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Wednesday, 23 July 1930


Senator McLACHLAN (South Australia) . - In dealing with legislation of this character, which has for its object the settlement of differences between humans, in the interest of not only the humans particularly concerned but also society generally, there is certain to be a considerable amount of debate and divergence of opinion. When we examine the bill in its larger aspects and keep in mind the utterances of Senator Daly we can come to the one conclusion only - that it is an effort on the part of the Government to substitute conciliation for arbitration. That, however, is not altogether unexpected, because a certain section of the trade union movement has for some considerable time denounced arbitration as a method of settling industrial disputes. When the unions were asked by the Attorney-General of the previous Government whether they desired the abolition of penalties for lockouts and strikes, no reply could be obtained from them. Apparently, there was a division of opinion among them. Speaking for myself, I deeply deplore the action of the Government in doing something which, in my opinion, amounts to the jettisoning of compulsory arbitration. I have always held, just as Senator Pearce put it this afternoon, that there is no real reason why the rule of law should not be applied to industrial questions as it can be applied to civil disputes; and I can see in the proposal to repeal the penal provisions against lockouts and strikes a weakening on the part of the Government in its support of industrialarbitration. Possibly, it has come about because of a belief in the minds of Ministers, based upon failure in the past, that it is impossible to successfully administer these provisions. While on that subject, let me say that in my opinion, we have proceeded timorously upon the question of industrial arbitration. One would immediately say that on the introduction of this system a strong and determined effort should have been made to impose on the people, who up to that time had been free from this form of jurisprudence, a stern and relentless rule of law for a time, and that, in the course of time, the people would have subordinated their view, as they have done under other branches of jurisprudence, to the will of the legislature in this regard. I cannot help feeling that no such determined effort has been made, and I cannot say that I blame any one, because there is a strong body of public opinion apparently favouring the abolition of the penalties for lockouts and strikes; but I venture to say that it is the beginning of the end. I have stood for the adoption of arbitration as a principle of jurisprudence in all sincerity, and to see this breach, as it were, made in the legislation of the past, is not altogether pleasing to me.

In moving the second reading of the bill the Minister (Senator Daly) pointed out that the penalties for lockouts and strikes are to be abolished, and that serious efforts are to be made to settle industrial disputes by means of conciliation. If it is possible to prevent or to settle industrial disputes by conciliation rather than by introducing the machinery of the law, particularly in view of the state which arbitration has now reached in this country, we should do so; but I contend that the work of conciliation and that of arbitration should be entirely separate. We cannot expect a person to act as a conciliator one day, and on the following day to assume all the judicial responsibility of an arbitrator.We shall endeavour to persuade the Minister to separate these two functions as we feel that by so doing he will be giving effect to the policy which he enunciated in his second-reading speech. Industrial arbitration has far-reaching effects, as a close perusal of the existing act will show. The present Conciliation and Arbitration Act not only governs the relationship be- tween employers and employees, but is framed in the interests of the whole comm unity. In the definition section and in other portions of the act reference is made to the interests of the community.

In these circumstances we have to study this measure not only from the viewpoint of the relationship between the parties to a dispute, but with due regard to its effect upon the community as a whole. To repeal the penalties with respect to lockouts and strikes at this juncture savours of hauling down the flag in face of economic pressure. It may be that compulsory arbitration, as I see it, cannot weather the economic storm which we are now experiencing; but at all events this is a gesture of the party in office which is absolutely inconsistent with the principles which it has staunchly supported in the past.


Senator Daly - I suggest that the honorable senator should read the correspondence which we had before us in Adelaide prior to the last general election when I advocated the deletion of these penalties.


Senator McLACHLAN - That may be so; but it is an abrogation of the principles of compulsory conciliation and arbitration. The Government is making the first breach in the wall of compulsory arbitration, and we shall see whether the work which it is doing is in the best interests of the Australian people.The abolition of these penalties shows that the Government is forsaking the rule of law for the rule of tooth and claw. Various points emerge from a consideration of this measure, the most important of which perhaps is that relating to the appointment of conciliation commissioners. As I have already indicated the work of these commissioners should be entirely separated from that of arbitrators, and I shall endeavour to ensure that no conciliation commissioner shall have arbitral power. The exercise of arbitral power by a conciliator is an intrusion into the field of arbitration and is likely to promote discord. The Government has power under the existing law to appoint conciliation commissioners. Speaking subject to correction, I believe that the late Registrar of the Commonwealth Court of Conciliation and Arbitration was the only conciliation commissioner appointed under the act; but the Government, could, if it wished, appoint additional conciliation commissioners without amending the act. The work of the Arbitration Court has been decreasing in consequence of economic conditions. The AttorneyGeneral (Mr. Brennan) stated- in another place that one distinguished judge of the court had been removed to another jurisdiction, because of lack of work, and that the Chief Judge of the Arbitration Court was now occupying some of his time on other than arbitration duties. One honorable senator suggested that there had been an unnecessary delay in the hearing of cases before the Arbitration Court; but owing to economic conditions there has not been any pressure upon the court during the past few months.

