Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Wednesday, 16 May 1928


Mr LACEY (GREY, SOUTH AUSTRALIA) - Let the Prime Minister also say where he stands.


Mr SCULLIN - Yes, I wish the Prime Minister to state also if he stands for the attitude indicated by the honorable member for Wilmot in his interjection. The antagonism- of honorable members opposite to the living wage explains their support of this measure^ The clause which I have been discussing strikes a blow at the principle of the basic wage, at the fundamental principle of fixing a minimum wage on the cost of living. Under proposed new section 25d it is provided that before making an award or certifying ah agreement the Arbitration court shall consider the probable economic' effect in relation to the community, and the probable economic effect on the industry. The workers' standard of comfort may go, but the court is compelled to consider the economic effect of its awards.' As a matter of fact,' the court, has always, to a large extent, taken into consideration the economic effect of the awards which it is asked to make, but here it is made mandatory upon it to do so. This, I claim, is striking a blow at the principle of the basic wage. Hitherto, the understanding has always been that the court,, in fixing its award, must take into consideration a certain definite . standard of comfort for the workers. I did believe at one time that we were getting beyond the stage when there was anybody so benighted as to deny the principle of & living wage. It is further ^provided ir. this bill that, before certifying any agree-, ment between employers and employees, the court shall consider the probable economic effect on the industry concerned.

This Government has always boasted about its desire to bring about conciliation in industry, and honorable member* behind the Government have also expressed their desire for more conciliation and less arbitration. With that sentiment I agree. The more conciliation replaces arbitration the better, but this bill is the very anthithesis of that principle. It strikes a blow at the conciliation provision in the act as originally framed. The principle has been recognized since the beginning of arbitration in Australia that where a voluntary agreement waa entered into between employer and employees it should be automatically registered by the court. Arbitration machinery, legal process, and argument were swept aside, because it was recognized that when the employers and employees came to an agreement, that was the end of the matter. The fixing of conditions and wages by mutual agreement was a practice which we strove to increase. This bill, however, will work in the contrary direction, because it lays it down that, before an agreement can be certified, the court must weigh up the situation, and consider the economic effects of the proposed agreement. It is now proposed to arbitrate on the very things that employers and employees have agreed upon.


Mr Watt - Does the honorable member say that the court is not to take into consideration the economic effects of such agreements ?


Mr SCULLIN - I do not; but [ say that, under the act as it now stands, the Arbitration Court has discretionary power in such matters, and this power is ample. Here, however, it is proposed to make it obligatory upon the court to consider the economic effect of all proposed agreements. This, I maintain, strikes at the very root of the principle of conciliation. It is a judicial invasion of agreements between employers and employees, and no encouragement is given to either the workers or the employers to come to an agreement. Particularly does it discourage the employees to be conciliatory, because they are not likely to give anything away in an agreement, recognizing that such action might prejudice their case when it came subsequently before the Arbitration Court for review. The inquiry by the Arbitration Court into the economic effects of a proposed agreement will not, it is certain, result in any increase in wages or any improvement in conditions for the workers. Honorable members know how difficult it is to secure agreement between employers and employees, and this bill, if passed, will make it more difficult, if not impossible. Clause 21 deals with the same principle, and will also tend to discourage agreement between the parties. This clause provides that the court may refuse to certify agreements if, in its opinion, such agreements are not in the public interest.


Mr Parkhill - It is time, too.


Mr SCULLIN - Yes, it will suit the honorable member for Warringah. He does not represent the working class, the toilers, the people who build the nation, and make the community prosperous. He represents the money masters, the parasites who live on the toil of the workers. I expect that sort of interjection from him. I come now to Clause 7, an extraordinary clause, though not the most extraordinary in the bill. I believe that the arbitration system was established first to settle industrial disputes, and, where that was not possible, at least to limit those disputes as much as possible, and to prevent their extension to other places or industries. Under the existing system of wages and conditions, it is not possible to ensure perpetual industrial peace over the whole field of industry. Such disputes will occur, though I maintain that their effect has not been so appalling as has been suggested. However, it has always been the aim of the court hitherto to prevent the extension of industrial trouble, because of the detriment to the whole community. But what does this bill propose? It encourages the extension of disputes. Under clause 7, should a small dispute occur in any section of an industry, the employer may apply to the court for an order that a dispute exists.


Mr Latham - The honorable member is not reading the clause.


