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Friday, 21 September 1928


Mr LATHAM (Kooyong) (AttorneyGeneral) . - Honorable members must have been impressed by the failure, and indeed the refusal of the Leader of the Opposition, to face the realities of the industrial situation and the issues involved in this bill. It is impossible for him to deny the gravity ofthe position.

There is a stoppage of shipping at most Australian ports, at a season when many of our primary products are sent abroad. The wool sales have been postponed and that alone will cause serious damage to the leading Australian industry. Meat, maize, sugar and butter for export also are being held up, and there is already serious and extensive unemployment. Surely it is of some concern to honorable members from South Australia, particularly those representing Adelaide and its suburbs, that 2,000 men engaged .it Holden's factory may be thrown out of work. Surely it is of concern to the representatives of Newcastle and surrounding districts that several mills at the works of the Broken -m Hill Propriety Company are already closed and others may be closed, throwing thousands of men out of employment. There is in fact a very serious hold-up of Australian trade.

What is the cause? The Opposition speaks with two voices. The honorable member for Bourke (Mr. Anstey) in an utterance of a style to which this House is unfortunately too accustomed from him, said yesterday that the strike had been engineered by the Government and its supporters. Apparently he asks reasonable citizens to believe that the Waterside Workers Federation is in some mysterious way under the control of the Commonwealth Government. But the Leader of the Opposition took a different view. He did not" suggest that the Government was responsible for this stoppage of work. It was due, he said, to the fact that the men were smarting under a sense of injustice and for that reason refused to work under the terms of the new award, although they were prepared to work on their own terms.

As honorable members listened to the speech of the Leader of the Opposition they must have asked themselves whether an award means anything to him and those whom he is supposed to lead. Are the members of a union to be at liberty to refuse to obey an award to which they object? That is one manner of stating the issue which is now before this Parliament. Some time ago a deputation from the Australasian Council of Trade Unions waited upon me, and in the course of an interesting discussion I asked the gentlemen present whether they laid it down as a principle that a union was entitled to refuse to obey, any award to which it objected. They replied " Certainly not. " Then I asked : " Do you say that a union is entitled to disobey any award which, in the opinion of its members, infringes a vital principle of trade unionism?" To that they replied in the affirmative. " That being so, " I said, " You will allow a similar liberty to the employer if in his opinion the award infringes a principle vital to him ?" To that there was no reply. It is impossible to have two jurisdictions within the same area - to recognize the obligation to obey awards and at the same time to allow a union a dispensing power whereby any particular award may be repudiated if it does not accord with the ideas and policy of the union. The Leader of the Opposition said that the Prime Minister was in his element when addressing conferences of ship-owners, but would not be prepared to address conferences of trade unionists.


Mr Scullin - I did not say that. I challenged him to talk to the ship-owners as honorable members on this side have talked to the unions.


Mr LATHAM - Evidently I misunderstood the honorable member. Perhaps it is not out of place to mention that not long ago I offered to address a conference of trade unionists, but for various reasons the offer was refused. . If it be once admitted that any persons can rightly refuse, to obey an award of the Arbitration Court because they object to some of its provisions, that admission involves the repudiation of the whole system of arbitration.


Mr Watkins - The trouble with the workers is that they cannot remove a judge when he is unfavorable to them.


Mr LATHAM - That interjection lets the cat out of the bag. The Leader of the Opposition is in a difficult position. All honorable members must have waited this morning for him to declare definitely that it was the duty of all parties to obey an award. He did not say that.


Mr Makin - He did.


Mr LATHAM - The honorable gentleman would say, of course, that every employer must obey an award, and that for any infringement of it he should be prosecuted forthwith. But any attempt to put the law into operation against the workers is regarded as " provocative," to use a term of which we have heard a good deal, and is to be " deplored." On such occasions we are told that recourse should be had to methods of conciliation. The Leader of the Opposition has said that the workers want justice and not law. That doctrine is sheer anarchy. It means that either side can determine for itself what is just, and disregard the law if it does not approve of it. The admission of such a principle as a rule of conduct is impossible in any civilized society.