I accept the assurance of the Minister that great care will be exercised in the appointment of conciliation commissioners to undertake this important work. I deplore the criticism, both inside and outside of Parliament, of men entrusted with important judicial work which, in many instances, is most distasteful to them. I have a good deal of sympathy with a person occupying a judicial position who has to decide the wages and conditions under which men shall be employed. In some cases he is compelled to award reduced rates, and if. in doing so, he should describe his task as disgusting - it would, perhaps, be better to term it distasteful - there may be some justification for doing so. It is distasteful to the Leader of the Government in this country to direct that the work in certain departments shall be rationed, [t is a responsibility of the Prime Minister which cannot be avoided, but which I am sure is distasteful to him. Those occupying judicial positions are under a solemn oath to do justice to both parties, and I am sure that the honorable senator who referred to the utterances of Judge Dethridge will realize that, if his duties are not disgusting - as he termed them - they are at times most distasteful. He is called upon not merely to settle a trivial dispute between two persons, but has to determine the conditions which shall operate between a large body of employers and employees. In doing what he knows to be right, he must at times find his task exceedingly distasteful. I trust that only those possessing the highest qualifications will be selected as conciliation commissioners. When Senator Dunn informed us that he was once an industrial inspector in New South Wales, I could not help thinking that he would be as much of a misfit in the position of conciliation commissioner as I should be. I can imagine the honorable senator, with his stalwart form, vigorous voice and determined manner, approaching the parties to an industrial dispute and striking terror into the heart of the employer, and also of the employees who did not know him.

The bill also repeals a section in the 1928 act providing foi the holding of secret ballots. The Leader of the Opposition (Senator Pearce) indicated very forcefully thi? afternoon that the Government's action in this respect is not in conformity with its industrial policy, or with the relationship which should exist between a union and its members. It is undemocratic. Every unionist, however humble, should have the right to express his views on at) industrial matter through the ballot-box. The Assistant Minister (Senator Barnes) will remember that when industrial trouble occurred at the Mount Lyell mine in 1921, the members of the union held a ballot, when 90 per cent, voted against a strike. Surely th'e Assistant Minister, who has always been prominently associated with unionism, will admit that the men should have an opportunity to express their views, and that they should not be influenced by the minority. Even Homer nods occasionally. We have illustration of this in the recent award relating to tramway and railway employees in New South Wales. A few weeks ago their leaders strongly urged them to strike against an award, but the good sense of the great body of trade unionists in the employ of the Railway Department of New South Wales realized that that wa3 not the proper course to take. The men appreciated the difficulties confronting the management of that greagovernmental industry; they knew it could be saved only by mutual sacrifice and goodwill. So when a ballot was taken, it was found that the advice given by the leaders was not endorsed. The men decided not to cease work. On the contrary, they resolved to assist the Railway Commissioners in New South Wales- in the task they had set themselves to improve the finances of that Government business enterprise. We all regret their plight. Senator Dunn has no monopoly of sympathy for these people. We should all be glad if the position as to wages and conditions enjoyed could be maintained; but we realize that the present is not the time to stand for that principle, at all costs. Why should not the good judgment of the rank and file of the trade union movement be given an opportunity to decide by secret ballot whether or not they should accept an award of the court before being launched upon some illconsidered strike actuated perhaps by ill-will or hatred on the part of their leaders towards someone else on the employing side of industry? On no right principle canthe elimination of this provision from the act be justified.

