the member concerned in such a case, but no one should be induced to change his carefully formed opinions because he thinks that the majority of his constituents may not approve of his conduct, in a matter regarding which he has given no pledge to his electors, or to his caucus, if there is one, but with respect to which he has been left to use his own judgment. I have expressed "over and over again my adhesion to the principles of conciliation and arbitration, and I have acted up to that profession. I have, however, left myself quite free to deal with these important matters of detail to the best of my own judgment. If my constituents do not agree with me, I must bow to the will of the majority ; but I am now objecting to bow to -the will of the minority.


Mr Spence - The honorable member has with him all those who are opposed to the Bill.


Mr McCAY - I cannot help that.


Mr Watson - It has been so on almost every occasion.


Mr McCAY - I have voted for the Government on some occasions. I have voted against them on other occasions, because, according to my view, they have sought to go too far. It may be unfortunate that I cannot always see eye to eye with "them ; but just as I do not quarrel with them for adhering to their views, they should not quarrel with me for standing to my own. Surely, if they are justified in supporting with all their power the proposals which they have put forward, I am as fully justified in opposing with all the force in my power those with which I cannot agree. If the Government are justified in making this a vital matter, surely I, as a private member, am at least justified in continuing to oppose their proposal, notwithstanding the condition which they add to it. I regard this matter as of far more importance than the consideration whether the Govern-, ment shall remain in or go out of office. I am not under any tie of allegiance to the Government. I crossed to this side of the House when the Deakin Government were beaten upon a matter in which I voted with them, and in which I think they were right. I crossed to this side because I thought that the members of the Labour Party, who now -sit on the Government side, were wrong.


Mr Poynton - And the honorable and learned member has. voted against them ever since.


Mr McCAY - I have voted against them whenever I thought they were wrong, and I shall continue to do so. In the same way I shall vote with them whenever I think they are right, in regard to any measure they choose to bring forward.


Mr Poynton - The honorable and learned member voted against many of the provisions introduced in the Bill by the Deakin Government.


Mr McCAY - Yes, no doubt ; but I have not voted against anything which I had previously supported. I was more concerned about this Bill than about the fate of the Government. It happened that I agreed with the Deakin Government on the question of including railway servants within the scope of the Bill. Just as others voted against them because they did not agree with them, so I voted with them because, for reasons I then gave, I thought they were right. I am much more concerned as to the effect upon Australia of this Bil) than as to the effect upon the House of Representatives of the adoption of any particular amendment. The Government think that certain proposals are vital to the Bill, and those who oppose these provisions are charged with being opponents of the measure. This is one of those occasions when the Government are proposing something which should be opposed on principle by honorable members who do not agree with it. Perhaps they hope that the Court will whittle it away to nothing. Some of the friends of the Government are only supporting the proposal as a substitute for my amendment, because they think that it will present a way out of the difficulty in which they find themselves. This is apparently another bridge. I do not know upon what foundations it is built. I am not aware whether political bridges require engineers to build them, just as do bridges of the work-a-day world, nor do I know - if they do require them - whether such engineers are in existence.


Mr Spence - Is not the honorable and learned member building a bridge himself ?


Mr Webster - Yes. He is building a bridge to get into office.


Mr McCAY - Even from his limited experience of politics, the honorable member must know that even if he thought such a thing, it is not usual to say it. I may add, however, that his assumption is not correct. . The honorable member for Hume laughs. I am certainly not as anxious to get into office as some honorable members were reluctant to leave it. My Ministerial - experience was not such a happy one that I desire to rush into office. Certainly it would not induce me to accept office at the sacrifice of any principle. To taunt me in that way, especially as the Government have thrown out the challenge, is very extraordinary. Am I expected to support the proposal of the Government merely because they choose to make it vital to their existence? Even if they withdrew the statement that they regard it as vital, I should still vote against it.


Mr Spence - Why all this trouble?