Mr SCULLIN - I am giving my own interpretation of it. Honorable members know that, if I read all the clauses of the bill right through, I should exhaust the whole of my time in doing so. Therefore, I propose to give my interpretation of certain clauses, and, if I misinterpret the intention of the bill, honorable members may take me to task for it. The Attorney-General will not deny that, under clause 7, an employer may, if a small strike occurs in a section of an industry, apply to the court for an order declaring that a strike exists. On the other hand, if there is a lockout in a section of an industry, the workers may apply to the court for a declaration to the effect that a lockout exists. Is that a fair interpretation of it?


Mr Latham - Yes. Except that the clause does not say anything about a small strike, or the size of a strike.


Mr SCULLIN - Does the AttorneyGeneral deny saying in his second-reading speech that the clause would apply to a dispute in a section of an industry?


Mr Latham - I do not; it includes that certainly.


Mr SCULLIN - Whenever the AttorneyGeneral finds himself in a difficulty advances a legal quibble to escape from it; but that kind of thing will not carry him far with the general public. It is quite clear that the court may make an order that a strike exists even when there is only a sectional strike. If the employers apply for such an order the court is under an obligation to grant it ii the facts warrant it.


Mr Latham - That .is not what the clause says.


Mr SCULLIN - That is what it means. The only suggestion behind the interjection of the Attorney-General is that when an applicant asks the court to declare that a strike exists, and supports his request by facts, the court may nol make the order. But it is surely obvious that if it can be shown on the facts that a strike exists, the court must make an order to that effect; otherwise it would stultify itself. An employer may find that about 50 men in one branch of his establishment are on strike; he will then be able to. go to the court and ask for an order which will have the effect of locking out 5,000 men. It may be said that the provision will apply to both sides; but I ask what have employees to gain from bringing about a general strike. An employer may possibly gain something from it ; but it must mean loss to the employees. It is, of course, plain that a general strike is of no use to the community at large.

But the speech of the Attorney-General shows clearly that this power is intended for the use of the employers only. This is apparent not only from the definite language of the Attorney-General in regard to the clause, but also from the illustrations that he used. The clause has, as a matter of fact, been specially designed to enable the employers to use the big stick of the general lock-out with the ob- ject of bringing to starvation any group of workers who may protest, to the point of striking, against their wages or conditions. The Attorney-General said -

Even if there is a strike in a portion of an employer's establishment-

That shows that he had in mind small or sectional strikes ; the words " portion of an establishment " can mean nothing else. The quotation proceeds -

.   . . the employer is not at liberty to lock out the men in the rest of his works. Take the engineers' strike in Sydney recently. . . . The policy of the sectional strike was applied. That policy consists of attacking and beating employers in detail.....

If in such a case an employer were to lock out the members of the union engaged in other portions of his workshop a solution would . . . readily be reached.


Mr Latham - I said it would "in many cases " readily be reached.


Mr SCULLIN - That is another quibble. The honorable gentleman proceeded as follows : -

The position in connexion with the engineers' strike in Sydney was that the other employers were unable to support the firm or companies against which the strike was directed..... while on the other hand the union was supporting its members.

The honorable gentleman a second or two later observed -

Clause 7 is designed to deal with such a case.

It is clear, therefore, that the object of the clause is ' to give an employer the power to declare a general lockout of the whole of the men in his employment. We reach the position therefore that a sectional strike legalizes a general lockout' and a sectional lockout legalizes a general strike. That is- the Government's way of limiting disputes and of bringing about peace in industry!

There are things with which no wages board or arbitration court award can cope. Among these is a bullying foreman who treats his men in such a manner that in order to assert their manhood they are obliged to down tools. No law that has ever been framed can deal effectively with a situation like that. But if this clause is passed, the employer may have power in such a case to lock out the whole of his men. It is an outrageous provision to put into a conciliation and arbitration bill.


Mr Manning - Does the Leader of the Opposition deny that there is such a thing as job control?


Mr SCULLIN - I do not deny it. Will the honorable member deny that there is such a thing as a lock out?


Mr Seabrook - Let the Leader of the Opposition name one.


Mr SCULLIN - Honorable members opposite are too one-eyed to see this subject in its true light. There is now a lock-out in the shipping industry. I do not say that there was one previous to yesterday. There was a strike until then. I endeavour to be fair in dealing with these questions. It was a strike until yesterday.


Mr Parkhill - That is the first time that the honorable gentleman has said so.