Mr Scullin - I said that we want less talk about law and order and more talk about justice.


Mr LATHAM - The rule under which society is governed is that justice according to law is dispensed by the tribunals established by Parliament. The law in relation to arbitration is now being enforced by certain prosecutions. I shall not discuss the facts upon which the prosecutions are based, but I remind the House that the sections of the Arbitration Act which have been invoked have been in force for many years. The section prohibiting interstate strikes and lockouts has been in the Arbitration Act since it was first passed by this Parliament in 1904, and although the Labour party has been in po"\ -r on several occasions since then, no attempt has been made to repeal that provision. The other section under which action has been taken has been in the act since 1920. In September of last year, and earlier, I wrote asking the organizations of workers whether they were in favour of repealing the section imposing penalties for strikes and lockouts, and I have not received a reply.

Should this law be enforced? If it should not be enforced in existing circumstances, in what other circumstances should it ever be enforced? The awards of the Arbitration Court are almost universally obeyed. The Leader of the Opposition was good enough to quote some remarks I made recently at a gathering of commercial travellers. I said on that occasion, and I repeat now, that often grave injustice is done to Australia by representing it as a land of strikes. But I said also, and I emphasized the fact, as I emphasize again to-day, that the transport industry is unfortunately a conspicuous exception to the general rule of observance of awards by trade unions. Special consideration has been given to the waterside workers in the awards of the court. The casual nature of their employment has been recognized, and they have been awarded higher rates of pay in proportion to the work they do than other classes of similar labour.

What are the facts of the present disturbance? In December last a definite promise was made by the Waterside Workers Federation that its members would obey any award which the court might make. That undertaking was given in condition of the early hearing of the federation's claim, and it has been definitely and deliberately broken. Does the Opposition approve of that breach of a promise? After hearing all the facts and circumstances the court made its award in August last. The Leader of the Opposition referred this morning to the subject of pick-ups. I do not propose to discuss the details of the award, because they are quite irrelevant to the issue before this House, but I shall quote a passage from the judgment of the court. Referring to the former award, the President said -

The award provided that the times and places of engagement of labour existing on certain dates should continue until varied by agreement, or by the findings of a board of reference, but the committee of management in defiance of this provision, directed all branches to adopt one pick-up only, although a second afternoon pick-up prevailed in nearly every port. There is no escape from the conclusion that the federation has adopted a policy of definite defiance of this court. It has always stated its willingness to accept awards, but with the unexpressed reservation that so far as the community would permit the collective power of the organization would be used to extort conditions which the court had refused or had not been asked to consider.

The new award was made in August. Thereupon a conference of representatives of all branches of the Waterside Workers Federation was summoned by the committee of management, and at it a motion was carried unanimously repudiating the award of the court. No action was taken to apply for a variation of it; the conference simply repudiated it. Do honorable members of the Opposition approve of that? The repudiation was repeated in a telegram to the Prime Minister, and the men refused to work under the terms of the award. When it appeared that the strike was likely to fail, another meeting was held, at which a resolution was passed declaring that the repudiation of the award had served its purpose for the time being. The Leader of the Opposition glosses over those words as mere words not affecting the substance of the resolution. Surely they show very clearly the mind of the body that passed the resolution.

It is impossible to allow the whole of the sea-borne trade of Australia to be held up, or gravely impeded, while certain members of the Waterside Workers Federation, who at present are in disagreement, adjust their differences. It is true that, in a sense, the committee of management has directed the men to obey the award, but only for the reason that the repudiation of the award has served its purpose for the time being. The direction of the committee of management has made little difference to the behaviour of the men. There is practically the same refusal to work now that there was before the resolution was passed. Special legislation is necessary to deal with marine transport as it affects Australia. It i3 essential to maintain industry on land and at sea, and to export from Australia those primary products upon which all sections of the community depend. The object of any such legislation must be to make it possible for men to work under the awards of the court. Indeed, such action is necessary to preserve the arbitration system itself. The people of Australia will not indefinitely preserve a rather expensive system of arbitration if one important section of industrial labour treats the awards of the court with continuous contempt. That the workers of Australia as a whole approve arbitration was shown conspicuously by the failure of the efforts of the recent congress of the Australian Council of Trade Unions to persuade unionists to withdraw from the Arbitration Court on account of the recent Arbitration Act. A resolution was solemnly passed at that congress directing all unions to hold a referendum on the question of withdrawing from the Arbitration Court. So far not one union has held a referendum; and I doubt whether any of them will do so.