Mr McCAY - Because I cannot proceed whilst honorable members persistently interject, and invite me to express my opinion upon subjects which are more or less relevant to the question before the House - chiefly less.


Mr Poynton - Who put the honorable and learned member up to this procedure?


Mr McCAY - I thought of it all by myself. I actually possess sufficient intelligence to induce me to conclude that the present is as good a time to decide this question as is any other.


Mr Poynton - Did not the honorable and learned member consult anybody else?


Mr McCAY - No; but I told some honorable members that I intended to adopt the course which I am now following. , I did not even consult the honorable member who has interjected. I think I have said all that I desire to say upon this question. Summarizing my views, I regard this matter as one of very grave importance. I look upon the substitute offered to us by the Government for the proviso contained in the clause as it now stands as a ridiculously inefficient one.


Mr Webster - It is a very practical substitute nevertheless.


Mr McCAY - It is practical provided that it means nothing. If the Government proposal means anything substantial, it would be just as difficult for an industrial union to comply with it as it would be to comply with my amendment. But, inasmuch as it has no definite meaning, it might as well be eliminated. It is no limitation at all.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - It is as definite as is the phrase " equity and good conscience."


Mr McCAY - Exactly. The proposal offered to us represents a mere husk or shell, whereas my amendment is definite and workable, and should, therefore, be adhered to. I venture to hold that opinion notwithstanding the cracking of any number of whips, and notwithstanding any subsequent announcement which may be made by the Government concerning their attitude towards the amendment I am about to put before the House. I move -

That clause 48 be omitted from the clauses proposed to be recommitted.

Mr. WATSON(Bland- Treasurer).- It seems to me that the honorable and learned member has adopted a rather unusual course in this instance. During the whole of my parliamentary experience I do not recollect a single case in which a proposal on the part of any Government to have a clause of any measure reconsidered in Committee has been resisted. I do not remember one instance in which an attempt has been made to burke the discussion which must ensue in Committee, and to prevent any possibility of a settlement being arrived at.' The honorable and learned member has declared that there are two distinct alternatives before the House, . and that, therefore, no injury can result from taking a vote upon the Government proposal to recommit the Bill. But he is perfectly aware that those who stand apart from the interests of the Government, and from the interests of honorable members occupying the front Opposition benches, are actuated by a still higher consideration, if they believe in this Bill, namely, a desire to get it out of hand at the earliest possible moment, in a shape which will give effect to its purposes. I know that a number of honorable members opposite do not sympathize with those objects. On every occasion upon which the honorable and learned member for Corinella has submitted amendments he has had behind him the declared and emphatic opponents of the measure. Of course he has received a whole-souled support from those gentlemen, and in some instances to the detriment of the Bill he has succeeded in obtaining a majority in favour of his proposals.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - What is to prevent the matter from being discussed upon the amendment now before the House?


Mr WATSON - With his usual innocence, the honorable and learned member asks, "What is to prevent the question from being discussed?" Of course it can be discussed. But the honorable and learned member knows that there is no possibility of putting forward any further amendment unless we get into Committee. I ay, not in the interests of the Government, but of the measure itself, that more anxiety might have been exhibited to afford every honorable member an opportnity oof stating his views, and of giving effect to them in a practical way. I repeat that the procedure adopted by the honorable and learned member is a most unusual one. It is true that occasionally Governments, from what they conceive to be the interests of public business, have refused to vote for 'recommittals. But I reiterate that I do not remember an instance - certainly there has not been one in this Parliament, and I have no recollection of any in the New South Wales Legislature - in which an attempt on the part of the Government to obtain the reconsideration of a proposal in Committee has been resisted in the House. The honorable and learned member spoke of the cracking of the whip. He seemed very much exercised in mind because the Ministry have dared to state that they would regard the carrying of a certain amendment as vital to their existence. I admit that the honorable member was probably disappointed with the attitude of another Ministry which he supported, and which did not regard certain matters as vital to them. One of the criticisms most frequently levelled against the Ministry which he recently supported was that they regarded no proposal as vital until the last moment. Personally, I do not believe in making every question which arises vital to the existence of the Government. But, nevertheless, it must rest with those who are charged with the responsibility of carrying a measure through Parliament to say whether or not they will continue in office if it be altered to such an extent that it does not give effect to the purposes which the electors had in view. If Ministers did not exercise that right they would be unworthy of retaining the positions which they at present hold. The honorable and learned member for Corinella has declared that it was only upon second thoughts that the Government affirmed that his amendment was vital to their existence. In this connexion, I think that the language which I used upon the occasion when that amendment was carried was fairly emphatic. It is true that I did not use the exact phraseology which I afterwards employed. I did not say in so many words that the amendment was a vital one; but I said quite sufficient to indicate how seriously the Government regarded it. I said -

