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Friday, 10 November 1911


The PRESIDENT - Order!


Senator MILLEN - These interjections may be out of order., but they are very pertinent, and they all confirm my statement that you have to bring about a change in the mental attitude of those who are working under these arbitration laws before you can claim that they are successful. As far as I am concerned, I do not think that that change of attitude is going to be brought about within any reasonable space of time Consequently, I do not hope for anything from these constant amendments of the law. If the matter were left to me I would not walk across the street to amend, to repeal, or to abolish our arbitration laws. I regard them as mere waste paper. I am not prepared to abolish them, because it may be that more reasonable counsels will prevail in the future with the men. It may be that they will discover that after all is said and done a loyal adherence to an agreement or an award is better in the long run than striking.


Senator Mcdougall - Awards have compelled many employers to pay fair wages.


Senator MILLEN - But the men do not adhere to them if they see or think that the conditions of the market justify them in asking for increases. The wages which are being paid in a number of industries to-day are not the wages which were determined upon under arbitration awards at all. That has happened because men threatened to strike if their employers did not concede to them better wages than they were receiving under awards.


Senator Givens - The percentage of breaches of awards has been exceedingly small.


Senator MILLEN - I cannot penalize the Senate by giving again the history of one union to show the number of strikes that have occurred, although the members of that union have nominally been working under awards for years.


Senator Guthrie - There was absolutely no breach of an award of the Federal Arbitration Court before last December.


Senator MILLEN - How does it affect the principle of arbitration whether an award comes from Mr. Justice Higgins or Mr. Justice Heydon?


Senator Guthrie - We are dealing with the Federal Arbitration Court.


Senator MILLEN - I am dealing with the principle of arbitration, and it is immaterial to me whether a body of men break an award given by one tribunal or "by another. The whole principle must break down, unless there is a loyal determination to respect arbitration awards, however given.


Senator Guthrie - My contention is that the Federal Arbitration Court has been a success. There was no breach of a Federal award until last December.


Senator de Largie - And that was not an award, strictly speaking.


Senator MILLEN - I am dealing with the general and marked failure of arbitration, compulsory or otherwise.


Senator Givens - And the honorable senator is basing his argument upon a miserable percentage of breaches of awards.


Senator MILLEN - Senator Givens may say that the percentage is a miserable one ; but I again remind the Senate that I have given the history of one union for the last five years, and have shown what a large number of strikes have occurred in connexion with it.


Senator Rae - It is a healthy sign in the body politic.


Senator MILLEN - If Senator Rae says that it is a healthy sign when men break the law and break an agreement, and also claim the right to strike when an award does not suit them, I do not agree with him as to what a healthy sign is. The honorable senator has put in a few words the very point that I am making, and that brings me to the fresh point - that with regard to arbitration I am a confessed pessimist.


Senator Givens - The honorable senator does not look like one !


Senator MILLEN - Well, no one could see Senator Givens sitting in front of him without being brightened with a ray of hope occasionally.


Senator Rae - I wish to explain that I did not mean that it was a healthy sign that there was industrial unrest or that agreements had been broken.


Senator MILLEN - The honorable senator does not say that it is a healthy sign when employers break agreements that do not suit them. It is immaterial to me, however, whether strikes occur by breaches of awards by employers or employes. My point is that, in consequence of these breaches, the law has broken down. It does not matter which side has broken the law. There has been a want of loyalty on the part of those who should be working under awards, and as a result our arbitration laws have become simply a farce.


Senator Givens - This Bill deals merely with an obvious defect in the law.


Senator MILLEN - We have been passing amendments of the arbitration law session after session. Nevertheless, breaches of awards are multiplying, and it does not seem to me to matter whether we abolish our arbitration law or pass a fresh one.


Senator Givens - The honorable senator has been taking a good deal of trouble about this matter, which has cost him more effort than walking across the street would do.


Senator MILLEN - Of course, to a man like Senator Givens, with his strong aversion to any healthy exercise, it may be so, but it is not so to me. It appears to me that we are simply pouring water into a sieve. Of course, to do so may amuse some honorable senators - it may keep them out of mischief ; but I fail to see that it is doing any good at all. I repeat that this Bill will not do any good. I do not like to say a thing which may sound like a warning, and if my honorable friends opposite construe my observation in that way I cannot help it; but I assert again that, without something like loyal adherence to awards, and unless there is a marked change in the public utterances of those who are generally looked upon as the leaders of Labour, this amendment of the law will do no more good than did its predecessors.


