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Tuesday, 13 September 1904


That the following new clause be inserted : - " 32a. - (1) Whenever the President or Court shall so require the parties to any industrial dispute shall each supply written proposals for the settlement of . the different points in dispute, or offers of compromise, stating the full extent of any compromise which they are willing to make on any such points. Penalty :£100. " (2) If any proposals or offers are supplied pursuant to the preceding sub-section, and the Court afterwards proceeds to an award, then the award on each point in dispute shall be one or the other of the proposals for settlement or offers of compromise so supplied, unless the Court shall, for special reasons, see fit to expressly decide to the contrary."

The proposed new clause embodies a principle which I have endeavoured from the first to have inserted in the Bill. I have somewhat recast my original proposal, owing to certain strictures passed upon it by the honorable and learned member for Indi, when it was previously before the Committee. It does not often happen that I am absent from the House, but, unfortunately, I was not present on the occasion to which I refer, and I do not think that the principle underlying my proposition received that consideration which it merited. It is for that reason that I have again submitted it. The proposed new clause, as originally framed, dealt merely with efforts at compromise. It was drafted by the right honorable member for Adelaide, and carried out entirely what I had in view. Any effort at settlement made under the direction of the Court would necessarily be in the direction of a compromise, even if it did not recede one iota from the original effort which the party in question might have made. To do away with the criticism to which my first proposal was subjected by the honorable and learned member for Indi and several others, I have so re-cast the clause that it will cover, not only an effort to compromise, but any effort that may be made subject to the conditions of the clause. It is, to my mind, a complete refutation of the charge levelled against me by the honorable and learned member for West Sydney, that a vote given by me on another clause showed that I desired to destroy the Bill. I think that this proposal, which has been before the House from the first, must show that I am a friend of this class of legislation - a greater friend than are many of those who have denounced my advocacy of the measure as. political hypocrisy. I should like to briefly review some of the main provisions of the Bill in order to show, why my proposal should be adopted. It does not involve the fate of any Ministry. It has been brought forward by an obscure member of the House, and I am afraid on that account that it will not receive that consideration which it deserves ; but I feel sure that . some such principle as that underlying my proposal will ultimately be embodied in legislation of this class, or it must necessarily break down. It is for this reason that I desire, carefully and sin cerely, to point out what are my reasons for endeavouring to secure the insertion of this principle, or something as closely akin to it as the Committee will accept, in this Bill. The Bill is entitled, " A Bill for an Act relating to Conciliation and Arbitration," and honorable members should be sufficiently aware of its contents to know how much of it really deals with conciliation. The word " conciliation ' ' appears in the title' of the Bill, and also in the introductory provisions contained - in clause 2, sub-clause 3 -

To provide for the exercise of the jurisdiction of the Court by conciliation with .a view to amicable, agreement between the parties.

No further reference to conciliation is to be found in the Bill until clause 32 is reached. The intervening provisions deal entirely with arbitration, but in clause 32 we have this reference to conciliation -

The Court shall, in such manner as it thinks fit, carefully and expeditiously hear, inquire into, and investigate every industrial dispute of which it has cognisance, and all matters affecting, the merits' of the dispute, and the right settlement thereof.

Then in sub-clause 2 there is a further reference to conciliation -

In the course of such hearing inquiry and investigation the Court shall make all such suggestions and do all such things as appear to it to be right and proper for reconciliating the parties and for inducing the settlement of the dispute by amicable 'agreement.

If this Bill were consistent, part with part, one would expect a clause like this, declaring the general scope of the Court, to be followed by further provisions relating to conciliation, and providing for regulations dealing with the subject. But so far from that being the case, we find that there is only one further reference to conciliation in the Bill. It is to be found in clause 42, which provides that -

The Court may temporarily refer any matters before it to a Conciliation Committee consisting of an equal number of representatives of employers and employees, who shall endeavour to reconcile the parties.