The Government regard the amendment that has just been carried as of very serious import indeed. I feel that it cuts right into the heart of this provision, and therefore it is only proper that the Government should have an opportunity of considering how far it affects the general purposes of the measure, and how far they may ask honorable members to reconsider the decision just given.

Surely those words were serious enough. So far as the cracking of the whip generally is concerned, I desire to say that it has not been cracked by the Government with a view to influencing the votes of honorable members, so much as with a desire to give a distinct intimation that, if we are to take the responsibility of this Bill, it must be passed in something like the shape that we desire. I now say distinctly that I am not prepared to remain in office and take the responsibility for a measure which, according to my conception, will npt be effective, especially if this provision, which, I contend, would be absolutely unworkable, be agreed to. The honorable and learned member for Corinella claimed that a discussion took place on his amendment ; but my reply is that the Committee did not discuss it. In a debate extending over three or four days we discussed the general principle of granting preference to unionists, but in hurriedly glancing over the pages of Hansard I have failed to find one reference in that debate to the detailed proposition which the honorable and learned member subsequently moved. Considerable argument took place on the question whether we should be justified in giving the Court power to grant preference to unionists; but there was absolutely no discussion on the point whether, if we gave the Court that power, we should insist on compliance with the terms set forth in the amendment.


Mr Groom - Was the amendment in print when the division took place?


Mr WATSON - It was not; and so far as I have been able to ascertain it was not discussed.


Mr Wilson - Whose fault was that?


Mr WATSON - The fault of honorable members themselves.


Mr Wilson - The fault of the Government who were in charge of - the business of the Committee.


Mr WATSON - We were no more to blame than were other honorable members. The debate had occupied several days, the amendment was submitted at a late .hour on the last day of sitting for the week, and there was a general desire to come to a decision. Had I thought that there was the slightest probability of the amendment being carried I should have asked that the matter be further considered, but I gave honorable members credit for possessing a clearer insight into the probable working of such a provision. I do not know whether the honorable member for Corangamite was referring to the printing of the amendment, but the fact that it was not printed was not due to any neglect on the part of the Government. The printing of proposed amendments is a matter to which the Clerk attends on behalf of honorable members generally.


Mr Wilson - No ; that is not the point which I had in mind.


Mr WATSON - I contend that the honorable and learned member for Corinella's amendment would be absolutely unworkable. I do not say that it would be unworkable in the sense which the honorable and learned member assumed - that it would be impossible to find a union having in its ranks a majority of the men engaged in the industry to which it related. In the great majority of cases, a majority of the men employed in a given trade or calling are within the ranks of unions relating to it; but the ground on which I urge that this provision would be unworkable, is that, in many instances, it would be impossible to prove with mathematical precision that which the amendment demands. It would be impossible to prove, in many instances, that the majority of the men engaged in a particular industry were members of a union. Take the case of the Australian Workers' Union, to which the honorable and learned member has referred. So far as we have been able to ascertain, in a rough and ready way, a very large majority of those usually engaged in shearing belong to that union, but who would be able to say how many were engaged in shearing, or might be employed in the industry on any given occasion?