This afternoon while the right honorable the Leader of the Opposition (Senator Pearce) was speaking, the Minister in charge of the bill (Senator Daly) interjected that it was impossible to enforce thetaking of a secret ballot. If that is the Government's view, and if it finds general acceptance, then the only logical course to adopt is to jettison, not merely these provisions relating to the taking of a secret ballot, but also the whole of the arbitration system. But why should we haul down the flag for the unrighteous? After all, it is only a right principle for which we of this side of the Senate are fighting - the principle that the rank and file of trade unionism should have an opportunity to decide these issues. If we are going to abandon the citadel in this way, it would be as well if we abandoned all those great ideals which we have held with regard to industrial arbitration, and allowed disputes to be settled, as formerly, by rule of violence, by strikes, intimidation, and perhaps starvation of employees. I cannot understand why trade unionists are not being urged by their leaders and representatives in the various branches of the Commonwealth and State legislature to stand by this most democratic principle of the secret ballot. Before the rank and file of trade unionists are forced to strike, and perhaps commit outrages against the law, they should individually have an opportunity, at the dictates of their conscience and good sense, to say what are their wishes in the matter. These acts of intimidation, as we know, have in the past, been winked at, not only by the industrial movement, but also by the political side of the Labour party. Honorable senators . supporting the Government appear to think that they are the only people who have any consideration for the employees in industry. Of course that is not the position at all. It is the duty of all members of this chamber to pay particular regard to the interests of not only the employees in industry but of all sections in the community. I stand for the freedom of the rank and file to express their views by means of the secret ballot.The tyranny which is being exercised by the industrial leaders is bringing all this trouble upon trade unionism. Certain industrial leaders claim the respect of every one because they guide the affairs of their unions wisely and well, and, wherever possible, avoid industrial trouble. Others, unfortunately, are forever looking for trouble. We never hear from them any words of guidance that are likely to be of help in the settlement of industrial troubles. We have heard this afternoon of what, happens at some of these trade union meetings. The right honorable the Leader of the Opposition related some of his personal experiences. As we all know the language used in the early days of the movement and the style of oratory then employed were mild compared with what, passes for currency in certain trade union circles to-day.I have no doubt that some of our friends opposite also can speak from experience and know quite well the kind of language that is hurled at those members of the rank and file, who, in trade union meetings, advocate tolerance or a little discretion in the management of their union affairs.


Senator Barnes - Where did the honorable senator get all his knowledge of the procedure at trade union meetings?


Senator McLACHLAN - I will tell the Minister. On more than one occasion members of trade unions who were being oppressed by those who should have been their protectors have consulted with me, and have laid bare their souls. Consequently I have an intimate knowledge of all that transpires at trade union meetings during times of excitement. My honorable friend has not. an absolute monopoly of knowledge concerning such matters. It may surprise him to learn that amongst the rank and file of the trade union movement there is a very strong body of opinion in favour of the retention of this provision for a secret ballot.


Senator Dunn - Do the lawyers approve of the secret ballot in their organization?


Senator McLACHLAN - Wo govern our affairs by the rule of law. If trade union matters were controlled in the same way, there would be no cause for complaint whatever.

There was some discussion this afternoon concerning the shearers' award, which, I believe, is still sub judice. I should not have referred to it were it not for the fact that it has already been mentioned in the debate. That great organization which represents the shearers - I refer to the Australian Workers Union - has lived by arbitration, and it has done very well indeed. Arbitration has made the Australian Workers Union. It may therefore not be out of place if I remind it that those who live by the sword must expect a certain fate to overtake them eventually. Does the Australian Workers Union intend to enjoy all the benefits of arbitration as it has done while the industry was prospering, and now, when it is on the downward grade, refuse to play its part in maintaining the economic soundness of that great industry? I venture to think that it. is ill advised even to discuss the possibilities. All I care to say now is that no industrial organization can expect to have it both ways. If it believes in the principle of arbitration, it should stand by it at all times, and if it considers that an award is not what might have been expected, it should apply for a variation and fight the matter in the courts. It would appear, from recent happenings, that the brand of arbitration which some honorable senators would desire to have is that system under which they could nominate the arbitrator. Obviously, that would be impossible. Society would not stand for that.