Seeing that outside the title of the Bill itself only two definite references to conciliation are to be found in the measure, I think it has no right to the name which it bears, unless we make provision for something in the direction at which my proposal aims. Setting aside for the moment the scope of the Bill itself, and referring to the operation of such legislation in New Zealand, New' South Wales, and elsewhere, we find that unless it provides some means to induce the settlement of disputes so far as possible by conciliation, the Conciliation and Arbitrations Courts become congested to such an extent as to make the legislation under which they exist inoperative and, indeed, a perfect farce. There are disputes now awaiting settlement in the Conciliation and Arbitration Court of New South Wales with which the parties are unable to do anything, because they know that in some cases it is impossible for the Court to take any step towards their settlement for a period of about two years. My desire is to bring about a settlement of disputes by some rough and ready means of natural justice. During the discussion of another clause, the honorable and learned member for West Sydney inquired what was " natural justice ' ' in the view of the honorable member who was using that term? By the term "natural justice," in its application to the proposed new clause, I mean that we should endeavour to put the parties to a dispute in such a position that they cannot attempt to gain any benefit for themselves that will not involve a corresponding benefit to the other side should they fail in their endeavour. Although this may seem a somewhat novel proposition to introduce in the statute-book of the Commonwealth, I may point out that the main principle underlying it can be found in legislation in force elsewhere, and that it is embodied more or less in many -of the enactments of the States Parliaments of Australia. I have previously pointed out that we find it in the old law of the Athenian democracy. A party charged with an offence during the fierce democratic struggles which prevailed in those days, had a right to plead guilty or not guilty, and to have his case decided accordingly, or to go further, and to name a minor penalty as en itpared with that affixed by the complainant, who acted the part of public prosecutor. It is well known to honorable members that Socrates, the philosopher, - when charged with an offence against the laws of his State - the offence of corrupting the youth - had the penalty of death nominated against him by the parties who had instituted the proceedings. It was then open to him. to plead guilty, and to nominate a far less drastic penalty, and that having been done, the dycastery, or jury, might have extended mercy to him, knowing that the prosecution was more or less a political one. In that way Socrates might have saved his life, but in a spirit of philosophical con- tempt for the prosecution, he nominated a penalty so low that the dycastery refused to accept it, and he went to his death.

Mr Deakin - He demanded to be treated as a public benefactor.

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - That is so. He demanded to dine at the Prytaneum at the public cost. That is an instance of the introduction of a principle, very similar to that which I advocate, in the criminal law of a very advanced state of civilization, and of resort being had to it for a very good purpose : to 'mitigate the severity of the political strife which, in some instances, led to the institution of these criminal prosecutions. I desire to refer to one of the features of the oldest legislation of which we know. A book entitled The First of Emfires, which has recently been placed on the shelves of the Parliamentary Library, gives a description of a system of leasing, under improvement, which prevailed in olden days, and in which the very principle I am now advocating was observed. These Laws of Kammurami, the -first known laws that have been recovered from the ruins of ancient empires, embodied a principle under which a man took a lease of land to lay out as an orchard, under all the circumstances in which land is taken up to-day for improvement purposes. The condition in most of the leases was that in ten years' time half the land was to revert to the original holder. In order that the original holder might have the full benefit of the improvements effected upon the land it was left to the lessee to divide the land in halves, and then the original holder selected which of the halves he would take. There, again, there was applied this principle of a rough natural justice, under which the parties concerned were' able to compose their disputes without going through the formality of fighting them cut in a court of law.

Mr Higgins - But it was a very bad code of law; they had no cure, no pay for doctors.

