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Wednesday, 30 May 1928


Mr LATHAM (Kooyong) (AttorneyGeneral) . - Several honorable members have referred to the meaning of the term "job control." I used it to illustrate a situation to which this clause would be applicable. The sectional strike is undoubtedly one form of job control, though there are others. It is the form of job control generally adopted in Australia. Job control has frequently been considered by the Arbitration Court, and in 1923 the High Court considered it. Their Honours Mr. Justice Isaacs and Mr. Justice Rich then said -

Job control, so far as we understand that phrase to have acquired any definite meaning, connotes the control by employees, whether already engaged or not, or by some organization representing them, of some single enterprise or portion of an enterprise of an employer, which is selected as an isolated unit of industrial operations; the effective method of enforcing the control being, not a general strike in the industry or of the union, or even in the general service of the employer, but a strike of the employees engaged on that unit, or a refusal to engage on it at all.

The High Court suggested that it would be desirable to incorporate in awards an express definition of job control. Quite a number of the awards of the court expressly prohibit job control. The case to which I have referred was a seamen's case, and when the award was made at the beginning of the following year - 1924 - provisions were incorporated prohibiting job control in express terms. In the definition section of the award I find the following; - " Job control " includes any attempt by members of the organization, or any of them, to enforce the industrial conditions other than those prescribed or recognized by the court, or by the Navigation Act, or any competent authority thereunder, either by refusing to offer for or accept work on any particular vessel or vessels, or by refusing or failing to carry out the work of any particular vessel or vessels, or by any methods other than those provided by the Commonwealth Conciliation and Arbitration Act, or by the methods of ordinary negotiation.

The High Court said that the word " job " does not admit of final definition, because what is selected as the thing to be controlled, and called the " job ", is naturally not susceptible of prior delimitation. It must vary with circumstances, and with the progress of industrial operations. It may be a house, a shop, or a ship, or a waterworks. In Australian terminology, the most important form of " job control " is the sectional strike, but it is really immaterial whether the sectional strike is called " job control " or not. This clause is to deal with a partial strike which cannot otherwise be dealt with. It does not matter whether a partial strike is technically job control or not. Honorable members opposite have been holding up their hands in horror at the idea of allowing a strike ever to be legal. Surely they know that, generally speaking, only interstate strikes and strikes against awards are illegal in Australia. This legislation need never have contained penalties for strikes. Most industrial legislation in Australia dispenses with any penalties for strikes or lockouts, but this Parliament, for over twenty years, has elected to adopt the method of penalizing lockouts or strikes, so far as it is constitutional to do so. Take such a system as the wages board system of Victoria, which provides no prohibition against strikes or lockouts. A determination is made that does not prevent employees from striking or employers from locking out. The effect of making the determination is that if a person employs another to do work of the nature described in the determination he must pay him the fixed rates of wages, and, in accordance with the determined conditions as to hours and otherwise. There can be a system of industrial regulation without any prohibition of strikes or lockouts, but that is not the policy which this Parliament has deliberately adopted. This Parliament need not have provided penal sections, but when it adopts them it is at liberty to say how far they shall apply. There is no constitutional or other provision which imposes on this Parliament the necessity of penalizing all strikes or lockouts, or even any particular class of strikes or lockouts, and there can be no doubt whatever as to the power of this Parliament to remove the strike or lockout penalty in such cases as it may think proper. That is what it is proposed to do in clause 7. Some industrial organizations have from time to time in their propaganda asked that all penalties on strikes shall be lifted, although, as I have indicated to honorable members, the trade union movement, as a whole, is not prepared to put forward that request. It may be that there are honorable members in this chamber - they have not expressed the view in definite terms in the House - who think that there should be no penalties on strikes. Supposing that honorable members were to put forward such a view, would it not be rather surprising for other honorable members to say that the proposal was condining crime, and making illegality legal? It is simply a change in the law, which this Parliament is at liberty to make as it thinks proper. Clause 7 provides that a declaration may, in the discretion of the court, be made, and the result will be that during the currency of the declaration a lockout or strike, as the case may be, will not be illegal in the industry concerned. I have used as an illustration the case of the sectional strike, because I concede that that is at the present time the important practical matter with which we had to deal. We must either ignore the problem, or endeavour to deal with it. No other method of dealing with it has been suggested previously. But although I have used the illustration of the sectional strike, the provision also applies to sectional lockouts. I concede that from a practical point of view that is at present unimportant. There is this essential distinction between a strike and a. lockout: A strike exists only where there is combined action in the refusal to work. It is very difficult to prove the element of combination. In the case of a lockout there is no necessity to prove any combination. There is always a definite identifiable individual whose actions alone are in question in the case of a lockout. If an employer shuts up his works, then the question is whether the closing of the works took place with the object of enforcing industrial conditions upon the employees. That, T concede, is not easily proved, but it is more easily proved in the case of oneman than is a corresponding intention on the part of a large number of employees^, together with the necessity to prove that they have combined in die action that they are taking. Employers are very frightened of the lockout penalties; but many workers are not at all frightened of tha strike penalties. It is much moreeasy to enforce the lockout penalties when the facts happen, than; it is to enforce thestrike penalties when the facts happen. The application of this clause, if adopted' by the committee, will most probably befound in cases of sectional, strikes ; but it will apply also to cases of sectional lock- - outs.







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