Mr SCULLIN - Nothing of the kind. But this is the first time that I have had an opportunity to say so in this chamber. I have no wish to mince words in discussing these issues. The plain truth is that to-day there is a lock-out in the shipping industry. One would imagine that these men who work in the galleys of boats, and whose only outlook upon life is through the porthole of a ship on to the boundless ocean, are the only ones who ever do wrong, and that their employers are angelic beings who never have treated and never would treat their men unfairly. It is a great pity that honorable members opposite cannot see that there are two sides to disputes of this character. We have been told that the object of this clause is to limit disputes; but the fact is that it will, if it becomes law, be an encouragement, if not a direct invitation, to extend them.

Another injurious effect of a provision of this character is that a declaration by a court that a strike exists will undoubtedly prejudice any proceedings against individual unionists that may occur subsequently in other courts. In the event of an application by the employers for an order declaring that a strike exists, the employees may not be heard ; but subsequently they may be charged with an offence in another court and have produced as part of the case against them a judicial declaration that there was a strike.

The whole tendency of this bill is to increase the number and harshness of the penalties which may be imposed upon trade unionists. It is designed, in my opinion, to deal with them and not with the employers. An attempt has been made in the drafting of the measure to hide this objective, but it has not been successful. The main purpose of the bill is undoubtedly to penalize trade unionism. Penalties are to be imposed on organizations as such. It is only registered organizations that would be affected by this provision. I have said that 149 trade union organizations are registered under the act, but only 27 organizations of employers. The 149 labour organizations contain 690,000 members. These are the persons who will suffer if penalties are imposed upon organizations. The great majority of the employees' organizations are registered in the court, but only a few of the employers' organizations are registered, although the employers are just as well organized as the employees.


Mr Latham - I point out that the individuals are liable.


Mr SCULLIN - They are not liable to suffer the penalty provided for organizations. The plain truth is that the penalties on organizations will be applicable in the main only to trade union bodies.

My interpretation of clause 8 is that any organization which retains the services of an officer or member who may be found guilty of an offence, may be fined £1,000. This applies to even an officer of a branch or small committee of management. If such a person who has no real authority advises the men to refuse to accept employment, the organization to which he belongs will be liable to a penalty not exceeding £1,000. The mind of the Government is indicated by the proposal to amend section 8 of the act, which provides that the union shall be liable for the act of its officer, " unless the court before which the proceedings are brought is satisfied that the committee of management was not cognizant of the matter." Those words are to be omitted, and even though a union should be able to prove thatit knew nothing of the offence of its officer, that, indeed, his action had been taken without the authority of the union, or in opposition to the direction of the committee of management, it may still be liable to this heavy penalty. It is true that the punishment may be reduced if the union can show that it was not responsible. The officer of some small far-distant branch or local committee of management of a union with 50,000 or 60,000 members may call out 20 or 30 men on strike, and the main organization may be held responsible and fined up to £1,000. If the union goes so far as to remove from office, and even expel from the union the officer who disobeys its instructions - and what more could the Government expect the union to do to prove its bona fides - it may .still be fined £100. If the offender is readmitted to membership within twelve months the fine may be increased to £1,000. If this is not a blow at the very heart of unionism, what is it? The controlling authority of the union, hearing of some likely trouble, may have issued instructions to its member not to strike. If the central authority is defied, and the offenders are expelled, the union funds will still be liable. What is that bur, coercion ?

Clause 10 of the bill makes the union liable up to £50 for strike penalties imposed on any officer. The officers of a small branch or committee may be fined £50 each, and the union will be liable for that penalty, notwithstanding that such officers may have acted in contravention of the instructions from head-quarters. Similarly, the union may be fined £50 in respect of every one of its members or committees who takes part in a strike, even in defiance of its instructions. Clearly, this is ari assault on the very principles of unionism. British law provides that the principal may not be held responsible for the act of an agent unless the agency is proved. Surely the same principle should be preserved in this legislation ; the prosecution should be required to prove at least that the strikers were acting with the consent of the union. Instead, the fact may be established that men are acting without authority, and even in defiance of the union, and yet the union may; be held responsible. Apparently what is bad in common law is good enough to apply to members of a trade union !

Provision is made for secret ballots. Certainly no trade unionist will object to that principle. It is a system which the Labour party has always favoured.


Mr Manning - Theoretically.