Mr Spence - That is the difficulty.


Mr WATSON - The honorable member for Maranoa has followed, among other callings, that of shearing, and might desire at any time to resume that occupation. The honorable member for Moira has also been a shearer, and he, too, might desire to take a trip into the 'back country, and to follow once more his old calling. Are we to say that, in ascertaining the number of persons engaged in an industry for purposes of this kind, every man who may have been engaged in shearing at any time, and who, if the fancy seizes him, may ask a squatter for an opportunity to earn a few pounds at his old calling, shall be included in the count? The practical difficulty in the way of carrying out this provision would be such as to render it absolutely unworkable. Take the case of the wharf labourers. A fluctuation often occurs in the number of men working as wharf labourers, which is dependent not only on the number of ships that come into port and the quantity of cargo which they carry, but on the state of other trades and industries in and around the various ports. For instance, when I spent more time in Sydney than I do now, men used to flock to the water-side for employment when, business was slack in the trade which they usually followed. When there was no work obtainable at their ordinary avocations, quarrymen and other manual labourers used to accept employmen on. the wharfs, and thus supplement their scanty earnings. How would it be possible under the honorable and learned member's provision to compute whether or not the Wharf Labourers' Union actually represented a majority, not of those engaged in the industry, but of those who would be affected by the proposed award? Ill would be almost impracticable. Another instance may be cited. In many callings children as well as adults would he affected by an award. Boys and girls - apprentices, in some instances, and in others improvers, or boys and girls casually employed in factories - would be affected, and under the honorable member's amendment the Court would have to be satisfied that the majority df those affected approved of the application. It would be possible for an award to affect children by limiting the number of apprentices to be employed in' a particular industry. A limitation of the number of apprentices is one of the usual conditions embodied in the awards of the States Courts. It is therefore quite possible that the interests of all children employed in an industry might be affected by an award, and the Court would have to be satisfied, under the honorable and learned member's amendment, that the application for a preference was approved by a majority of the children as well as of the adults concerned. I take it that "satisfied" means that the Court shall be satisfied in the clearest and most unmistakable way that themajority of those affected have approved of the demand for preference.


Mr Mcwilliams - The honorable member does not object to the provision for a majority ?


Mr WATSON - No; the practice in nearly every case, in all the Arbitration Courts, has been to grant a preference only when the majority, reasonably ascertained, is in favour of such a preference. I am not so foolish as to anticipate that the practice laid down by the Arbitration Courts of New Zealand and New South Wales will be departed from by the Judge appointed to the Federal tribunal. Any one who imagines that the Judge in the Federal Court would lay down a new line of procedure - that he would grant preferences to unions which manifestly represented only a minority of those employed in the industry or in the district in respect of which the preference was asked - cannot have paid any attention to the general procedure under legislation of this kind. I contend that the objection to the honorable and learned member for Corinella's amendment, as a detail of preference - not as affecting preference as a principle - is that 'it would be absolutely impossible in a great number of. cases to prove that the majority of the industry concerned approved of the application. It does not mean only that a union asks for a preference. It will have to be proved that, allowing for any minority that there may be in the union, a majority of those affected by the award are asking for the preference.


Mr Groom - A majority of both employers and employes.


Mr WATSON - Yes, a majority of the persons affected by the award.


Mr McCay - The words used are the same as those used elsewhere in the Bill to signify a side.


Mr WATSON - The honorable and learned member's proposal goes further than those engaged in the industry, because there may be others having interests in common.


Mr McCay - That is a phrase of limitation, not of extension.


Mr WATSON - I do not know that it is bound to be so interpreted.


Mr McCay - It cannot be interpreted otherwise.


Mr WATSON - The intention of the honorable and learned member may bt: strictly honorable, but we have to consider the phraseology, apart from his intention.