Senator de Largie - Will the honorable senator give us his remedy for the whole trouble?


Senator MILLEN - I have said several times in the clearest terms that I have lost ali faith in the arbitration awards.


Senator de Largie - What is the alternative ?


Senator MILLEN - The alternative is what is occurring with unfortunate frequency. It appears that the men will never give up their right to strike, no matter what legislation we choose to pass.


Senator de Largie - The honorable senator defends strikes?


Senator MILLEN - I am not defending strikes. I deprecate them. But I say that though I deprecate and regret the occurrence of strikes, I am not going to be fool enough to say that I see any sense in following up law after law when I know that each successive law will be broken, as its predecessor was. I am strengthened in that opinion by a reflection on the general position during the last five years. During that time, when numerous awards have been drawn up, invariably when the market conditions permitted of an increase of wages, the men struck, or threatened to strike, to secure them.


Senator Rae - Not invariably.


Senator MILLEN - The honorable member may be able to pick out one little swallow and call it a summer; but, nevertheless, my statement is correct - that these awards have marked an advance for workmen in the industries in which they are employed.


Senator Givens - Hardly in proportion to the increased cost of living.


Senator MILLEN - That is another matter. The awards have undoubtedly been on an up grade, yet they have not been observed. They have failed to give satisfaction.


Senator Rae - They have not gone up with a steep enough gradation.


Senator MILLEN - That may be so. If, during the time the awards were on an up grade, and did mark an advance; if, under these favorable conditions, men refused to be bound longer than it suited them, what is going to happen when in the natural order of events the present period of splendid prosperity terminates, and a period of comparative depression is entered upon? I feat what will happen.


Senator Rae - We shall make the employers do with less profits, so that we cart keep up our rates of wages.


Senator MILLEN - The workers will do that by a strike when it suits them, or by any other method when it suits them. The honorable senator must not thinkfor one moment that I take exception to any body of men trying to get the last possible farthing they can for anything which they have to sell; they are justified in doing that. But it is a perfect farce to pretend that they are going to adhere loyally to an arbitration award when the experience of the last few years shows that the moment the condition of the market justifies it they will break the award. In otherwords, they will resort to the method which a few years ago it used to be the custom to refer toas the "barbarous method of the strike,"'' but which is. now being lauded.


Senator McDougall - How long did the wharf labourers wait for an award?


Senator MILLEN - Did they have to wait a long time for an award?


Senator McDougall - Three years.


Senator MILLEN - They were like the boy with the soap. They were not happy till they got an award, and then they were still unhappy. The first thing they did was to break the award. No one was morehopeful than I was when the idea of arbitration was in the air; no one was more sanguine, or more confident, than I was that we had struck the right solution for our industrial troubles. It has been to me a matter of considerable disappointment, and it is now that my old faith has been shattered, as the faith of thousands of persons' has been shattered, by the unanswerable events of every-day life.


Senator Givens - If I remember rightly you were not an enthusiasticsupporter of arbitration.


Senator MILLEN - My honorable friend does not remember rightly.


Senator Givens - I am glad to 'hear that.


Senator MILLEN - As a matter of fact, I do not think my honorable friend remembered it. He was simply throwing out a feeling interjection.


Senator Guthrie - I think you were very happy when the Watson Government went down on arbitration.


Senator MILLEN - I am always glad when a bad Government goes out of office.


Senator Guthrie - On arbitration?