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - It is true that they had that rule; but that does not affect my present line of argument. Coming nearer to our own times,, in fact to the legislation of the various States forming the Commonwealth, honorable members are aware that we have a similar principle embodied in the Customs Acts of many of the States, though' I do not know that it is to be found in the Commonwealth Cus- toms Act. Under many of the States Customs Acts it was left to the importer to value his own goods. The only check upon him was that if the State authorities chose they could say, " We think you are undervaluing your goods," and they could then put a 10 per cent, advance upon them, and take over the goods at the importer's valuation, plus the .advance. This, again, was a rough and ready natural way of securing a just valuation of the goods by putting the importer in such a position that unless he put a fair valuation on his goods he ran the risk of incurring the injustice he was endeavouring to inflict upon the State, by having his goods taken from him at a slight advance upon his valuation. The same principle has been adopted in the matter of land tax assessments in Australia, and in the neighbouring Colony of New Zealand. The land-owner is allowed to assess himself at what rate he pleases. If the State authorities consider that he has grossly undervalued his property, they can add a slight percentage to his valuation, and take over the property. Though I have not seen the Act, I am told that some fourteen years ago, in New South Wales, when it was found necessary to resume many of the extravagantly large leaseholds that had been given to people in the early days, it was decided that, although the total area should not be resumed, it would be wise in the interests of the State to resume at least half. Here, again, it will be understood, that if the State decided to cut the leases in halves and take one of the halves, the greatest injustice 'might, in some cases, have been done to the lessees. Instead of that, the enactment provided that the lessee might halve his holding in any way he thought fit, and then the State stepped in, through its officials, and decided which of the two halves it would resume. It will be at once seen that, when it was left to a man to divide his estate, and he knew that the State would step in and take one of 'the halves, he would take precious good care to see Chat they were equal. I desire to include this principle in the Bill. I believe that it would have the effect of settling many disputes in a far better way than bv Arbitration. A settlement which is likely to be arrived at after a long contested fight under arbitration, and with all the bitterness likely to be created in that way, is one which is not likely to. be the most desirable. The whole scope of our consideration now should be not to create trouble by leaving the settlement of all cases to the Court, and thus occasioning bitter disputes, but to put the law in such a position that the desire to take advantage of it will not. be so great as it is at the present time, and that litigants may come to the conclusion that it is better for them to accommodate their differences, under the supervision of the Court, than to fight them out. I direct the attention of the Committee to the precise terms of my amendment. It will be seen that I do not propose to make it compulsory on the Court to require that the parties shall put in their best offers. That is left to the discretion of the Court. Throughout the discussion upon this Bill we have heard the argument used that we ought to trust the Court, and I think that if there is anything on which we should trust the Court it is on a principle of this sort, -when we know that already the Arbitration Courts in New South Wales and in New Zealand have intimated a desire to have some such a power as I suggest. They may not . have said so in so many words, but, over and over again, they have told litigants, " This is not a matter with which you should trouble us ; you should be able to settle it amongst yourselves. This is not a matter of great importance, and our time is required for the consideration of matters of much graver import. You can surely settle this amongst yourselves." If the Court had the power I propose, not only would it use it in cases where plainly in the best interests of the operation of such legislation it should use it, but litigants themselves would see that by adopting this line of action they would have a better chance of settling their disputes, under the supervision of the Court, in such a way that the Court would register the decision arrived at, and it would be carried out with all the formalities of law attached to an award by the Court - the finding being registered in the Court as an award of the Court. I should like to refer as briefly as I can to the report of the Royal Commission on Strikes. in New South Vales. I am sorry to think that the volume in which it is contained has not been largely made use of by those who have devoted their attention to the legislation now before us. There is in this volume, and in the evidence obtained by the Commission, very much that would greatly assist those designing such legislation as we have now before us. In paragraph 8 of the report, having used the. word " conciliation," the -Commissioners say -

In using the term " conciliation " for the first time in this report, it is convenient to remark here that the terms "conciliation" and "arbitration " are often employed somewhat vaguely as if they were interchangeable, and yet they represent two distinct things. The function of any conciliation agency is to get the parties' to a dispute to come to a common agreement voluntarily without any opinion being pronounced on the merits or any instructions given. The function of arbitration is distinctly to determine the merits, and to give a positive decision to be abided by. If the declaration of such a decision can be avoided it is well that it should be, because decisions are generally more or less adverse to both parties, for even splitting the difference is an equal censure upon both. But conciliation, if it is a success, allows of a friendly settlement on a mutual agreement, and leaves no opening for discrediting the understanding or impartiality of the arbitrators. That being so, the practical question that arises is, how should this primary remedy of conciliation be applied.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - All the same, conciliation always means splitting the differ- 6hcc

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - Yes; but I hope to be able to show the honorable member that the object I have in view is to entirely do away with splitting the difference. Further on in the report, the Commissioners state in paragraph 12 -

Taking all these things into consideration, we recommend that, in the first instance, at least, and until circumstances justify some further differentiation in the constitution of the labour tribunal, there should be only one board, but that this one board should be empowered in some form to discharge, as occasion may require, the double duty of conciliation and arbitration. That is to say, that its first effort should be towards bringing about a voluntary agreement between the parties, and failing that, that the board, or the permanent part of it, should discharge the duty of adjudication, and pronounce a decision.

