Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Wednesday, 10 August 1904


Mr ROBINSON (Wannon) - I had expected, from the attitude which, the Prime Minister first took up in regard to the amendment of the honorable and learned member for Corinella, that when honorable members were asked to reconsider their decision, they would be urged to strike out all limitations upon the power of the Court to grant preference. Judging from the statement the Prime Minister made on 24th June, I certainly anticipated that the principle of preference would be regarded as so vital, that any limitation upon it would be resisted.


Mr Watson - I did not say that.


Mr ROBINSON - I know that the Prime Minister did not say that"; but I think that it might have been fairly inferred, from what he did say, that any limitation, except with regard to the notice to be given to those affected, would be opposed. If the Government had come forward with a straight-out declaration that the principle of preference was essential to the Bill, and that they must have it in an undiluted form, those who are opposed to the Bill would have been moved to admiration. We are not, however, met with any proposal of that kind, but with another of those wishywashy back:down amendments which are designed to get the Government out of a difficulty. I am not willing to water down the amendment which honorable members adopted after the fullest and freest discussion upon the whole principle of preference. According to Hansard .a debate upon that point was commenced on the 21st June, and was continued on the 22nd, 23rd, and 24th of that month.


Mr Watson - Never a word was uttered with regard to the amendment ultimately adopted during the whole of that time.


Mr ROBINSON - Honorable members who took the trouble to attend the sittingsof the Committee and to listen to the debate, must know full well that an amendment of this nature was foreshadowed, and that it was circulated two days before it was moved.


Mr Watson - Not the amendment that was adopted.


Mr ROBINSON - I say that the amendment was circulated before it was submitted to the Committee.


Mr Watson - That is absolutely incorrect so far as the amendment ultimately adopted was concerned.


Mr ROBINSON - If the Government had declared that they would not have any limitation placed- upon the power of the Court to grant preference, and that they would insist upon having the tribunal left as free as in the case of the Courts of New Zealand and New South Wales, their attitude would have been a courageous one. but I think that the present proposal shows a great want of backbone. The suggestion made by the Government is one which will largely increase the difficulties of the Arbitration Court. What is the meaning of " substantially represent ?" The Prime Minister has been good enough to quote a number of text-books in order to show us the difference between his amendment and that adopted at the instance of the honorable and learned member for Corinella. He states that under the proviso, as it now stands, it will be necessary to demonstrate to the Court with mathematical accuracy the number of employes affected before preference can be obtained, and he states further that that difficulty will be overcome if the Government suggestion is adopted. I do not consider that the proviso in the Bill demands mathematical demonstration on the part of applicants for preference. It allows the Judge a considerable amount of latitude in arriving at a decision as to whether the applicants represent the majority of those affected. The proviso reads as follows : -

No 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.

That means - if it means anything - that a mathematical ' demonstration is not required. -The Court has merely to be satisfied that the union applying for a preference practically represents a majority of the employes engaged in the industry affected. We have been told that an Arbitration Act will not work satisfactorily in the 'absence of a provision relating to the granting of a preference. How is it that in the first State in the Commonwealth which adoped legislation of this character - I refer to Western Australia - an Arbitration Act has been operating successfully for a number of years, although it does not contain any such provision ?


Mr Carpenter - They are continually agitating for the granting of a preference there.


Mr ROBINSON - That may be .so. The fact remains that in Western Australia the .Act has been operating for five years longer than has kindred legislation in any other State of the Union, without any friction having been engendered.


Mr Carpenter - No.


Mr ROBINSON - I am aware that a considerable amount of friction arises when after an award has been given against a union, its members commence to abuse the Court.


Mr Kelly - That is what occurred in the case of the Australian Workers' Union.


Mr ROBINSON - The Prime Minister asserted that it was the practice of the New South Wales Court before granting a preference to unionists to insist that the union asking for preference comprises a majority of those engaged in the industry affected. I think that I shall be able to prove that his statement is inaccurate. Let me point to the case of the Broken Hill miners as an example. I used the same argument upon a previous occasion, but in view of the declaration of the Prime Minister, I think I am justified in repeating it. In the case to which I refer, a record of which appears in volume 2- of the Reports of the New South Wales Arbitration Court, page 456, I find that the fol lowing statement was made by Mr. Cruickshank, and in another part of the same volume Mr. Justice Cohen reiterates it -

There are about 6,000 men employed in or about the Broken Hill mines; 4,000 are non-unionists, and 2,000 are members of the union.