Mr SCULLIN - And in practice. The officers of almost every union in Australia are elected by secret ballot. If there are exceptions, they but prove the rule. Referendums of unionists are taken on many important questions. Therefore, we take no exception to the principle of the secret ballot, but no thinking person can fail to object to the ludicrous manner in which it is applied in this measure. These provisions prove that the framers of the bill have no conception of the management of a big industrial union. It is provided that a ballot may be taken at any stage of a dispute, and even though the majority of the union members favour a strike, it is still illegal. Therefore, the will of the majority, by which the Government lays such store in other circumstances, does not prevail in this instance. As a result of a poll, the majority of the 50,000 members of a union may declare in favour of a strike, but any member of the union may be penalized if he goes on strike. If the Government believes so firmly in a secret ballot for deciding whether .or not men shall strike, no doubt it has an equally sincere belief in the system as a. means for deciding whether a strike shall be declared off, and that would mean a repetition of the whole ballot procedure.

To make this bill more ludicrous and earn for it the scorn and contempt of reasonable people, a provision is included that ten members of the union may make a secret application for a secret ballot, and an amendment which has been tabled provides further that the ten men need not apply together, but may apply singly or in twos and threes over a period of three weeks. All this is to enable the unionist to free himself from the " tyranny" of the union bosses! I have no doubt that the Prime Minister and his supporters will spread themselves about the tyranny exercised over members of unions. They may make a number of bald general assertions, but I challenge them to produce any facts in support of them. It is proposed that ten members may, singly or unitedly, make a secret request for a secret ballot on any question affecting their organization or a branch of it. In other words, ten disgruntled members of a union with a membership running into thousands may put the organization to the trouble of a ballot. Such a ballot is to be supervised by an officer of the court, but how it is to be taken is not explained. An officer of the court cannot actually supervize a continent-wide ballot of members of the Australian Workers' Union, the Railways Union, the miners, or the seamen. And who is to pay the cost of such a referendum? The bill is silent on that point. If this proposal is ever put into operation - and no law should be placed on the statute-book unless it is. intended to be operative - unions will become unworkable. Probably that is the purpose of the Government.

The bill completely disregards the ordinary laws of evidence. Ten men may secretly apply to the court for a secret ballot which may cost thousands of pounds and months of work. Surely the union which is so much concerned in the cost and the time employed should be entitled to be heard through its representative before the court in opposition to the application for a ballot; but that right is denied. Ten disgruntled members, may appear before the judge to state reasons why 50,000 members of the union should be involved in the trouble and expense of a ballot, and the representative of those 50,000 members may not have the opportunity to put the other side of the case. That proposal is solemnly submitted to this House by a gentleman learned in the law.

Under proposed new section 56r, any person who counsels another not to vote in a ballot shall be liable to a fine of £50 or imprisonment for six months. This is a savage penalty typical of the temper of this measure. A dispute may occur amongst a section of the men engaged in a widespread industry. . The union officials, aided by the disputes committee representative of all unions, may succeed in effecting a settlement, which is reported back to a mass meeting of the members. At that meeting there may be ten members who do not want a settlement, and under this bill they may demand a secret ballot ; if that demand is refused they can apply to the court. In the meantime, the strike cannot be declared - off, and the settlement that has been effected cannot operate, because, at the instance of ten men who do not want it to operate, a secret ballot is being held. That can, and will, happen. The Prime Minister and the Attorney-General dabble in these big industrial problems with their eyes f focussed on one side of the question only.

The bill proposes to delete section 61, which has been in the Arbitration law since the first enactment in 1904. That section was designed to prevent the intimidation of unionists by forcing them to leave the union during the process of arbitration. It is one of the safeguards which have made the arbitration system practicable, but without any explanation the Government propose to repeal it. I think the reasons for their proposal are fairly obvious.

Proposed new section 18ba provides " that any employers in an industry and any employees of those employers may apply in writing to the Registrar for the determination of any matter relating to their industry by voluntary arbitration. That is a very dangerous proposal. In connexion with conciliation committees, provision is made for the representation of the employers on one side and the employees on the other, but in this proposed new section that principle is departed from. Certainly an amendment which has been circulated modifies the original proposal to some extent, but it does not ' remove its objectionable features. One of them is that any single firm may make application to the court for a judge to consider a request for voluntary arbitration, and any number of employees of that firm may join in. It is true that any determination or award of that judge' would not be binding, but what effect would it have in prejudicing the case of the unions when eventually they approached the Arbitration Court ? If a body of men, say, company unionists - and they cause many disputes - join with a single firm in approaching the court and getting its imprimatur placed upon the application, they may yield various points to the employers and have an award made by voluntary arbitration. It is only natural that when the unions subsequently appear before, perhaps, the same judge their case is prejudiced in his eyes by the very fact " that certain employees have consented to vital alterations in the claim. This provision strikes a serious blow at one of the principles of arbitration, which is arbitration as between organized labour and organized capital. Section 2, paragraph vi., of the act lays it down that one of the objects of arbitration is to facilitate and encourage organizations. The Attorney-General has admitted that a single firm may approach the court and any non-union employees of that firm may join in a request for voluntary arbitration.