Senator MILLEN - The principle on which the Watson Government went down was quite distinct from the Arbitration Act. I am a pessimist with regard to arbitration laws. It was with great regret that I arrived at that frame of mind. But I would be false to myself, and to the position I hold here, if I refrained from stating my opinion that all our labour will be wasted unless we see a complete change of mental attitude on the part of those who ought to be the first to stand up as the champions of any industrial award or agreement. I do not propose to discuss the details of the Bill, because everything turns on the wording of a provision. I have already stated that I have not had an opportunity of looking into the measure as closely as I would have liked to do, but there are two principles to which I desire to refer. One of the main objections I see to the Bill, if I troubled very much about arbitration law, which I admit I do not do, is that, if it does become law, as I suppose it will, and if that at which it aims is secured, it will sound the death-knell of collective bargaining. If we are going to have men organized in crafts, instead of, as at present, in industries, there can be no more collective bargaining. We can have collective bargaining in an industry, but we cannot if we organize crafts. A man who is driving an engine for a wool -scour in Queensland cannot join with the man who is driving an engine for a saw-mill on the south coast in New South Wales, to make a collective bargain with the employers in the two industries. To my mind, if there was one hopeful spot at all in our Arbitration Act and procedure, it was the opening which it presented for collective bargaining. I am not saying that there has been any very great success achieved there. It has always appeared to me that, where a bargain was arrived at voluntarily, there was a better hope of it being adhered to than where a Court had issued an award. But if the object of this Bill is achieved, and if the practice becomes general of men organizing according to their crafts, instead of according to their industries, we shall have absolutely destroyed any hope of extending the idea of collective bargaining. I leave it to others who are more familiar with the subject, and have greater faith in this kind of legislation, to determine that point. But to me the measure marks a retrogressive step rather than a progressive one. The next point to which I wish to refer is the effort made in the measure clearly to concentrate all industrial matters of the Commonwealth in the hands of one man, and having done that to stop there. Not only does the Bill direct all, these matters into the keeping of one man, but there is a provision which, as far as we can make a provision effective, is intended to see that his decision shall be final. Whether that is constitutional or not I am not now going to argue. But I do ask attention to the view which seems to me capable of easy demonstration that any attempt to bring into the hands of one man, or even into one Court, all the industrial affairs of a great continent like Australia, with its varied industries, occupations, and interest, will fail sooner or later. And I venture to say that it will fail more particularly in the ease with which the awards will be broken by one or other section of this big industrial army. When we find a body of men concentrated in one or two cities, whose calling is very similar, such as the wharf labourers, for instance; when we find the facility with which they strike against an agreement or award we can see at once how much greater will be the temptation to strike when an award is given which covers various sections located all over the continent, and engaged in various industries where the conditions are very much more diversified. For that reason I feel that, on these two points alone, the Bill is by no means progressive, but is, on the contrary, asking us to put back the hands of the clock of time. I want to express an opinion, which I hope I. shall be able to do without offending against the Standing Orders, or, at any rate, against my sense of what is right and proper in the circumstances. I cannot resist the feeling that the portion of the Bill, to which I have just referred, is simply prompted by the desire which is very strong outside, as it is strong here, to get an award from Mr.

Justice Higgins. I am not canvassing his judgments in any way, but I venture to say that the strong motive power underlying the Bill is a desire, not to get a Federal law, but to get a Federal Judge. In other words, if Mr. Justice Higgins were presiding over a State Arbitration Court the feeling would be to get before that Court, and not in any way to come under Federal jurisdiction.


Senator Guthrie - In the case of the seamen it was the ship-owners who wanted to go to Mr. Justice Higgins.


Senator MILLEN - Did you not have a little quiet arrangement before you went tnere ?


Senator Guthrie - No. How could we when we had disagreed?


Senator MILLEN - The movements of that very successfully handled union, the Seamen's Union, and of the equally successful ring, the shipping ring, have been too marvellous, indeed, too mysterious, for me to attempt to follow them.


Senator Guthrie - You are under a delusion.


Senator MILLEN - I never think of this very happy family, concentrated in our coastal shipping, without being reminded of the story of the man who was charged with stealing pigs on one occasion. The evidence against him was so clear that his lawyer expected that he would be convicted. But, to his surprise, the jury acquitted his client. When the case was over the lawyer said to the man, " Well, my man, I am glad that you got off, but I do not know how you did it?" The man replied, "Lawyer, it was this way; every one of those jurymen had some of those pigs." That was exactly the way with the Seamen's Union and the Steamship Owners Association. There has been a fair division of the hog stolen from the public, and so they are running along as a very happy family.


Senator Guthrie - And the public get the cheapest freights and passage rates in the world.


Senator MILLEN - We do not think so who have to pay them.


Senator Guthrie - I shall prove that by-and-by.


Senator MILLEN - I was saying that the strong motive power behind this desire to federalize industrial arbitration is not a clear and logical belief in the Federal law, but a strong belief in Mr. Justice Higgins.


Senator Findley - Hear, hear ! He is a fair and just Judge.


Senator MILLEN - I am not suggesting that he is an unfair Judge.


Senator DE LARGIE (WESTERN AUSTRALIA) - Can he give an award contrary to the law?


Senator MILLEN - On Friday last we had a statement by the Vice-President of the Executive Council that the High Court had strained matters to give certain interpretations.


Senator de Largie - Mr. Justice Higgins is not the High Court.


Senator MILLEN - Is it justifiable to say that all the Justices of the High Court except Mr. Justice Higgins strain the law, and that he is a different type of man, and does not do so?