Mr Watson - But they were not all miners ?


Mr ROBINSON - Two thousand miners asked for a preference, which was granted to them by the Court.


Mr Watson - That is not an instance in which a minority were granted a preference. There are not 6,000 miners at Broken Hill.


Mr ROBINSON - The Prime Minister has the report before him, and he can verify my statements for himself.


Mr Watson - The Amalgamated Miners' Association asked for a preference on behalf of the miners, and not on behalf of all the employes.


Mr ROBINSON - The. statement was made by Mr. Cruickshank, and repeated by Mr. Justice Cohen, that out of a total of 6,000 employes at the Broken Hill mines, 2,000 asked for a preference, and obtained it.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Does that preference cover the whole of the 6,000 employes? That is the point.


Mr Watson - No. '


Mr ROBINSON - If the Prime Minister will peruse the report in question, he will come- to the same conclusion that I have. The next instance to which I would refer the honorable gentleman is that of the Saddlers' Union. In that case, the New South Wales Saddlers' and Harness Makers' Society were the claimants, and the Wholesale Saddlers' and Harness Manufacturing Association the respondents. It came on for hearing upon 3rd March, 1903. The Saddlers' Union claimed that a certain award should be made a common rule throughout the whole of New South Wales. The number of employes engaged in that industry has been variously estimated. The secretary of the Saddlers' Union thought that there were about 1,200 saddlers and harness employes in New South Wales, but added that he would not be surprised if they numbered 1,800. On the other hand, the secretary of the Employers' Association affirmed that the employes numbered about 2,000. For the sake of argument, we may fairly adopt the mean between the two estimates, and set down the number of those engaged in the industry at 1,600. This particular union, I repeat, asked that a preference should be extended to its members. The secretary of the Employes Union was questioned asl to how many men constituted it. Under cross-examination by Mr. Garland, he said -

He could not say how many members had paid their weekly subscriptions. There were very few. He had the information in his books. There were 213 altogether, including collar-makers. About 170 had not paid their dues.

In other words, 2.13 employes asked that a preference should be extended to them in a trade employing 1,600 workers, and of that 213, only about 40 were genuine financial members of the union. This particular union contained only five members outside the metropolitan area, and under the terms of the award, these men received a preference over other workers in that trade in New South Wales. That is an instance of an insignificant minority - a minority comprising only 15 or 16 per cent, of those engaged in the trade - obtaining a preference over the bulk of the workers affected. The amendment of the honorable and learned member for Corinella is designed to correct that state of affairs. Doubtless, the members of the organization to which I have referred were competent, reliable, and trustworthy in every way. Nevertheless, it cannot be denied that a minority obtained a distinct preference over a majority. In the case of the Bread Carters' Union, it was never claimed that its members constituted a majority of those employed in the trade. It was urged that they represented about half of the total number of employes. I have now given three instances - collected at a moment's notice - which serve to show that it is not a fact that a preference has been granted by the New South Wales Arbitration Court only in cases where the industrial organization concerned contained a majority, or about a majority, of those engaged in the particular trade affected. In actual practice, a similar provision has operated in the direction of a preference being granted to organizations demanding it. The reason for that was made very clear by the Prime Minister himself. The New South Wales Arbitration Act was designed to accomplish a number of objects. One of these was to facilitate and encourage the organization of representative bodies of employers' and employes. If the provision in that Act, which relates to the granting of a preference to unionists, is not limited in some specific way it must be read in conjunction with section 2. . In that State the Court has decided that the provision means that a preference must be granted to organizations demanding it, unless there is some urgent reason why it should not be granted. In the cases to which I have referred, the employes, who represented only a small minority of the trades affected, obtained the preference which they desired. The Prime Minister's statement that the New South Wales Arbitration Court has not extended a preference to unionists, except in trades in which -their members constituted a majority, or very nearly a majority, of the employes, is, therefore, not in accord with the reports of the cases heard before that tribunal.


Mr Hughes - Does the honorable and learned member say that that is so in the majority of cases?


Mr ROBINSON - I do not.. I wish to guard against injustice being done to a minority as well as to a majority. The Minister of External Affairs is familiar with the old saying that " hard cases make bad law." I do' not wish hard cases to exist. For these reasons I think that the amendment of the honorable and learned member for Corinella should not be departed from, and that there shall be no preference, unless the union which desires that it shall be granted to its members can show that they constitute a majority of# those who will be affected by any award of' the Court.