There is much more than I could say on the subject. What I wish to point out to the Government is that in attempting to disband and to smash the unions it is flying in the face of history and tradition. Away back in the ages when workers were servile, and to a large extent led a life of slavery, there were laws in Great Britain and other countries that made illegal any combination or organization of labour. Despite those laws the workers formed their association, because it was their inherent right to organize and to fight for better conditions. We are now discussing similar legislation. It outrages every sense of justice, and brings the law into scorn and contempt, because we cannot thrust down the throats of the workers laws that are not based upon justice. The States have tried to give effect to coercion laws, but with little success. Where are their coercion laws to-day? There may be some on the statute-books of the States, but no State government has dared to enforce them. This Government by introducing this legislation is flying in the face of public opinion, and is bringing the law into contempt. No previous Federal Government has had the interests of the workers less at heart. The Prime Minister went to the country and spoke soft words. He declared that he was as good as a Labour man. He sympathized with the workers, and told them what he would do for them. He made many promises, but I ask honorable members to view them in the light of his perform^ances, including an attempt at deportation, the amendment of the Crimes Act, and now the introduction of this law. [Extension of time granted.] Soft words have been spoken, but the action taken has been tyrannous performances for the workers have been like a kick with a hob-nail boot. There are people who say that awards should be obeyed, and that we cannot have both arbitration and strikes. I agree that we cannot have it both ways. When- a union or an employer enters an Arbitration Court they should be prepared to obey its awards; but I ask the Attorney-General and his supporters what becomes of disputes that break out and are not covered by awards ? There are various causes for such disputes, and none more prominent than the non-unionist question. Men band together to better their conditions, pay their subscriptions, and do their work; but a small section outside reaches out its hands for the benefits won by the "unionists. That small section of workers is responsible for most of the industrial trouble. The following is an extract from the speech delivered by Senator Pearce in another place, when the original measure was being discussed. He said -

Without preference to unionists, this bill would become a tyranny. It would take away from trade unionists the right to strike without conferring on them any protection against their employers victimizing them simply because they are unionists

The Australian Industrial and Mining Standard of 1925 published an industrial code, in which is laid down some drastic proposals for preventing strikes; but it also includes proposals for removing the cause of strike. One of them is that no non-unionist is to be employed ; another is that full wages are to be provided for unemployment, accident, and sickness. The proposals are summarized as follows :- -

The legal machinery of Australia shall obviate any conceivable need for a strike or a lockout. Then, and not till then, it constitutes a strike and a lockout illegal.

There is no attempt made in this bill to remove the causes of troubles and disputes, but there is in it that which will bring about discord and strife. This law, immediately it operates, will meet with the scorn and contempt of the great bulk of the workers of this country, who have given faithful and loyal allegiance to the Arbitration Court. Despite the fact that most of the unions have suffered defeat at the hands of the Arbitration Court, by not having had what they considered to be their just claims recognized, they are consent to accept the judgements of the court, The Attorney-General himself pointed out that the men were working under the awards of the court, and I ask him to consider the few occasions upon which the awards have been broken. This law to the unions is anathema. We have been fighting for industrial peace for years, and we strongly condemn this attempt to unwarrantedly interfere. No previous Federal Government has ever attempted the tyranny proposed to be enforced under this bill. This measure is the surest way of killing arbitration by rendering it unworkable and making it unfair. The object of the Government is apparently to have the unions deregistered and to lower the standard of living of the workers. It has been said that the Labour party stands for the workers. I admit that we are here to champion the cause of the men struggling for existence, and when they are right up against it and trouble threatens them, we fight for them. Honorable members behind the Government fight for the employers, whether they are right or wrong. I have never heard the Attorney-General or any of his supporters say one word against an employer in connexion with any dispute. It must be remembered that there is a vast difference between the position of the employers and that of the employees, when an industrial conflict occurs. The former fight for profits and dividends and the latter for something only a little more than a bare existence. The worker fights, as the Scotch poet has said, " for weans and wife."

To sum up, this measure is oppressive and one-sided. It adds severe penalties to the law, and is directed wholly against the trade unionists. It is a blow at arbitration, and undermines the foundations of fairness and justice in the trial of industrial disputes.







Suggest corrections