Senator de Largie - He is not the High Court.


Senator MILLEN - But the High Court embraces Mr. Justice Higgins, and I used to understand that the whole was greater than a part.


Senator de Largie - He is only a fifth part of the High Court though.


Senator MILLEN - He had to carry a fifth part of the odium which marked the words thrown at the High Court.


Senator Givens - Do you not think that these invidious comparisons are somewhat odious ?


Senator MILLEN - They are ; I do not want to make them. I tried to put the matter fairly without wishing anything I said to be in the slightest degree a reflection on Mr. Justice Higgins, or his awards. All I say is that these awards have appealed to the sympathy, the belief, the confidence of a large number of the unionists of Australia, and it is, perhaps, therefore, not unreasonable that they should turn to him. But he, like ourselves, is only a creature of the moment. It will be folly merely, because we happen to have a Judge who is popular administering the law, to centralize everything in that one Court, unless it can be shown that the centralization itself, apart from the Judge, would be a good thing. If Mr. Justice Higgins were not President of the Arbitration Court, or if his awards had not been received so favorably, I do not think that there would be the effort which- is made to-day to centralize everything under Federal jurisdiction.


Senator Rae - Do you not see that the similarity of conditions in various States is the real reason for the cry for uniformity ?


Senator MILLEN - No. We need not disguise the facts. Senator Rae understands the matter perfectly, and there is no one who cares less about disguising anything when it suits him. The honorable senator knows perfectly well that there is a strong desire to bring all these matters under the jurisdiction of the Federal Arbitration Court. That was one of the objects also of the last referenda - the centralization, as far as possible, of the control of industrial conditions throughout Australia in the Federal Courts. I am not taking any exception to it when I say that, in my opinion, it is not because there is a belief founded upon any demonstrable advantage to be derived from this centralization in one Court that this is proposed. That is not the motive. I believe that the real reason is that the decisions of Mr. Justice Higgins have appealed very largely to public sympathy.


Senator Rae - We are not foolish enough to believe that Mr. Justice Higgins is immortal.


Senator MILLEN - That may be so; but people are often foolish enough to regard the apparent advantages of to-day, and to disregard, it may be, the disadvantages of to-morrow. I shall not follow that matter up any further, except to say that if my statement is correct, that the Bill is due to a desire to get before Mr. Justice Higgins, whatever advantage may be derived in that way will be very dearly paid for.


Senator de Largie - Mr. Justice Higgins' awards have been no more successful than those of Mr. Justice O'Connor.


Senator MILLEN - I do not wish to enter into a comparison of that kind at all.


Senator de Largie - But the honorable senator is doing it.


Senator MILLEN - No. As a matter of fact, I think that Mr. Justice O'Connor gave only one award.


Senator de Largie - I think that he was as long at the head of the Court as Mr. Justice Higgins.


Senator MILLEN - Time has been running so rapidly, and, I hope, so pleasantly, with Senator de Largie that he has not recognised how it has gone, but I am sure he is quite wrong in suggesting that Mr. Justice O'Connor was President of the Federal Arbitration Court for as long a period as Mr. Justice Higgins has been, or that he dealt with anything like the same number of cases. I am, however, reminded by the honorable senator's interjection that there was no great demand for this centralization in the Federal Court when Mr. Justice O'Connor was at the head of it. It has been only of late when, as I say, Mr. Justice Higgins' awards have appealed very largely to the sympathy of people outside, that we have had this great demand to centralize everything under the jurisdiction of the Federal Arbitration Court. I say that is the reason for this Bill.


Senator Rae - There were scores of unions in Australia awaiting the passing of the Federal Arbitration Act, in order to come before Mr. Justice O'Connor.


Senator MILLEN - Before the Federal Arbitration Court was established, the only unions that ever talked about it were those that could not get an award under a State Act.


Senator Guthrie - All the Inter-State unions registered.


Senator MILLEN - Because their circumstances rendered it necessary. But to-day there are hundreds of bodies who can, and many of whom are, working under State jurisdiction, who desire to come under the Federal Court.


Senator St Ledger - That is the object of this Bill.


Senator MILLEN - Yes, and it was the object of the referenda. If I am right in my surmise, whatever immediate and temporary advantage may be derived from the awards of a particular Judge, those who will reap benefit from them will pay a very high price for it. Having obtained it by centralizing everything in the one Court, they will find, sooner or later, that the whole thing must break down when an attempt is made to deal in this way with our varied industrial conditions.







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