Mr Hughes - A majority of the persons affected by the award ? What does affected mean?


Mr ROBINSON - The honorable and learned member for Corinella merely supports the principle of majority rule/ which honorable members opposite are supposed to favour. He wishes to insure that, when a preference is granted to a particular union, the members of that organization shall constitute a majority of those engaged in the trade affected. He desires to prevent a minority having the power to demand a preference over a majority in any industrial calling. We were told in one breath that if the Bill does not contain a provision conferring preference upon unionists it will be practically useless. In the next breath we were assured that awards are frequently made in which a preference is not granted. To my mind, those two statements are entirely contradictory. If the Bill is valueless in the absence of a preference clause, how is it that a similar Act has operated successfully in Western Australia? It has also been argued that under this Bill the employes will surrender the only effective weapon which they 'have hitherto retained, namely, the power to strike. I do not think that statement is altogether accurate. So far as I am able to judge from the cases decided by the New South Wales Arbitration Court, this legislation will merely involve the surrender, on the part of members of industrial organizations, of the power to cease work without giving their employers notice. Upon giving due notice they will be at perfect liberty to. discontinue work. The Teralba case proved that up to the hilt. All that is taken from the workers under this Bill is the power to leave their employment without giving their employers due notice. They will still have the power to refuse to work. Under no enactment can we compel men to work against their will.


Mr Spence - Notice is not required in connexion with a number of industries.


Mr ROBINSON - All that the Bill provides is that unionists cannot discontinue their work without giving notice of their intention to do so.


Mr Spence - They cannot leave at all collectively.


Mr ROBINSON - But they can leave individually, and they can all leave upon the same day.


Mr Spence - No.


Mr ROBINSON - In the Teralba case did not the New South Wales Arbitration Court decide that it was powerless to interfere with the strikers,- because under the award which had been given no provision had been made that notice should be given by the men before they were at liberty to quit their employment?


Mr Webster - That was an omission upon the part of the employers.


Mr ROBINSON - It might have been. That decision shows conclusively that the power of the employes to discontinue work is not in the slightest degree infringed bv the provisions of this Bill. Consequently unionists have not had struck out of their hands an effective weapon for hampering their employers. They can still , refuse to work.


Mr Hughes - The honorable and learned member knows that they cannot do anything of the sort, because under the Bill the funds of their unions would be liable.


Mr ROBINSON - Does the Minister contend that the individual members of a union cannot cease work after giving their employers due notice?


Mr Hughes - I mean to say that where a preference has been granted they must continue to supply the requisite labour.


Mr ROBINSON - I am not dealing with that point, but with the question whether the power to strike has been taken away from the workers. The Government say that if we pass this Bill without making provision for a preference to unionists the privilege to strike will be taken away from the workers, without their being given any quid pro quo. That which will be taken away from unionists will be practically the power to leave their' employment without notice. This Bill does not pretend - and no Parliament could pretend - to force any man to work if he did not desire to do so.


Mr Hughes - A union may not take any action calculated to deprive an employer of his labour.


Mr ROBINSON - No; but exactly the same result might be secured without the passing of any formal resolution by the union. The honorable and learned member knows that in the case of a lock-out by an employer the position would be totally different. If he closed His factory, or part of his factory, or if he shut down his mine, he would be guilty of an offence.


Mr Watkins -Would he not be able to give no.tice?


Mr ROBINSON - He would; but byshutting down his factory he would at once wreck his industry. An employer cannot carry his mine or his factory from place to place, just as a worker is able to remove his labour from one district to another. The cry that unionists will be robbed of something which they now possess unless they are given the right to apply for a preference has therefore no force. The Government have shown that it has not, because they have proved that in some cases a preference is not granted, and admit that it should not be granted unless the union claiming it substantially represents the trade affected, whilst we also see that it has no foundation in fact. I trust that the House will abide by the decision of the Committee, which was arrived at after one of the most vigorous debates to which I have ever listened. Every phase of the preference question was then threshed out. If the Government have decided to make this question a vital one, it is to be regretted that they do not stand up for their principles in a more courageous way, instead of attempting by another wishy-washy amendment, to erect a bridge over which weak-kneed members may slide from this side of the House to the other.







Suggest corrections