Mr McCay - The same phrase occurs elsewhere in the Bill to describe one of two sides.


Mr WATSON - Yes; but in quite a different relation. I think that that increases the possibility of the provision proving unworkable. Even assuming that the interpretation of the honorable and learned member is correct, and that the Judges, who occasionally differ, will take the view that he does, we cannot expect the measure to work if, in every case where a preference is applied tor, a census of those engaged in the industry must bc taken before it can be granted. We might as well take the preference provision out of the Bill altogether, and make that a condition. The Government do not desire that preferences shall be granted to minorities. We have put forward an amendment as an alternative to the proposal of the honorable and learned member for Corinella, in which we ask that, before preference is granted, the Court shall be satisfied that the organization substantially represents the industry affected, in point of the numbers and competence of its members.


Mr Mcwilliams - What is the meaning of "substantially"?


Mr WATSON - We have been told by the leader of one of the Oppositions, whose opinion is backed up by the statement of the honorable and learned member for Corinella, that the word " substantially ' ' is vague, and conveys nothing to the legal mind. The right honorable member for East Sydney, in an interview which is published this morning, speaks of the word "substantially" as if it were an innovation, and had not been heard of before in legal circles. My honorable colleague, the Attorney-General, however, Has been good enough to put into my hands two or three instances in which the word "substantially" is used in reference to matters concerning, not merely property, but life and death. Section 470 of the New South Wales Crimes Act of 1900 provides that questions of law may, at the instance of the counsel of an accused person, be reserved for the consideration of the Court of Appeal -

Provided that no conviction or judgment thereon shall be reversed, arrested, or avoided on any case so stated, unless for some substantial wrong or other miscarriage of justice.

There the matter is leftto the Court, in the belief that the Judges will exercise reasonably common sense in interpreting the Statutes of the country. The interest at stake may be enormous, because where the Judge does not consider that the wrong done to the accused is substantial, the latter may have to suffer death. Apparently no other course was open to the Legislature than to leave it to the personal discretion of the Court to decide whether a merely technical error had been committed, or whether a substantial wrong had'been done to the accused. There is a similar proviso in section 471 of the same Act. Before a writ of error can be ruled out, it is provided that -

No judgment shall be reversed or avoided for any error unless some substantial wrong appears to have been done, or some other miscarriage of justice occasioned, by reason of such error.

In the rules of the Supreme Court in England there is another use of the word "substantial." Those rules are drafted and promulgated by the Judges, but, as the legal members of the House know, have the force of law. Regarding motions for new trial, the Annual Practice for 1904 says -

A new trial shall not be granted on the ground of misdirection, or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the Judge at the trial was not asked to leave to them, unless in the opinion of the Court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial.


Mr Mcwilliams - Is there not a wide distinction between substantial wrong and substantial number?


Mr McCay - The Courts interpret the word " substantial " very liberally. They do not require a great deal.


Mr WATSON - We propose that the Court must be satisfied that the persons applying substantially represent those engaged in the industry. One member of a union cannot be taken to substantially represent the whole body, nor could a dozen men be regarded as substantially representing those employed in a large industry. But if anything approaching a majority apply for a preference, the Judge may reasonably hold that they substantially represent all engaged in the industry.


Mr Groom - The amendment contains the words "substantially in numbers."


