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Thursday, 24 July 1930


The PRESIDENT (Senator the Hon W Kingsmill - The recurrence of these conversations suggests that these are matters for discussion in committee, rather than in a second -read ing debate.


Senator LAWSON - The Government, proposes to wipe out certain penalty sections of the existing act. For what they are worth, the laws of the States may operate with respect to those ' particular offences - if offences they are. I repeat that the Government may be doing something which will endanger the whole arbitration system, and may even lead to its ultimate downfall. I think that I am correct in saying that in union circles there was a revolt against the penal provisions of the existing law because they were considered to be drastic and unfair, and that the removal of those provision? was promised by the Prime Minister in his policy speech. I still retain my opinion with respect to the necessity of interpreting such provisions in the federal arbitration law, but I do not know whether we ought to allow the Government to carry out its policy in thai respect.

Another provision relates to the appointment of conciliation commissioners. Personally, I believe that the more conciliation is employed in the settlement of industrial disputes, the better it will I* for all parties. I have always favoured round-table conferences, at which both parties get together and exchange views in an endeavour to solve their difficulties by mutual agreement. The proposals which the Government is submitting to the Senate in this measure appear to me to run in direct opposition to the very essence of conciliation. The Government proposes to appoint conciliators, who will really be arbitrators. The very essence of conciliation is that the parties shall meet and, with the assistance and influence of a third party, who is the negotiator or conciliator, arrive at an agreement. . There are many instances on record in which industrial disputes have been settled by the employment of this method of conciliation. Instances could be given where disputes have been settled at their very inception by means of conciliation, and by the good offices, for example, of Mr. Stewart or of others who have acted in the capacity of conciliation commissioners, although they may not have carried out their work as such. They have succeeded in bridging the gap between the parties, and bringing about an agreement satisfactory to employers and employees. One very notable instance was the final determination in connexion with the timber-workers' dispute. I do not wish to go over the sad history of that dispute and its various incidents which, in my judgment, were a' disgrace to us as a community. Dreadful things happened, the law was flouted, and the judge held up to contempt. It was licence run mad, and there can be no defence of the attitude adopted by certain people in connexion with the dispute. It dragged along in a weary way; hut eventually the parties came together before the Chairman of the Commonwealth Bank Board, Sir Robert Gibson, who was called in as a kind of negotiator. At the conference, which was held at the Melbourne Town Hall, a settlement, as far as Victoria was concerned, was reached. The negotiator was not endowed with any arbitral powers, and had not the authority to terminate the dispute or to make an award, but he was, in essence, a conciliation commissioner. He brought the parties together, and a final settlement was reached. The success of conciliation depends upon the strength and personality of the conciliator. If a conciliation commissioner is a man of outstanding personality, is noted for his impartiality, fair-mindedness, balanced judgment, and good reasoning power, and his integrity is respected by both parties, an agreement satisfactory to both sides should be reached. But if a conciliator is appointed who does not possess that status, and who does not command the necessary confidence, it seems to me that a conciliatory system is doomed to failure. Conciliation means coming together and discussing the subject-matter in dispute. If we have a conciliation commissioner with the power of an arbitration court judge, but without the qualifications or the experience of an arbitration court judge, we shall not get anywhere. The very essence of the system is that the parties to a dispute should be brought together and by persuasive influence, and the exercise of reasoning faculties, some good results may be achieved. The appointment of conciliation commissioners with the power of arbitration court judges, as proposed in this bill, in my opinion will be absolutely destructive of the principle of conciliation. It seems to me that this may be described as an attempt to graft on to the arbitration system the wages board system which has been adopted in Victoria and elsewhere. The two systems will not harmonize. Wages boards cannot operate under an arbitration system such as this.


Senator Daly - They have operated successfully in South Australia.


Senator LAWSON - I do not know what the powers of the conciliation commissioners in that State are.


Senator Daly - They have wages boards.


Senator McLachlan - Appeals are made from the decisions of the wages board to the court.


