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Thursday, 24 July 1930


Senator DALY (South Australia) (Vice-President of the Executive Council) . - I do not desire to be misunderstood in connexion with this matter. I do not say that the States should enforce penalties for offences created by the Commonwealth. What I said, and now repeat, is that any person in South Australia who accepts employment under a Commonwealth award and, in combination with others, leaves that employment, may be prosecuted, with his companions, for striking. It is not a case of the Commonwealth Government hauling down its flag, or transferring its powers to the States. I made it perfectly clear in my second-reading speech that the Commonwealth Government believes that those particular provisions are absolutely ineffective. I simply raised the question as to the power of the States to deal with the matter, in order to allay the fears which appear to be in the breasts of certain honorable senators. I did not use it as an argument why these provisions should be abolished, but merely pointed out that if honorable senators have any doubts upon the matter, power still exists with the States to prosecute these men for striking.

Clause agreed to.

Clauses 4 to 8 agreed to.

Clause 9 -

Section 18c of the principal act is repealed and the following section inserted in its stead "18c (7.) A Conciliation Commissioner shall have the powers of a judge under sections sixteen and sixteen a of this act, but the appointment of a Conciliation Commissioner shall not affect the exercise by a Judge of his powers under those sections. (8.) A Conciliation Commissioner shall also have all the powers which the Court or a Judge has under section thirty-eight of this act, other than -

(a)   the power contained in paragraphs (d) and (f) of that section, and

(b)   the power to give an interpretation of any term of an existing award, contained in paragraph ( o ) of that section :

Provided that a Conciliation Commissioner shall not have power, in pursuance of this section, either to make or vary an award, which, by reason of the provisions of section eighteen a or eighteen aa of this act, cannot be made or varied by a single Judge. (0.) Any award or order made by a Conciliation Commissioner pursuant to the power conferred by this section shall for all purposes be and be deemed to be an award or order of the Court.".

Senator Sir GEORGEPEARCE (Western. Australia) [8.5.6].- This clause not only provides for the appointment of conciliation commissioners; it also defines their powers. Sub-clauses 1 to 6, inclusive, deal with the appointment and terms under which conciliation commissioners are to be appointed, and how they may be deemed to have vacated their office. Subclauses 7, 8, and 9 define the powers of the commissioners, and it is in sub-clause 8 that their power is made similar to that of an, arbitration court judge. In order to test the matter; I propose to ask the committee to. omit sub-clause 7, 8, and 9. If my suggestion is approved, the remainder of the clauses will simply provide for the appointment of conciliation commissioners, and the committee will have registered their opinion that, those commissioners should not have, such arbitral power.

Inhis reply on the second-reading debate the Minister made a suggestion that the Government: might be prepared to consider some amendment to bring this provision into conformity with the South Australian law, under which, I take it, the commissioners would act similarly to the chairmen of wages boards, and an appeal would be provided against their decision. I am not, at this juncture, expressing any opinion upon the proposal, except that it would be much less objectionable than this clause as it stands. It now gives to a conciliation commissioner the absolute power of a judge, and places in the hands of an executive the power to appoint a conciliation commissioner to hear a case that would normally go before a judge. That would be a most objectionable method of dealing with industrial matters, and would subject the Government itself to a great suspicion as to its motives for appointing the commissioner. It is necessary that these tribunals should, as far as possible, be above suspicion. Not only are the conciliation commissioners given the powers of a judge; but further on they are given an even greater power, for they are authorized to interpret the Constitution. Senator Colebatch dealt with that point. The bill as framed provides that these gentlemen, who will be appointed because of their common sense, will have the power to interpret the Constitution in respect of industrial matters. They may have a lot of common sense, as I hope we all have, but I doubt if any honorable senator would claim to be capable of interpreting the Constitution. It is too great a power to vest in these commissioners. The commissioners will not be conciliators at all. Everyone who has had experience of industrial matters knows that if behind an industrial commissioner stands an arbitration tribunal, an organization appearing before a commissioner will have its eye on the ultimate tribunal. That is why the conciliation clauses in theexisting act have not worked successfully. An organization will get as much as it can from a conciliation commissioner; but it will not be satisfied until it gets before the final tribunal. That was proved some years ago in Victoria, where they had a wages board system somewhat similar to that in South Australia, and also am appeal court. It was found there that nearly every case ultimately went before the appeal court. That court was eventually abolished, because it was found that there was no finality in the decisions reached by the wages boards. J suggest that these so-called conciliation commissioners will, in fact, be arbitrators. There will be no appeal from them to any other tribunal. Because they are arbitrators they will cease to have any value as conciliators. The organizations that will appear before them will be prepared to accept a certain minimum. A conciliation commissioner may attempt conciliatory methods until the cows come home, but the organization will know that eventually he will act as an arbitrator. It will place its request before him in the hope that, as an arbitrator, he will give it all it wants. One person cannot perform the functions of both a conciliator and an arbitrator. I have already given some instances of agreements having been arrived at by judges of the court acting as conciliators. The reason why they have not acted more in that capacity is that the parties to disputes always have known that, as a last resort, the conciliator had to act as an arbitrator. If we could appoint conciliation commissioners whose duties would be solely those of conciliators they might serve a useful purpose. The late Mr. A. M. Stewart was a conciliation commissioner, and I believe that he did some very valuable work. If we take out of this clause the arbitral powers of the commissioners, we shall have exactly what is in the existing law. These men will then be conciliation commissioners, purely and simply, without the power to arbitrate. That is the only way that they can function satisfactorily as conciliation commissioners. If we gave them the powers which sub-sections 7, 8 and 9 would confer upon them they would have to act as arbitrators in every case that comes before them. I move -

That sub-sections 7, 8 and 9, proposed new section 180, be left out.







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