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Wednesday, 4 December 1912

Senator GUTHRIE (South Australia) . - I intend to support the Bill, but I wish to direct the attention of the Government to what I regard as one or two flaws. In the first place, take the definition of " Commonwealth " - " Commonwealth " includes any Territory which is part of the Commonwealth -

That is definite ; we know exactly what it means - and any authority under the Commonwealth.

I am not sure as to whether that definition includes Papua.

Senator McGregor - It does.

Senator GUTHRIE - I do not think it does.

Senator Vardon - What is the meaning of "under the authority"?

Senator GUTHRIE - I think that it is intended to meet the cases of public servants who will be employed in erecting Commonwealth buildings in London. Those persons may, if they choose, come under this measure rather than under the Imperial Workmen's Compensation Act. I think that paragraph c of sub-clause 2, clause 4, supports that view. If we are going to include the public servants of the Commonwealth in this Bill, why should we not at the same time include employes of the Government in Papua or in Norfolk Island, if that place be taken over by the Commonwealth, as has been suggested? Senator St. Ledger has raised a most important question, and has justified the amendments foreshadowed by Senator Stewart. A workman in private employ, if injured, can at the present time claim damages under the Workmen's Compensation Act if his injury is the result of a pure accident, the blame for which cannot be attributed to any one. If the injury is due to negligence on the part of the employer or some one under his authority, or is dueto defective machinery or gear, the employe of the private employer has a right to sue for damages under the Employers' Liability Act. But employers of the Commonwealth Government will not under this Bill be given that privilege.

Senator Lt Colonel Sir Albert Gould - Because they will be able to claim damages under this Bill, which provides for as much compensation as they could claim under the Employers' Liability Act.

Senator GUTHRIE - I question that statement very much. The compensation which may be claimed under the Employers' Liability Acts of some of the States is unlimited, and is left to the Courts to decide. I believe that is the case under the Western Australian Act. But in that case the injured workman or his dependants, if he has died as the result of his injury, have the onus thrown upon them of proving that the injury was caused by defective machinery or gear. If there is wilful neglect the workmen in private employ may claim damages at common law, and in that case a jury would fix the compensation.

Senator Lt Colonel Sir Albert Gould - But at common law the injured workman would get nothing if the injury were caused by a fellow employe.

Senator GUTHRIE - That is so. That was judge-made law, and was given effect to as statute law in the Employers' Liability Act. But it was to overcome those difficulties that the Workmen's Compensation Act was passed. The Imperial Parliament, in their wisdom, when passing the Workmen's Compensation Act, preserved to injured workmen the right also to take proceedings at common law or under the Employers' Liability Act. Under the English law if an injured workman fails in a suit for damages at common law or under the Employers' Liability Act, he may take proceedings under the Workmen's Compensation Act. An employe of the Commonwealth would not, under this. Bill, be given a similar privilege. If the Commonwealth is carrying on any work with defective machinery, and as the result a Commonwealth employe is injured, why should not he or his dependants be at liberty to take action under the common law or under the Employers' Liability Act, and if they fail at common law because the injury was due to the negligence of a fellow -workman, or under, the Employers' Liability Act because they could not prove defective machinery or gear, still, have the right to proceed under this Bill. If the workman is to be denied this privilege, I agree with Senator Stewart that the compensation provided under this Bill should be greater than it is. Paragraph e of clause 4 reads -

If it appears that the claimant has a claim for compensation for the injury under any other law in force in the Commonwealth or any other place, compensation under this Act shall only be allowed upon the claimant's undertaking not to claim compensation for the injury under any such law.

I assume that the words " any other place" are used to cover London, or any other place in which Commonwealth works are being carried out. For instance, they would cover Glasgow, where we are having our men-of-war built.

Senator Stewart - We should not be liable for injuries to workmen in Glasgow.

Senator GUTHRIE - We should. The Bill makes the Commonwealth liable for injuries to workmen in the employ of the Commonwealth Government, even though they may be working under a contractor.

Senator Stewart - Special provision could be made with a contractor.

Senator GUTHRIE - The Government would have, of course, their remedy against a contractor. Under the paragraph which I have quoted, a claimant has to enter into an agreement not to make a claim forcompensation under any other Act.

Senator Henderson - So he has under every Workmen's Compensation Act.

Senator GUTHRIE - No; he is not required to do so under the English Act, or under the State Acts..

Senator Henderson - He cannot obtain compensation under two Acts.