One or two other principles in the bill call for a word or two of comment. Omrelates to the substitution of the Arbitration Court for the High Court. Thai important principle, I suggest, can better be debated in committee. In my view, the proposal is unconstitutional, and can have no effect. Tien there is thcmatter mentioned by. Senator Dunn, namely, the exclusion of members of the legal fraternity from the Arbitration Court. I have never had a brief in the Arbitration Court in my life, but I have been associated with a number of men who have, and I can say confidently - the Minister in charge of the bill would confirm what I am about to say if he were present - that the presence of lawyers iri the court, has resulted in the proceedings being appreciably shortened. It seems to me, notwithstanding .the views that may be expressed by some of my friends on this side as well as in the ranks of Government supporters, that it would be a mistake to exclude them from any part in arbitration proceedings. On many occasions I have been present during the conduct of cases before the Arbitration Court, and I know that the proceedings have been expedited simply because both the lawyers and the judges were thoroughly conversant with their work. Arbitration proceedings conducted in an orderly manner must be more satisfactory in every way than proceedings conducted according to "Rafferty" rules. It should be remembered, also, that besides members of the legal profession, a considerable number of industrial officials who, by sheer brain power and industry, have qualified themselves to make excellent advocates, may also be prevented from appearing in the court if the bill is passed in its present form. 3 suggest, therefore, that, in the interests of speedy and satisfactory settlement of industrial disputes, the Senate would be well advised to reject this particular provision. I have no personal interest in the matter at all. I am in the position of an onlooker, and as such I am able to see more of the game than many of those engaged in it. I say definitely that if members of the legal profession are allowed to appear in the court, a great deal of time will be saved in the hearing and settling of industrial disputes.


Senator Barnes - It cost my union £8,000 to obtain an award from the court.


Senator McLACHLAN - Which the Honorary Minister's union is well able to afford. The bill proposes to abolish another form of security. I regard it as a necessity in industrial law that some bond or security should be put up, so that the court, if the necessity arises by reason of the existence of lockouts or strikes, may levy upon the offenders. I admit that it would be impracticable to levy tribute upon thousands of employees, but if proper securities were lodged, such a hard-headed unionist as the Honorary. Minister would think twice before he countenanced any breach of an award by his union. One of the first principles of justice should be that people who desire the benefits of an award and bring their cases into court for settlement should be prepared to abide by the result. The lodgment of a bond or similar security is the one hope of making arbitration successful. We have frequently seen awards of the court flouted when there has not been any speedy method by which tribute could be levied upon the defaulting parties.

Another matter that appears to me to be of great importance is the repeal of the provision that enables the court to ascertain whether a dispute could be best dealt with by a State or the Federal tribunal. Surely that is a thing that could be left to the discretion of the Arbitration Court judges. Their judgment has been exercised on more occasions than one, with advantage to the country. I put it to the supporters of the Government, is it not better to have a tribunal conversant with local conditions to deal with a dispute that has no interstate ramifications?

The bill also contains a provision which prevents any one entering into an agreement with another to perform work in accordance with the terms of an award. That, surely, the Government should not persist in. Still another extraordinary provision, is one to the effect that a man need not inform his employer as to what union he belongs. The employer may have men working under half a dozen different awards, but he is denied the right to ascertain from an employee the union to which he belongs, in order to regulate his wages accordingly. Surely those are matters that have escaped proper consideration by the Government, which it should give way upon when the bill reaches its committee stages.

There is also a remarkable clause, the last one in the bill, that repeals the provision enabling the court to punish for contempt. The provision making contempt a statutory offence remains, but the power of punishment by the court is taken away. What an extraordinary position in which to place this powerful court! The smallest police court in the land, the most insignificant petty jurisdiction for debt, is vested with power that is denied the Arbitration Court. Honorable senators who have interested themselves in arbitration will recollect the occasion when a well-known journal in this country made some comments reflecting upon a distinguished judge of the Arbitration Court. Under the proposed new clause that judge would have to prosecute the proprietors of the journal in some police court ! Is that the standing the court should have in the community; to have to call to its aid some petty State jurisdiction to inflict punishment for contempt committed in the Arbitration Court? Is that the respect in which we should hold the court? It is wrong in principle. The other penalties are treated in the same manner, and I trust that the Minister and those supporting him will agree to an alteration when the bill goes into committee. If arbitration has failed the fault lies with the legislature, which has endeavoured to impose upon the court the decision in too many matters of detail. The great framers of this legislation never contemplated that a judge should be obliged to inquire into the prices of some hundreds of pieces of clothing. They never thought that all this minutiae of detail, covering hundreds of pages in various awards, were to be investigated by judges of the Arbitration Court. They desired that judges should direct their attention to the main points at issue between the parties : wages and hours. If we had confined the court to those issues and left the details to be worked out by conciliation tribunals, or by conferences between parties, throwing upon them the obligation to settle those details, there would not have been that failure of arbitration about which we hear so much to-day.

My colleagues and I feel that the Government has a right to have some of its amendments accepted. We feel, on the other hand, that the bill requires a great deal of trimming, but that there should be no division on the second reading of the measure.







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