Senator LAWSON - Wages boards consist of representatives of both sides with an independent chairman, who has a casting- vote, and who can make a determination. In this instance the Government is employing the method first initiated in New Zealand of bringing the parties together and reaching an agreement with the consent of the parties. These agreements are promoted by a man of some power, influence, and status, who is acceptable to both parties. In that way they dispense with the litigious aspect of arbitration. The ultimata decision rests with the arbitration court, and conciliation commissioners have the powers ordinarily bestowed upon persons holding such offices. I am as anxious as is the Government that the conciliatory system should be more effectively employed. There is power in the existing law to appoint conciliation commissioners, but I understand that this provision has not been operative to any extent. I strongly object to conciliation commissioners having arbitral powers. That, in my opinion, would destroy the whole principle of conciliation.


Senator McLachlan - It will destroy the usefulness of such officers.


Senator LAWSON - Yes; it means that a satisfactory solution will not be reached under this measure. If the Government employed a genuine conciliatory agency or conciliatory machinery without this power of the sword in the chairman behind it we might get satisfactory results. That was exemplified in connexion with the timberworkers' strike in Victoria.


Senator Daly - The usual result is that one of the parties to such conferences gets kicked on the shins.


Senator LAWSON - I disagree with the Minister in that respect. I think that a great deal of good can be achieved ; but I am not in favour of the appointment of conciliation commissioners who are really to be arbitration court judges in the guise of commissioners. That is where I stand in regard to these conciliation provisions, and I whole-heartedly support the opinions expressed by the Leader of the Opposition in this respect.

There is another matter to which I should like to refer, and which has some bearing on what was said by Senator Colebatch. With the indulgence of the Senate, I should like to quote a further paragraph from the article to which I have already referred -

We now come to the famous section .2 Iaa, under which the High Court has been given a convenient means of determining important questions of industrial law - how the Scullin Ministry dislikes industrial law! - and in particular the fundamental question of whether any dispute falls constitutionally within the jurisdiction of the Arbitration Court. The amending bill takes these powers away from the High Court. The High Court is apparently no longer to be entrusted to interpret the Constitution so far as it .deals with industrial powers. I will not weary readers with ' the various dry and technical considerations which will induce many lawyers to doubt the competence of Parliament to take away from the High Court its power to prohibit proceedings in any inferior tribunal when those proceedings are a violation of the supreme organic law of the Commonwealth. It is sufficient to say that the validity of the amendment would undoubtedly be challenged at the first opportunity. But why dwell too long upon the mere question of validity 1! The underlying question of policy is more profoundly important. The people of this Commonwealth have so far consistently declined .to increase the Commonwealth's powers over industrial disputes. If the amendment now under consideration be carried, and be valid, it will enable the Arbitration Court to determine questions of jurisdiction for itself, without appeal. A single Arbitration Court judge will be able to say what does or does not fall within the powers granted to Parliament by the Constitution, and the constitutionally appointed interpreter of that instrument - the High Court - will be powerless to correct even the grossest error. I suggest that Mr. Brennan should alter the marginal note to section 21aa, so as to make.it read, "A new and easy way to amend the Constitution."

The views of Mr. Menzies on this matter are worthy of careful consideration. Honorable senators must pay due regard to such a statement from a constitutional lawyer of standing, whose opinions must be respected.


Senator Daly - One who the honorable senator will admit is a distinct partisan.


Senator LAWSON - Dismissing from the consideration of this article, the political views of the writer-


Senator Daly - He wrote that as a politician not as a lawyer. The honorable senator should read the whole article.


Senator LAWSON - I have read two extracts to the Senate. The fact that Mr. Menzies is a politician does not render his statement less valuable. He would not injure his professional reputation by a misstatement of the law for political purposes. With that assertion, I think the Minister will agree. We cannot possibly agree to the proposed alteration to which reference has been made in portion of the article which J have just quoted.

There is another section in the act which provides that an arbitration court judge shall, in making an award, take into account its economic effect upon industry. 1 am one of those who agree with the recent dictum of the Chief Judge of the Arbitration Court when he said that, irrespective of the section in the act, an arbitration court judge is bound to consider the economic consequences of any award which he is about to propound. I feel that the law stands without this declaration; that the removal of this particular provision will not have the damaging effect which people outside seem to think it will have. I am prepared, therefore, to agree to its removal, believing that without it the law stands as indicated by Chief Judge Dethridge i» a recent pronouncement from the Bench, and that any Arbitration Court judge, conciliation commissioner, or any one dealing with the matter of giving an industrial award, will be bound to take into consideration every factor that ought to weigh in making his determination. Without this provision the law will still be that the judge is bound to take into consideration the economic necessities of the position. I do not think that the power will be exercised in a ruthless or reckless way. I think we can trust our judges to do the right thing.