Senator GUTHRIE - No; but he can claim compensation under more than one Act. If his suit is not successful under one Act, he can take his chance under another. If he makes a claim at common law, and is beaten on the question of common employment, and if he makes a claim under an Employers Liability Act, and fails to prove negligence on the part of his employer, he can still prosecute his claim under a Workmen's Compensation Act. Why should we prevent a workman in the employ of the Commonwealth Government from obtaining relief under this Bill merely because proceedings to that end taken under another Act have failed? Leaving that matter, I come to deal with the question raised by Senator Sayers, which is not provided for by this Bill at all. The honorable senator really raised the question of compensation to the dependents of Commonwealth employes who die as the result of sickness following upon their employment in dangerous occupations. We have a cordite factory, and though I do not know the process followed in the manufacture of cordite, I should not be surprised to learn that it engenders certain diseases. We have a small arms factory in which a very great quantity of lead is used. In ship-building also a large quantity of lead is used.

Senator McGregor - What for?

Senator GUTHRIE - The honorable senator must know that a ship must have drain-pipes, and that, as a rule, they are made of lead.

Senator McGregor - Their manufacture is not an unhealthy occupation. A painter's job is worse than that.

Senator GUTHRIE - We know that lead poisoning seriously affects painters. I know many painters who have had to give up the business because they have been affected by lead poisoning. In some of the State Acts, and in the South Australian Workmen's Compensation Act particularly, special provision is made in the case of unhealthy occupations, and special diseases, with the occupations in which they are contracted, are set out in the schedule. For instance, I find the following

Anthrax - Handling of wool, hair, bristles, hides, and skins.

We have a woollen factory in which men will be engaged in all these occupations, and the employes of the factory will be liable to suffer from anthrax? I quote further from the schedule to the South Australian Act -

Lead poisoning or sequela. - Any process involving the use of lead or its preparations or compounds.

Mercury poisoning or its sequela. - Any process involving the use of mercury or its preparations or compounds.

Phosphorous poisoning or its sequela. - Any process involving the use of phosphorous or its preparations or compounds.

Arsenic poisoning or its sequela. - Any process involving the use of arsenic or its preparations or compounds.

We have clothing and saddlery factories, and may shortly be making leather, in the manufacture of which chemicals are freely used. We have entered upon the manufacture of certain articles, and if the occupations of those engaged in their manu facture is not healthy, we should deal with the employes as the State Parliaments in their Acts have dealt with employes engaged in similar occupations conducted by private persons. We should deal fully with this matter, though I should not be prepared to go as far as Senator Sayers suggested, because we are not in. this measure dealing with the whole of the population. The question of insurance against sickness will have to be dealt with by the Commonwealth at an early date. We are lagging behind in this matter. England has taken the lead, and probably before long the Government of the Commonwealth will find it necessary to follow upon similar lines, and will, I hope, improve upon the British legislation on the subject. However, that is not the question before us now. The terms proposed in this Bill are fairly liberal, but I do not think it goes far enough, and a workman or his dependants should be entitled to recover damages for any injury due to the fault of any Commonwealth authority.

Senator Henderson - There is that now. His dependants can sue the Commonwealth under common law.

Senator GUTHRIE - And if they are unable to prove any defect, they receive no compensation whatever. Even Senator St. Ledger will admit that it is ability in Court which usually carries the day, and the Government, being able to pay for the very best legal talent to defend themselves, will have a better chance of winning than will the dependants of a poor workman in a case of that sort. I hope that provision will be made to give the dependants of workmen killed in Commonwealth employment, who obtain only nominal damages, the right to choose whether the same Court shall not try their case under the provisions of this Bill.

Senator Lt.-Colonel Sir ALBERTGOULD (New South Wales) [9.3].- Like other honorable senators, I recognise that the obligation on the part of employers to pay compensation to their employes in cases of accident is so far accepted as a principle as to be beyond the region of serious discussion But I take it that under this Bill the Government desire to get rid of the possibility of any question being raised as to whether or not an action against them for compensation for injury sustained by a workman is maintainable. The theory is that, ordinarily, the Government are not liable to be sued by the subject, although it has been recognised for years that the subject should be entitled to apply to them for compensation. This Bill will effectually settle the question of whether or not the Government are liable if an action be brought against them for compensation. Then the question arises, Should the liability of the Commonwealth be similar to that of any ordinary employer, or should it be greater ?" I think that in a Bill of this character it will be quite sufficient if the Government accept the responsibility of an ordinary employer. But the question has been raised by Senators Stewart and Sayers as to whether we ought not to extend that liability. Personally, I think that that question ought not to be seriously considered in debating a Bill of this kind. In the first place, we have to bear in mind that whatever compensation is paid by the Commonwealth must come out of the pockets of the people. I do not suggest that that is a reason why the Government should treat any employe unjustly. But I do suggest that it is a reason why they ought not to pay more than the amounts which have been suggested as reasonable compensation for injuries sustained by employes of the Commonwealth in the discharge of their duties. A private employer is liable to pay compensation to the extent of three years' wages.