Mr WATSON - In numbers and competence - not numbers or competence. Both requirements are insisted on. The Court, if it followed the precedents which have been created in New South Wales and New Zealand, would be bound to interpret the words as implying a majority. In New Zealand it has been insisted that a. majority, so far as that can be reasonably ascertained, shall be shown to be in favour of the granting of a preference before it can be given. The difference between our proposal and that of the honorable and learned member for Corinella is that, in the one case, the Court might waive the mathematical demonstration of the existence of a majority, while, in the other, it would- be bound to insist on it. Under the proposal of the honorable and learned member, the Court could not dispense with rigid proof of the existence of a majority in favour of the granting of a preference, while, under our proposal, if they were reasonably assured of the fact, it would not have to be mathematically demonstrated to them. That is the only difference between the two proposals; but it is of great importance, so far as the practical working of the measure is concerned. The New Zealand Court, early in its existence, was asked, in the case of the Christchurch engineers, to grant a preference to a small union. In delivering judgment the President asked how far the union really represented the great body of men in the trade affected, and, as it was found that the members of the union constituted a minority of those employed in the trade, the preference was refused. I am reminded that the word "really" is practically the same as the word "substantially." The President, in making known the decision of the Court, laid down what, in my opinion, is a very proper rule. He said that -each case must stand upon its own merits, and that a claim must, in every case, be carefully scrutinized. He went on further to refer to other conditions which were necessary to safeguard a preference. He said that the union which sought such an advantage must be practically open to every person employed in the trade who desired to join it. That safeguard we have provided for at the instance of the honorable and learned member for Bendigo, and of the honorable and learned members for Ballarat and Indi. We have amplified the safeguards which exist under the New Zealand and New South Wales legislation. The principle proceeded upon in New South Wales in regard to the granting .of preferences has been exactly similar to that adopted in New Zealand. So far as I have been able to ascertain, the New South Wales Court has never granted preference to a union which did not appear to have a majority within the district to which it was to apply.


Mr Robinson - I will quote instances to the contrary.


Mr WATSON - The case of the saddlers has been quoted, but that was afterwards extended by means of the common rule. In the first instance the preference was granted, so far as my memory serves me, for a smaller district. It must be remembered, too, that in New South Wales and New Zealand there is no limitation on -the power of the Court to grant preferences. Preference to unionists was, on appeal, held by the Supreme Court of New Zealand not to require any specific wording in the Act, but to be the natural corollary of the main purpose of the measure as originally drafted by Mr. Reeves. It was said by Sir Robert Stout that -

In construing this Act, the aim of the Statute cannot be ignored. It does not, as I have said, propose to provide a means of settling disputes between employers and non-associated workmen. It has created a board in every district, and a Court, to settle disputes between associated workmen on the one side, and associated or single employers on the other.

He went on to say -

I am of opinion that the Court, having power to determine the " status of workmen," and the " class of persons " to be employed, has power to declare that trade unionists shall have a preference over workmen not belonging to a trade union.

It seems to me that Sir Robert Stout there recognised the true principle upon which measures of the kind are based. That is, they seek to. insure collective bargaining. That was the beginning of the possibility of effective compulsory arbitration - collective bargaining, and some responsible entity in the shape of a union to assist in the enforcement of the award. Preference has existed for years without arbitration laws amongst those trades, or in those callings where the unions were strong enough to enforce it. In my own trade - wherever I have worked, anyhow - the employes have insisted upon preference to unionists, and have always succeeded in obtaining it. I do not say that that state of affairs has existed in the disorganized country districts, but amongst the men employed in the large centres preference has always been insisted upon. In New South Wales at the present time about fifteen agreements giving preference have been arrived at between employers and employes, without the inter - Ivention of the Arbitration Court, except so

I far as their approval is concerned. Some j of these agreements have not yet been approved, because they have not reached that stage, but under these agreements between employer and employé preference has been voluntarily arrived at between the two parties.


Mr Mauger - There was a very important case in England recently.


Mr WATSON - Exactly. In all the voluntary Conciliation Courts set up in England preference to unionists is a sine qua non. Without that, it is impossible to even approach collective bargaining.


Mr Mcwilliams - That has been achieved without an Arbitration Court.


Mr WATSON - Of course, it has. It is no new principle. All we ask is that the Court shall be permitted to grant preference; not that it shall be compelled to allow unionists to debar others from obtaining employment, but that it shall have power, if the circumstances warrant, ito grant preference. Now, in New South Wales there is an agreement between the Pastoralists' Union and Machine Shearers' Union.


