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Tuesday, 28 November 1905


The CHAIRMAN - I understand that the honorable and learned member is going to move an amendment of which he has given notice, to insert certain words in clause 4.


Mr GLYNN - That is so. '


The CHAIRMAN - The honorable and learned member has not stated his amendment, but is discussing the relations between employers and employés on a clause which, so far as I can see, provides no such subject for discussion. I would point out that we are discussing the definition, and that the Bill up to the stage which we have reached, does not contain any reference to union marks. Indeed, a reference to " trade union marks " has been struck out of a preceding clause. If the honorable and learned member wishes to deal with' trade union marks, it will be necessary for him" to move a substantive motion to cause the re-insertion of that reference, if he desires to deal with them at this stage:


Mr GLYNN - I have read the definition, which I desire to insert, and my point is that if that amendment be made, the trade union clauses will be inconsistent with the Bill. Hence the question of whether they ought or ought not to be inserted, has mow to be dealt with. If the Attorney-General wishes to have another debate upon this question, I shall offer no objection; but I thought that after last week's proceedings, the Government were anxious to push on with the consideration of the Bill. If you think, Mr. Chairman, that I cannot refer generally to the- question-


The CHAIRMAN - I fail to see the connexion between the amendment and the remarks which the honorable and learned member was making when I interrupted him.' I should be glad if he would point it out.


Mr GLYNN - I shall endeavour to do so. If the definition be inserted, it will be inconsistent with the proposed clauses dealing with union labels, of which the Attorney-General has given notice.


The CHAIRMAN - I would point out to the honorable and learne'd member that in moving the insertion of certain words, he would not be entitled to say what the addition of those words would 'not effect. He would certainly be at liberty to show what they would effect, but not to anticipate amendments that were not' before the Committee.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - On the point of order, Mr. Chairman, the honorable and learned member for Angas was pointing out that if the definition which he proposes were accepted, it would exclude tha present trade union clauses from the Bill, and also prevent the insertion of the amending clauses relating to that matter.


Mr Isaacs - Is not that a premature argument ?


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I do not think it) is. I submit that the honorable and learned member is in order in giving reasons why this clause should not cover what he describes as so foreign a matter as trade union labels.


The CHAIRMAN - I think that it will shorten the debate, if' I point out that the definition clause does not provide for anything regarding trade union labels, and that the fact that the amendment which the honorable and learned member desires to insert would, in his opinion, cause the union label provisions to be inconsistent with the Bill, need not be dealt with at this stage. That question can be more properly discussed when the provisions in question are before us.


Mr McCay - On the point of - order, , Mr. Chairman, I desire that there shall be only one debate upon the question of the union label clauses, but, as I understand the position taken up by the honorable and learned member for Angas, it is this : He wishes to insert in the measure a definition of " trade mark " which, in his opinion, will limit the scope of the

Bill ; and it seems to me inevitable that he is bound in fairness to the Committee to point out what would be the effect of the insertion of the proposed definition.


Mr Watson - But he cannot deal with that matter in detail.


Mr McCay - I submit that he can. Surely the honorable and learned member is not only entitled, but bound, in fairness to the Committee, to give his reasons for proposing the insertion of a definition which will have the limiting effect that he has pointed out. I think that it will considerably facilitate debate if the honorable and learned member is allowed to give the reasons why he believes the definition that he proposes to insert will exclude certain classes of' marks. That is absolutely germane to the amendment. I submit* that he is entitled to refer to the effects of leaving in the Bill the provisions relating to those marks, as contradistinguished from a proposal to omit them.


Mr Isaacs - In relation to the question which the honorable and learned member is arguing, there is one point which to my mind is fatal. Even if we inserted the definition which the honorable and learned member for Angas proposes, providing in effect that " trade mark" shall not include trade union marks, it would not carry us any further, because we find at the beginning of clause 4, the words, " except where otherwise clearly intended. " Therefore, the amendment would not apply to another part of the Bill where the clear intention was to the contrary. It is useless, to contend that reasons may be given why the definition in this clause will or will not include anything else, because it would be perfectly open to us, under the interpretation clause, to insert anything else that we .please, unless it is otherwise clearly intended. Those words govern the whole matter. My next point is, that whilst the honorable and learned member might be at liberty to show what the amendmentwould include, and what it would not, he has really been roaming all over the Bill.


Mr GLYNN - I had not the remotest intention of expatiating on the measure at length. Sometimes an interjection will develop a thesis which one never intended to discuss. In conclusion, I will quote from the report of«the Industrial Commission for 1901, vol. 17, page 627-8, which shows that trade ' union labels are considered not to be true trade marks.


Mr Watson - Is that the report of ar» American Commission ?


Mr GLYNN - No; of an English Commission.


Mr Tudor - The newspapers say that the trade union label is unknown outside the United States.


The CHAIRMAN - I as.k honorable members to allow the honorable and learned member to proceed without interruption. In Committee honorable members are allowed to speak as often as they please on any particular clause, so that they have ample opportunity to express their views.