Senator Henderson - Or£400.

Senator Lt Colonel Sir ALBERT GOULD - I accept the honorable senator's statement. This Bill provides for a liability of £500, so that the Government are not failing on the side of generosity. "We must take into consideration the earnings of a man before we car* decide the amount of compensation to which his dependants are entitled. One man may be earning£1,000 a year, and another only £100 a year and the former may leave dependants who are in just as necessitous circumstances as are the latter. In the case of railway accidents, we know that at one time no limitation was imposed on the amount which the dependants of a man who had been killed might recover. If it could be shown that his earnings were£4,000,£5,000, £6,000, £7,000, or £8,000 a year, the compensation payable to them mounted proportionately. But eventually it was thought that that practice did not deal fairly with the people of this country. As a result, in nearly all the States a limitation has been imposed upon the amount of compensation payable in such circumstances. I think that the payment is limited to , £2,000. In this Bill the compensation payable has been limited, because the measure is intended to apply only to workmen who meet with accidents. If a man who is not a workman meets with an accident, his family have to do the best they can for themselves. He has no power to take action under any of the measures dealing with an employer's liability. But if he is entitled to bring an action, he has to face the question of contributory negligence, which is a very serious one, and he has also to face the question of negligence on the part of a fellow-employe, which is a still greater difficulty.

Senator Henderson - I can scarcely conceive of a position of that kind.

Senator Lt Colonel Sir ALBERT GOULD - Suppose that the honorable senator and myself were working together, and that the honorable senator was particularly careful, whilst I was particularly negligent. Suppose that, in consequence of my negligence, the honorable senator met with an accident which resulted in his death; until the Employers' Liability Act came into existence his family were not entitled to any compensation. The Government say in this Bill, " We do not want to be placed in a different position from that of the ordinary employer." But they have not yet stated whether they are prepared to accept the ordinary common law liability.

Senator Henderson - Does the honorable senator imagine that under this Bill it is possible - in the case of the injury or death of a workmanin Commonwealth employment - for the Government to avoid paying compensation to his dependents?

Senator Lt Colonel Sir ALBERT, GOULD - Not under this Bill.

Senator Vardon - Will the Government be responsible for the neglect of another workman ?

Senator Lt Colonel Sir ALBERT GOULD - They will be, though they might not be liable under common law. In a measure of this character, I do not see how it is possible to provide for the payment' of compensation in the case of disease occasioned by the employment, and it may be questioned how far such a principle should be applied. If a man suffers an illness in the course of his employment, it may be his family ought to be compensated just as much as though he had suffered injury as the result of an accident. But we cannot consider that matter in connexion with this Bill. Senator Sayers pointed to the case of the hardy pioneer, who meets with a serious accident, and leaves his family in necessitous circumstances, or who, perhaps, dies of consumption. But I would point out that we can deal with such cases by means of an insurance system, under which every man in the community would be obliged to contribute a certain sum weekly. I hold that we should never take away from a man the sense of responsibility that he owes to his wife and family - the obligation which he feels he is under to make proper provision for them.

Senator Needham - What chance has he of making that provision?

Senator Lt Colonel Sir ALBERT GOULD - I am not arguing that matter.

Senator Needham - Then why introduce it?

Senator Lt Colonel Sir ALBERT GOULD - Many men who are earning a fair income could afford to put by a few shillings weekly for the purpose of life assurance. At the present moment, by means of a contribution of 6d. or is. per week to a system of industrial life assur.ance, a man. may make a certain measure of provision should accident befall him. If he takes upon himself the responsibility Of marriage, it is his duty, as far as he can, to make provision for his wife and for his children.

Senator Needham - What provision can some men make?

Senator Lt Colonel Sir ALBERT GOULD - We have no right to take away from any individual the sense of responsibility. I object to every one leaning up against the Government for support.

Senator Needham - The honorable senator has always done that.

Senator Lt Colonel Sir ALBERT GOULD .- That kind of thing takes the stamina and grit out of a people.

Senator Henderson - That is rather a callous argument in connexion with this Bill.