Mr Robinson - Is preference granted in that case?


Mr WATSON - Yes, and that is a case in which 'the amendment proposed by the Government wo'uld have a very beneficial application.


Mr Spence - That agreement not only gives the preference, but is compulsory.


Mr WATSON - The other agreements, under which preference is given, are those entered into between the Master Hairdressers and their employes, the Master Coopers and their journeymen, the Coastal Steam-ship Owners' Association and the Seamen's Union, the Laundrymen and their employes, the Pastrycooks and their employes, the Inter-State Steam-ship Owners' Association and the seamen, the Monumental Masons and their employes, Mort's Dock and Engineering Company and their workmen, the Fresh Food and Ice Company and their employés, some cigar makers and their employes, the Steam Collier Owners' Association and their seamen, the Tug-boat Owners and their employes, and some of the grocers and their assistants. In each of these cases the agreement, granting preference to unionists, has been voluntarily arrived at. I do not wish, at this stage, to say a great deal further upon this matter. As L have said all along, I regard the power of the Court to grant preference to unionists as essential to the successful working of the Bill. I contend that compulsory arbitration will be impossible unless unions are recognised, and they cannot be recognised effectively unless preference is allowable, and is, in most cases, granted. I contend that, without encouraging the unions to register and render themselves amenable to the Act, there is no possibility of bringing the measure to a successful issue. We might as well pass a measure with a view to running a railway to the moon, or something of that description, as expect to successfully work an Arbitration Bill without preference to unionists. Unless the unions have this encouragement they certainly will not give up their right to strike. This measure proposes to deny them the right to use the weapons they now possess, and it offers them nothing in exchange.


Mr Kelly - Does it not offer them something, even better than the power to strike - the power to compel preference?


Mr WATSON - The power to compel preference is not in itself better than the power to strike; but I say that without preference it is impossible to expect the unions to take any interest in compelling the observance of the awards. The honorable member must not run away with the idea, as no doubt his unpractical mind leads him to do, that this Bill will always mean help for the employes. It will not. In many cases in New South Wales a reference to arbitration has resulted in a reduction of wages.


Mr Kelly - And a certain percentage of strikes in connexion with such reductions.


Mr WATSON - I do not catch the honorable member's allusion. In some cases in New South Wales arbitration has not worked to the immediate advantage of the unionists, so far as the awards are concerned. I admit that even from the workmen's stand-point, it may be better to work, although under conditions involving some injustice, than to go on strike and lose a great deal more. I admit that from that point of view, and especially from the stand-point of the general community, it is better to have an Arbitration Act in force than to run the risk of repeated disturbances of trade. Those honorable members who refuse to intrust the Court with the power with which we are seeking to invest it are straining at a gnat and swallowing the proverbial camel. They would allow the Judge of the ArbitrationCourt to possibly injure the industries of Australia to such an extent that they would be absolutely crippled. The . Court, if it liked. under the power the Bill confers, could impose conditions of employment that would cause every employer to shut up his premises and result in every man now employed walking the streets. The Court could do all that, but it is not likely to do it. We do not hear honorable members trying to arouse the country bygeneral references to the excesses which tha judge might commit, by giving decisions which it would be impossible to carry out, but when they think that they can arouse class feeling, when they want to enter upon a class fight, some honorable members are seized with horror and fear at the idea of the enormities that might be perpetrated by a Judge placed in this position. I say, again, that the Judge will have the power, if he is foolish enough to exercise it, to cripple or suspend all the industries of Australia, and yet honorable members strain at giving him the power to grant a preference to unionists where they substantially represent the trade or calling in regard to which a dispute has arisen. That kind of reasoning does not appeal to me, and, as one who has some practical knowledge of the conditions that govern industry, at any rate, in New South Wales, I unhesitatingly say that if the clause is maintained in its present shape, the Bill will prove to be unworkable, and might as well be thrown into the waste-paper basket.







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