The object I have in view is to give effect to the principle reported upon by this Royal Commission. We here have a Court, whilst the Commission speak of a Board, and I desire that our Court should use all the powers with which we can invest it to have these disputes settled at the conciliation stage before the parties are forced into litigation at the arbitration stage. Dealing with the evidence submitted to the Commission, it will be found that on page 60 of the appendix to their report, an account is given of the Wallace Act, passed in the State of Pennsvlvania - a measure framed to facilitate arbitration in industrial disputes. ' There are letters in connexion with this evidence from re presentatives on both sides, commending the operation of the Act, and , anticipating advantageous results from its development. Since those letters were written, there have been serious strikes in the coal-mining industry of Pennsylvania, as honorable members are aware - the very industry to which these letters refer - and a glance at the results of the early operation of the law discloses a sufficient reason for the failure of the Pennsylvania legislation. It is another case of attempting to settle these matters by "splitting the difference." The coal trade tribunal of the fifth judicial district of Pennsylvania was licensed under the Wallace Act, to which I have referred, in 1883, and consisted of five representatives of each side, and an umpire chosen by them as a body. A strike was on, and the operators - which is the name they have 'for masters there - offered 3 cents, per bushel for mining, whilst the miners demanded 3J cents. After several lengthy discussions, it became apparent that an agreement could not be arrived at without- considerable delay, and as an earnest of good intentions it was ordered that the miners should resume work immediately, at a price to be thereafter fixed by the tribunal - the price to date back to the time of the resumption of work. The umpire had to be called in, and he awarded a price. Honorable members will know at once what his award was. As usual in these circumstances, the price he awarded was 3J cents. The men wanted 3J, the masters offered three, and the umpire gave an award of 3J cents. This award, whilst it was apparently a disappointment to both parties, was accepted and concurred in for a few months as arranged, but before the expiration of that time the tribunal met to fix the price for a further period. This time the masters offered 3J cents., and the men demanded 3§' cents. Again the services of the umpire were requested, and he again split the difference, and awarded 3J cents. This award did not appear to be satisfactory to all, but it was accepted. Since then we have had great strikes amongst the coal miners in Pennsylvania. What I say in this connexion is that if the award ultimately given in this case had been given at first instead of the original . decision it would have satisfied one of the parties, whilst the other would have been in no worse position, and work would have been resumed. But under this system of splitting the difference the demand is always increasing and the concession is always lagging tardily behind.

Several of the witnesses before the Royal Commission on Strikes in New South Wales anticipated the friction that would arise over the principle of " splitting the difference," which the new clause is designed to remedy. One of the witnesses was Mr. W.- E. Abbott, a gentleman well known to the representatives of New South Wales ; and the following is an extract from his evidence, as reported on page 114: -

If we cannot enforce the decisions of the Court, do you think, as a rule, the decisions of the Court would be acquiesced in? - No.

Then- what would be the use of it ? - The Court, as a means of settling disputes of that kind, would be no use, but as a means of registering agreements between the employers and employes or their unions it would be valuable.

Then the best thing to be done is to have some arrangement for a written agreement to be registered in Court, at which either party can sue and get damages? - Yes, that is the only point I see on which the law can interefere in any way. If a Court undertook to interfere in any way, in such questions as whether a shearer should be paid 20s., or 2£5., probably the Court would split the' difference in some way ; they would not give the 25s., and they would not give the 20s. At least that is the rule in most Arbitrators' Courts. Either side can then reverse the decision of the Court. If a Court said that 22s. 6d. was a fair thing, then the shearers would take the 22s. 6d. for the time being, and then go for 30s., in which case they would get (say) 24s., or the employer would say that 22s. 6d. is not right, and he will go for 17s. 6d.