Senator Lt Colonel Sir ALBERT GOULD - No, I recognise that it is quite fair that, when a man gives his services for a certain wage, if he meets with an accident he should be compensated. But no one can fail to realize the fact that great charges are being placed upon the Commonwealth under legislation which we have passed. There are, for instance, the obligations under the Old-age and Invalid Pensions Act. I take no- exception to them. I supported them. But they inr volved a great liability. Then there isthe maternity allowance, as to which a great deal more might be said. Now we have thisWorkmen's Compensation Bill, which, however, stands on an entirely different plane. I think it would tend to make men feel' much more independent and responsible if they had to contribute some small sum to a fund from which they would draw benefit in the future. People allude to the German system and praise it, but they; always quietly ignore the fact that those who receive benefits under that system, have to make contributions.

Senator Henderson - Does the honorable senator forget that he has been trying, to add to the responsibilities of the Commonwealth by claiming pensions for members of the Naval and Military services?

Senator Lt Colonel Sir ALBERT GOULD .- No, I do not. This Bill expressly excludes the Naval and Military services. I believe that under regulationsthey are entitled to certain compensationon account of accidents caused in their ordinary employment. If we had themisfortune to be involved in war, no doubt' compensation would be allowed to the dependants of those who lost their lives or were seriously injured. The regulations provide for members of the Naval and MilitaryForces, but my desire is that their compensation shall be guaranteed to them byStatute law. It ought not to be at thewill of the Governor-General to makeregulations. Parliament is the properauthority to deal with a matter of thekind. With regard to the recovery of compensation, it has been suggested that it would have been very much better had' this Bill followed the wording of theEnglish law. I quite agree with that, because the interpretations obtained under English law are of very great valueMoreover, when we adopt an English provision, we attain a certain degree of uniformity in law, which is very desirable,, and materially assists us in interpretation. I take the Bill to mean, simply, that if » man is entitled to compensation he has tomake up his mind whether he will obtainit under this Bill or whether he will takeadvantage of the common law or of any other law which is available. But, having made his choice of other means, hecannot turn round afterwards and say that he is entitled to compensation under thismeasure. If honorable senators turn to> clause 4 they will find that paragraph b of sub-clause 2 provides that a workman -shall not be entitled to. recover compensation both independently of and under this Bill. He makes' his choice. I think that is fair. Paragraph e then provides that-

If it appears that the claimant has a claim for compensation for the injury under any other law in force in the Commonwealth or any other place, compensation under this Act shall only be allowed upon the claimant undertaking not to claim compensation for the injury under any such law.

What has the claimant to do? He simply says, " I know that I have a right to compensation, and I am going to seek it." If he seeks it under any other law than this, I do not think that he is placed in a disadvantageous position.

Senator St Ledger - Suppose he claims under the common law, and fails?

Senator Lt Colonel Sir ALBERT GOULD - If a claimant makes a claim under the common law, and fails, I do not think that he is entitled afterwards to claim under this Bill. He has made his choice.

Senator Guthrie - Suppose he claims under the common law, and gets nominal damages; can he then claim under this Bill?

Senator Lt Colonel Sir ALBERT GOULD - I do not think he can. It seems to me that that is all that we can reasonably expect. The Bill is on the lines of the Seamen's Compensation Act, and it is just as well to keep kindred measures in line. When compensation is granted to the family of an injured individual material assistance is given. ' I am not complaining about that. But there must be some limitation, and it is very much better that all our laws dealing with kindred subjects should run on the same lines. Suppose that one man is employed under the Government and another by a rprivate employer, and both meet with accidents. Why should the man employed by the Government be entitled to a greater amount of compensation than the man employed by the private employer? If in the one case there is a. thousand pound limitation, by parity of reasoning, the same should apply in the other. There should be no distinction between the two. A question has been raised in respect to contracts. Senator Millen has mentioned the case of the Commonwealth Government's contract with the New South Wales Government for the construction of vessels at the Fitzroy Dock. I doubt very much whether the Commonwealth Government are in a position to bind the New South

Wales Government with . respect to an existing contract. If they were in such a position, it would be unfair, because the State contracted under the existing law. It may be that the employe would have a right of action against the State Government in case of accident. If that is the case there is no difficulty. . The simplest plan would be, in regard to future contracts, for the Commonwealth Government to make an express stipulation that workmen should be liable to compensation under this Bill. If such a condition did not suit the State, it would not accept the contract. On the whole, I think that this Bill is framed on right lines, and that it is fair and reasonable. We should accept it, and pass it into law. If we are able to improve it in Committee, I shall be glad to assist in so doing.

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