Mr GLYNN - The passage which I wish to quote is as follows: -

The union label has during the past ten or fifteen years become an increasingly common device among labour organizations to influence consumers to buy union made goods, and thus to induce employers to use exclusively union labour. Nearly all of the States have adopted statutes allowing the registration of .union labels and trade marks, and providing for the punishment of persons using these labels without authority. Statutes of this sort, of course, differ from the ordinary laws regarding trade marks, since the union working man is not the owner of the article to which he affixes the label, but simply contributes his labour towards its manufacture.

According to the report of the Commission, trade union labels are not considered trade marks, and consequently Congress has not legislated in respect to them, because its power of legislation extends only to trade marks. The Statutes passed in the United States authorizing the use of the trade union labels are State Statures. The States have not power to deal with trade marks, but Congress has.


Mr Watson - The States have power to deal with trade marks within their own areas.


Mr GLYNN - The Commonwealth and the States have both power to deal with trade marks., but once a Commonwealth" Act is passed overriding the concurrent State legislation, the latter goes to the wall.


Mr Watson - In the United States of America the States have an exclusive, not a concurrent, power in regard to their own areas.


Mr GLYNN - The American legislation respecting trade union labels is State, not Federal, legislation. Acts have been passed by the Legislatures of the States, not merely legalizing the use of trade union labels, but even rendering it compulsory to brand Government goods, as having been made by union labour ; though upon that branch of the subject I shall not say anything more at present, in deference to your ruling, Mr. Chairman. I ask honorable members to accept the definition which I wish to insert. If it limits the scope of the measure by neutralizing the trade union label provisions, it will accomplish the object which I have in view. The omission of this definition is, in my opinion, a blot on the perfection of the measure. I move -

That the following words be added : - " A trade mark' shall mean a mark used or proposed to be used upon or in connexion with goods for the purpose of indicating that they are the goods of the proprietor of such trade mark by virtue of manufacture, selection, and certification dealing with or offering for sale."

Mr. HIGGINS(Northern Melbourne).I should like to explain to the honorable and learned member for Angas that the Bill was drafted about fifteen months ago, before the English definition to which he has referred existed. Therefore it is hardly fair to blame the Attorney -General for its omission, especially as he had nothing to do with the drafting of the measure. I understand that the honorable and learned member wishes to insert the definition of a trade mark which is embodied in the English Trade Marks Act, passed on the nth August of this year. It is true that there is not a definition of a trade mark in the Bill, but there is a definition of the essentials of a registrable trade mark, so that what is needed is achieved, I think, as well here as in the English Act. Therefore, in my opinion, the Attorney -General is wise in not agreeing to amend the Bill, since it has already passed through the Senate, and we wish to reduce the points of difference between the two Chambers to a minimum. As the Attorney-General has pointed out, the English definition applies only "unless the context otherwise requires," and our definition applies only " except where otherwise clearly intended." The English Act contains a provision, to which the honorable and learned member for Angas did not refer, recognising the full principle of the trade union label.


Mr Glynn - I referred to it. I said that it has nothing to do with the trade union label, though some people think that it has.


Mr HIGGINS - The full principle is admitted in section 62. as well as in. sections 63 and 64, which provide thatone may own a trade mark, although he may not own the goods to which it is applied. The position of the honorable and learned member was that, in order to own a trade mark, one must own the goods to which it is applied.


Mr Glynn - I said that section 62 dealt with the case of expert examination. It has nothing to do with the trade union label.


Mr HIGGINS - Section 62 provides for special trade marks, its marginal note being "Standardization, &c, trade marks." It reads -

Where any association or person undertakes the examination of any goods in respect of origin, material, mode of manufacture, quality, accuracy, or other characteristic, and certifies the result of such examination by mark used upon or in connexion with such goods, the Board of Trade may, if they shall judge it to be to the public advantage, permit such association or person to register such mark as a trade mark in respect of such goods, whether or not such association or person be a trading association or trader, or possessed of a goodwill in connexion with such examination and certifying. When so registered, such trade mark shall be deemed in all respects to be a registered trade mark, and such association or person to be the proprietor thereof.

So that an association may own a trade mark, although it does not own or make the goods to which it is applied. That is the whole principle at issue. It is like the system of giving hall-mark by search. The manufacturers of Sheffield are interested in keeping up the standard of Sheffield goods, and for two or three centuries past have adopted a system of search. Searchers go through the goods, and ascertain whether they are worthy of having the hall-mark attached to them. The union label would be similar to a hall-mark, to the extent to which it would afford a guarantee as to the standard of the goods.


Mr Conroy - We have made no provision for that in the Bill.


Mr HIGGINS - We shall do that presently. In section 63 provision is made similar to that adopted in regard to the Sheffield marks ; and in section 64 provision is made similar to that which applies to cotton marks in Manchester and other places. If we adopt the definition pro posed by the honorable and learned member for Angas, we shall only lead to confusion, and I think we should be well advised if we disposed of the formal clauses as quickly as possible, and dealt with the question of union labels, as it will arise under Part VII. of the Bill.







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