My contention and that of Air. Abbott is that in the whole course of cur legislation all we are doing, unless we have some means to induce conciliation, is to absolutely constrain the men to make the largest demands, and absolutely constrain the masters to yield the smallest concessions. By this system of splitting the difference, which we see in so many of the decisions, the parties to these great industrial and social disputes, which are so dangerous to our ma,terial welfare, and our internal' peace, are forced further and further apart, whereas the design of legislation should be to induce them to come nearer and nearer - so near, in fact, that, in many instances, it will not be worth while to proceed further. I have read an extract from the evidence of one of the witnesses who represented the employers before the Royal Commission ; but honorable members may accept my assurance that there is evidence to the same effect on both sides. One of the witnesses examined was Mr. Peter Joseph Brennan, president of the Trades and Labour Council, Chairman of the Australian Labour Conference, founder of the Stewards' and Cooks' Union, and secretary to the Butchers' Union. Surely an occupant of all those positions ought to be able to speak of what was anticipated as the result of legislation, so far as unions and workmen are concerned. Yet Mr. Brennan, on page 99, is thus reported : -

In any Court one side or the other is bound to be dissatisfied wilh the decision, but the rule has been with arbitrators to split differences ; if in Courts of law they do not split differences, in Courts of Arbitration they have always split them ; not only in the case of private arbitrators ; Mr. Oliver was not a private arbitrator, and Mr. Barton was appointed by a County^ Court Judge; I will not go into the technicalities of the matters sent before Mr. Oliver, but I will say generally that the miners were willing to submit to competent arbitration.

This man, representing unions of workmen, says that the whole tendency in Arbitration Courts is to split the difference; and I go further, and say Chat if there is this tendency, this legislation will intensify and increase the number of disputes which we are setting forth with such good intentions to prevent. I should like to draw the attention of the Committee to the case of the Monumental Masons' Union against the Master Monumental Masons, heard in the New South Wales Arbitration Court. The men claimed that the price of cutting and blacking letters on free-stone tombstones should be 12s. per 100, whereas the respondents contended that the price ought to be ros. 6d. The Judge considered it utterly absurd to suppose that reasonable men could .not arrange whether 10s. 6d. or 12s. 6d. should be paid for the work. I cannot say that, personally, I see that Che Judge's remarks were called for, because the difference between 10s. 6d. and 12s. 6d. was the difference in the wages for the day, and many other disputes heard before the Court do not involve quite so much. However, this is what the Judge is reported to have said -

Trie Court having power to dismiss any matter at any stage of the proceedings, where it thinks the dispute trivial, considered this .absolutely trivial and dismissed it.