I finish my remarks upon the note with which I began. This measure declares that it is designed to promote goodwill in industry by conciliation and arbitration. I am prepared to help the Government to make the utmost of its conciliation powers, but I am not prepared to give the proposed conciliation commissioners arbitral powers. During the course of my public career, I have had the pleasure of becoming acquainted with many union leaders, and for many of them

I have the greatest respect, not only for their ability, but also for their integrity, and sense of moderation and fair play. If we could get that spirit evinced in our industrial troubles, we should achieve a great deal. But I wonder whether we are really going to substitute goodwill for what now obtains. Nothing can be done for the solution of industrial troubles unless goodwill prevails, and unless there is confidence. Surely it is for us, since we are, in a sense, leaders of the people, to give some kind of a lead. "We endeavoured to do it when we suggested the holding of a peace conference. Delegates representing all parties were called together to discuss their common problems and to endeavour to find a solution of the difficulties besetting industry. But the conference broke up without registering any definite decision. There may have been created for the time being an atmosphere of goodwill and confidence, but it disappeared immediately the conference broke up. The present Prime Minister, Mr. Scullin, suggested calling an industrial peace conference. The proposal was on the boards for some time, but was finally abandoned. I do not know where the fault lies, nor do I know whether we can translate pious aspirations into practical realities. But I am one of those who believe that unless we do this we shall .not get peace in industry, or that evolutionary progress and development which we need in this country - an objective devoutly to be desired. How are we to get this change of heart? I am not saying that the blame is all on the one side. There are employers who are difficult to handle, and who may be unreasonable in their attitude, but I think that it can be said of most of the employers that their hearts have changed, that they have got away from old conditions. I was on terms of personal friendship with a man who was formerly a shearer and participated in the 1891 strike. He told me that at that time the conditions were such, the fight was so dreadful and the consequences so severe, that the iron had entered into his soul, and he could not find it in his heart to think kindly of any man who belonged to the employing class. He was quite honest and sincere, but there was a bitterness in his heart - as he put it, the iron had entered into his soul - and no influence that I could exert upon him was powerful enough to remove it. We shall never get any satisfactory conclusion while such bitterness, class hatred, and ill will prevail. When such things get into the mind of the individual his judgment is warped'; he is not able to see things in their right perspective; he is suspicious of every one who has made any success of life, or got into a position in which he is able to lead or employ others. While such disturbing influences are at work, while people are constantly preaching class hatred and ill will, engendering suspicion in the minds of one section against any other section, instead of preaching tie doctrine of mutual confidence and goodwill, we shall not make progress in this country. I do not care what' particular machinery is prescribed for conciliation or arbitration, unless it is operated in the right spirit we shall not get a good result. Operated in the right spirit, almost any machinery will prevail to bring about a satisfactory result. ' It is not the machine, nor the method, nor the particular agency, it is the spirit with which the machine is operated that counts, and that is what we have to change. Yesterday I was reading the Labor Daily, the Labor Call, and the Worker, and I could find in their columns nothing but suspicion and want of confidence. They think it is their duty to be always against the employer.


Senator Dunn - Did the honorable senator read the Age and the Argus


Senator LAWSON - I am not denying there are faults on both sides, but I should like to see a different spirit substituted for that feeling of suspicion that now prevails in industry, because then we could solve our troubles and problems and the machinery used would not matter very much. Without a change of heart and spirit in the people, unless there is a sense of co-partnership we shall not make progress. The ex-Prime Minister of Great Britain, Mr. Baldwin, speaking in the House of Commons, made a strong appeal for comradeship, copartnership and goodwill in industry. I do not know what the response was to his appeal.


Senator Dunn - Did he appeal for it in the steel mills be controls?


Senator LAWSON - From what I know and have read of Mr. Baldwin, 1 should say that he would be a model employer, one who is always prepared to do the fair thing to those who are working for him. Let us get this poison of distrust, bad feeling and suspicion out of the minds of both sections of industry, and then as a country we may be able to realize our destiny. It is one of the greatest ills of the body politic; one of the things that is sapping our strength, ruining our economic life and preventing us from pulling together as a people. We have to get back to that order of things where the spirit is different, and the heart, is different. Oan we change our pious aspirations into practical realities ?







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