Mr Brennan - The leg-iron provisions of the law have not yet been applied to any extent.'


Mr LATHAM - The workers realize the benefits which arbitration has con ferred upon them. Their industrial and political leaders do not know where they stand in relation to arbitration. The Leader of the Opposition has given expression to a number of empty phrases purporting to favour arbitration, but on occasions such as this he fails to say that there is only one course to adopt, namely, that the men should work- under the awards of the court.


Mr Makin - He did not fail to say that.


Mr Scullin - The Attorney-General does not want to represent me correctly.


Mr LATHAM - Will the Leader of the Opposition say now that the clear, definite, certain and only proper course is for the waterside workers to work under the award of the court?


Mr SPEAKER (Hon Sir Littleton Groom - Order! Will the AttorneyGeneral resume his speech. I ask him not to address questions to honorable members, and honorable members not to interject.


Mr LATHAM - I shall refrain from embarrassing the Leader of the Opposition.


Mr Scullin - I am waiting for an opportunity to answer the question. The Attorney-General will find a definite statement in my speech. He either does not understand what I said, or he has misrepresented my remarks. I told the honorable member for Warringah (Mr. Parkhill) in definite terms.


Mr Parkhill - The honorable member did not.


Mr LATHAM - The Leader of the Opposition has made his position as clear as he can. Let me now turn to another leader - ex-Senator Arthur Rae, one of the Labour candidates for the Senate in New South Wales, who has written an article entitled, " The Curse of Compulsory Arbitration."


Mr Scullin - I read an article on the same subject issued by the Employers' Federation.


Mr LATHAM - In his article, exSenator Arthur Rae says -

It is impossible to estimate the moral harm which has been done to the Australian working class by its hasty and ill-considered acceptance of arbitration as the solution of labour's problems.

I ask - merely as a rhetorical question, and not in the expectation of receiving a reply-whether the Opposition agrees with that statement?

Fortunately, there is legal power to deal with matters affecting marine transport. The Commonwealth Parliament has power under the Constitution to deal with industry in connexion with foreign and interstate trade, a power which it does. not possess in the case of other industries. Under section 51 (1) of the Constitution this Parliament is given full power to legislate " with respect to trade and commerce with foreign countries and among the States." Under section 98 there is special power to deal with navigation and shipping. The power conferred by section 98 has been interpreted by the High Court as being limited to interstate and foreign trade. That is the reason why this bill is limited to employment in, or in connexion with, transport by sea in interstate and .foreign trade. Years ago it was held by the High Court, in the Railway Servants case, that this power did not enable the Parliament to legislate regarding the conditions of employment, in interstate and foreign trade ; but in what is known as the Malcolm case, in 1914, it was definitely laid down by a majority of the court that the Commonwealth Parliament has power to deal with such matters as the conditions of employment in the marine transport trade. Since then the Railway Servants case has been definitely over-ruled by the Engineers case, and it has been stated in express words that the decision in the Railway Servants case can no longer be regarded as law. In the MacArthur case, a definition of interstate and foreign trade was given: It includes all the necessary methods adopted to effect the movement of persons and goods from State to State, because they are necessary for accomplishing the acknowledged end of interstate trade. There appears, therefore, to be no room for doubt on the basis of present decisions as to the power of this Parliament to enact this legislation. Objection has been taken to its form, such objection being founded upon the provision that regulations made under this bill, when passed, shall, notwithstanding anything in any other act, have the force of law. As the Prime Minister has already said, section 10 of the Acts Interpretation Act provides that where an act confers power to make regulations, all regulations made accordingly shall, unless the contrary intention appears, be notified in the Gazette, and shall take effect from the date of notification or from a later date specified in the regulations, and shall be laid before both Houses of Parliament for a period of 30 days; or, if Parliament is not then sitting, within 30 days after the next meeting of the Parliament. Provision is made for the disallowance of the regulations by Parliament. It is suggested that the words " notwithstanding anything in any other act " contained in this bill do not include the provisions of the Acts Interpretation Act. That is, I submit, not the case. The Acts Interpretation Act deals with the method of making and of disallowing regulations. There is nothing in this bill which shows that the method of making and disallowing regulations is not to be applied to this bill when it becomes law. Any regulations made under this legislation are to have the force of law notwithstanding anything in any other act. The Acts Interpretation Act declares the manner in which the GovernorGeneral may make regulations. That act will apply to this bill when it becomes law, as it does to any other act. Regulations under this legislation, when made - and it is only the Acts Interpretation Act which determines the manner in which they may be made - will have the force of law. Under this legislation it will be possible to provide for the licensing and registration of waterside workers, to prohibit the employment of unlicensed workers, and to protect against victimization those who, in the future, may be ready to work under the awards of the court. The Leader of the Opposition appeared to sympathize with certain non-unionists of whom he spoke. If this measure becomes law, and it is necessary to apply it - which I hope will not be the case - there will be ample protection for those who are prepared to assist the vital industries of the country.