I do not know whether we are -justified in reflecting on the conduct of Che Judge, but if His Honor be correctly reported, I do not think that the men had their case properly inquired into. What I do say is, that the men ought to have had an opportunity such as I desire should be given, to submit their case to a primary or preliminary proceeding of conciliation ; and, if it were impossible to have the dispute settled in that way, then, no Judge's time is too precious to be devoted to the work. Again,, in the dispute between the Barrier Branch of the Amalgamated Miners' Association and the Broken Hill Proprietary Co., the men asked for a 10 per cent, rise, and the masters wanted a 10 per cent, reduction in the wages; and the decision of the Court was practically that the parties should continue on the terms which had hitherto prevailed. I am not going to say whether the decision of the Court under the circumstances of the miners at the time was reasonably sound or not; but I do say that questions of that character, decided on those lines, will inevitably give rise to further litigation, and increase the number of great industrial disputes rather than, tend to decrease them and bring about easy settlements. But there is another and a most flagrant case of settling disputes on the principle of splitting the difference. Some time ago in the New South Wales Court, the case of the Hotel, Club, Restaurant, and Caterers' Employes Union was dealt with, and it is referred to on page 37 of the reports of the Arbitration Court. These men demanded sixty hours per week of six days, and the offer of the masters was seventy-one and a half hours for cooks, and seventy-eight for other classes of employes. The decision of the Court was in the first case .seventy hours per week of seven days, and in the second case seventyseven hours per week of seven days. The demand in regard to wages was for chief cooks, £3, the offer of the. masters was . 61 1 os., and the decision was £2 5s. ; for second cooks the demand was £2 5s., the offer was £1 5s., and the decision was £I 10s. ; for third cooks the demand was £1 15s., the offer was £1, and the decision was £1 5s. ; for general hands, the demand was £1 5s,, the offer 12s. and 15s., and the decision was £1 ; for casual employes, the demand was 15s., the offer was 10s., and the decision was 12s. 6d. In each of these particular cases, which involved the wages in different branches of this business, it will be seen that the demand and the offer were very wide apart indeed, and the only way which the Court could find to settle the dispute was to add the two sums together, and divide them. If that is to be the principle on which disputes of the kind are to be settled, we do not want a learned Judge, versed in British law, and a good deal of other law, and with a large salary, to settle such matters, because any ordinary, common-sense individual would be able to arrive at decisions of .this character. I do not deny for a moment that the Judges of such Courts give decisions involving points of very much greater importance than those which I have instanced; but I protest against that system of settlement for the reason, as I have said, that it must tend to increase litigation, and that it leaves behind it a more bitter and troublesome spirit amongst masters and men. If my proposal were adopted, we should say to the masters, in effect, " What is the best you can offer?" and to' the men, "What is the least you are prepared to accept?" The difference in the amounts would be reduced, and the parties brought so close together as to make it certain that the Arbitration Court would come to- a satisfactory decision, and in ninety-nine cases out of a hundred the parties themselves would deem it advisable to come to an agreement and have it registered in the Court. A similar plan is attempted in other countries. The honorable and learned member for Indi, in the early stages of the discussion on this Bill, made some reference to the Conseils de Prudhommes in France - ari institution which has much more limited jurisdiction than it is intended to give the Court under this Bill, but which works satisfactorily. I understand that in connexion with this organization there is a principle adopted, which, however, I cannot find referred to in any book dealing with the subject in the Parliamentary or other library. But a witness before the Royal- Commission, whose evidence I give for what it is worth, stated that in the Conseils de Prudhommes five of the arbitrators are selected by the masters from among the men and another five are selected by the men from amongst the masters. If that be the case, the principle is the same as that of the clause which I propose. Under such a system the masters would select moderate and reasonable men, who are not likely, for any purpose, political or otherwise, to carry matters to extremes, and similarly the men would select employers whom they knew to be the most honest and the best-disposed towards their employes. Such a plan would result in a set of arbitrators more likely to come into accord than would be the case if each side appointed their own arbitrators. We here have the principle of natural justice, for which I have been contending ali through my remarks, and which has been attained elsewhere. The facts will be best known to the particular masters and men selected as arbitrators, because they will be connected with the dispute; and, under the clause which I propose, the Court might be empowered to allow each party power to select a man from the other side. Above all, the clause would relieve the congested state of the Arbitration Courts. We know that, at the present time in New Zealand, and, perhaps, to a greater extent, in New South Wales, it is almost impossible to get disputes settled owing to the large amount of work with which the Courts have been rushed ; and the number of cases, so far from decreasing, is increasing. I do not, as some other honorable members do, hold the opinion that the Arbitration Courts create litigation. In many instances, after having once got an award registered, parties will not apply for another award, though they may ask for a variation to meet changing circumstances. The fact remains that both in New South Wales and New Zealand, the Courts are overburdened to the point of breaking down. In the principle of the new clause I have proposed, we have a means of making this class of legislation much more perfect than it is in the two States I have mentioned. I do not know to what extent honorable members consider that the Court will be occupied with disputes in different parts of the Commonwealth, but it is inevitable that if the High Court, in deciding as to. the extent of our power to interfere, should be in favour of the Arbitration Court under this Bill having very full, almost plenary powers to deal with the labour disputes of Australia, the Court will have an immense body of work - work which not one Judge, nor even six Judges, will be able to do. For that reason, more than any other, if wc desire this legislation to be successful in carrying out the objects which we wish to attain, and to remedy disputes, we must provide beforehand for preventing the Court being choked with applications, and so making it break down by the very weight and quantity of litigation. I say again, as I said in opening, that I desire this legislation to be successful. I wish to see it successful to the extent of ending our industrial warfare from one end of the Commonwealth to the other. In this clause, which I recommend to the consideration of honorable members, we have a means of making the Bill more perfect, and of carrying it into effect with less chance of disastrous failure than I fear will exist if some such principle is not adopted.

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