The Opposition never makes in this House a contribution to the solution of any industrial trouble. Honorable members must be rather tired by this time of hearing honorable members opposite say that they have been working quietly. The evidence suggests more quietness than work.


Mr Scullin - The Attorney-General himself claims to have done some quiet work. He worked quietly enough to settle the Abrahams case.


Mr LATHAM - The Leader of the Opposition and other honorable members opposite are endeavoring to divert me from my subject. If the exaction of a penalty in the region of £300,000, in addition to the tax itself, is not enforcing the law, I ask what it is. What is the attitude of the Opposition in relation to industrial troubles? I can quite understand quiet work being performed by the Leader of the Opposition along the lines of appealing to the men to show some sense on the eve of an election.


Mr Scullin - I can understand the Government appealing to the ship-owners to do their utmost to prevent a settlement of the trouble.


Mr LATHAM - There has been no evidence of leadership, or of a willingness to give a lead, on the part of honorable members opposite. In every industrial difficulty created by employees honorable members opposite stand helpless and futile. They say that the time is opportune for an application of the principle of conciliation. I agree with them that the principle of conciliation is a good one. But what does that suggestion mean in the existing circumstances? If it means anything, it is that the men are to be entitled to work on their own terms, irrespective of the award, until the other side is willing to give in. That is the real meaning of the conciliation advocated by honorable members opposite. This so-called conciliation merely means the liberty to disregard the awards of the court. It is also suggested by the Leader of the Opposition that there should be an application for a variation. Quite so. But that is just what has not been done. There has been no application for a variation after the award had been finally published and put into operation, but on the other hand there was a definite and deliberate refusal to work in accordance with the award. There was a repudiation of the award, with the object of obtaining by direct action what the court had refused to give after hearing both sides.

The issue is vital. It has been debated before in this House, and will, from time to time, I suppose, be debated upon the floor of every representative assembly. Shall the law made by Parliament be obeyed? Shall constitutional methods be adopted for the purpose of maintaining industrial peace? The Government has no hesitation in saying that it will do everything in its power to ensure the law being obeyed. If this hill is passed and if the necessity for action continues, regulations will be made which will be laid before the next Parliament. Any man has a right to work in accordance with an award of -the court, and the Government will do its utmost to secure and protect that right. It is said that this bill is a political placard. What of it ? Its terms are clear and will be understood by the people. Why does the Opposition object to it? It says that it has the workers of the country behind it. No Government that is not supported by large numbers of the workers can last through an election in Australia. The people believe in parliamentary government, and they are, at an early date, to have an opportunity of determining the constitution of the next Parliament.


Mr Makin - That is all that worries us.


Mr LATHAM - Why does the honorable member say that? Is it because he knows that the people and the workers in particular will approve of this legislation? Of what is the Opposition frightened? It knows that the people of Australia, including the workers, will support the Government in any action that it may take to deal with the critical position that has arisen.







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