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Thursday, 30 November 1905

Mr JOHNSON (Lang) - I do not know if the Government is disposed to adjourn the debate at this hour.

Mr Ewing - It is a little early vet.

Mr JOHNSON - Then I shallrenew my request for an. adjournment a little later on. I am opposed to the insertion of these clauses in the Bill, because I think thatthey should form the subject of special legislation.

Mr Poynton - Would the honorable member vote for them if they were in a separate measure ?

Mr JOHNSON -No; but I am opposed to their introduction into a Trade Marks Bill, since their subiect-matter is quite foreign to the subject-matter of the Bill. A trade mark, as has been pointed out bv eminent legal authorities, is really a traders' mark. Trade unions, or asso- ciations, and individual workers are not traders, and therefore cannot properly use a trade mark. The union label is not a trade mark in the sense in which the term is employed5 to signify marks placed upon goods for the purpose of indicating the place of manufacture, or the persons by whom they were manufactured. The union label is not accompanied by a proprietary interest in the article to which it is attached, which is one of the essential and basic principles of the trade mark. I think it ought to be referred to a Select Committee, so that evidence might be taken and we might ascertain what justification there is for putting the clauses in the Bill, and whether the title of the measure should not be altered to " A Bill for the Legalization of the Boycott, Intimidation,, and Minority Rule." For, after all, those are the purposes for which the union label is to be called into existence. It is intended to distinguish goods made by trade union labour from goods made by non-union labour. Power is sought by those who are responsible for these clauses to put into the hands of trade unions the right to coerce the majority of workers into joining such organizations against their will. Not only so, but it is intended to give the right to trade unions to coerce employers into discharging non-union labour. It is intended to limit the freedom of citizens to act on their own judgment in buying or selling. They are to be confined to goods which are marked with the union label.

Mr Kennedy - Could not any set of workers other than trade unionists register a mark under this Bill?

Mr JOHNSON - Perhaps they could. It is not probable that they would, but, in any case, it would not give them any proprietary right In the goods they produced. It is the very essence of a trade mark, as ordinarily understood in trading circles, and as laid down by the most eminent legal authorities, that the user of the mark must have a proprietary interest in the goods to which it is applied. The union label is in no respect a trade mark in the proper sense of the term. An eminent legal authority in Victoria has pointed this out. It has also been pointed out by the courts of the United States. Several judgments have been given in America, in which it has been stated -

The courts could protect organized, labour from any interference with their proprietary or quasiproprietary right in their union label as affixed to goods, and such labels were held not to be trade marks for several reasons : (i) Because they do not indicate by what person the articles were made, but only membership of a certain association ; (2) their use is not enjoyed as incident to any business, and the right to use cannot be transferred with the transfer of a business; (3) there is no exclusive use, as many persons not connected in business and unknown to each other have the right to use, the right to use being acquired by becoming a member of an association, and being lost by ceasing to be a member.

The judgments of the United States courts show that the union label is not recognised by them as a trade mark in the ordinary acceptation of the term.

Mr King O'Malley - In the United States the only opponents of the union label are the rings of boodlers.

Mr JOHNSON - I do not know what authority the honorable member has for saying that. An eminent legal authority in Victoria indorses the view which I have expressed. After carefully examining the law on the subject, he has arrived at the conclusion that -

In my opinion, the Commonwealth Parliament has not power to legislate in respect of what I have called for shortness " Union Labels," on the ground - [a) Because they do not 'indicate by what persons the articles were made, but only membership of a certain association.

(4)   Their use is not enjoyed as incident to any business, and the right to use cannot be transferred with the transfer of a business.

(e)   There is no exclusive use, as many persons not connected in business, and unknown to each other, have the right to use, the right to use being acquired by becoming a member of an association, and being lost by ceasing to be a member.

So that the grounds of objection which this eminent legal authority takes, are identical with the grounds of objection laid down by the Courts of the United States. But perhaps the most serious objection to this union label proposal is that it will condemn thousands of honest working men in this country to the loss of their employment.' That, I think, is absolutely a certainty. If we are to judge from the operation of similar measures in the United States, it will have the effect of coercing employers into giving employment only to those who are members of trade unions. In fact, every one who knows the origin of this proposal is aware that the experience of the United States has guided the authors of these clauses. They have seen what a powerful engine for tyranny and coercion the union label has been in

America, and they see that by' getting it legalized here they can use the' forms of law to deprive the citizens of the Commonwealth of their equal rights under the law and to secure to themselves the leg,al power to coerce and intimidate non-union workers. I have no objection whatever to trade unions. I believe in the right of workers to combine together in a lawful manner for the purpose of bettering the conditions of labour and securing the best terms they can get.' But action of that "kind should be purely voluntary. I do not believe in coercion. I believe that' every inducement should be held out to wage-earners to join trade unions. But the element of compulsion should be entirely absent; because as soon as compulsion or coercion steps in, the equal rights of individuals are destroyed. I have noticed that some members of the Labour Party, when speaking on public platforms, have been very loud in the declaration: of their belief in the principle of recognising equal opportunities for all. Whilst they are so loud in proclaiming this principle outside on the public platform, their legislative acts in this Chamber- always tend in the direction of denying the right- of equal opportunity for all, and setting up a system of class privilege. The result of this sort of legislation is not to set one class against another, but to confer special privileges on a section of one class - a section which they come here specially to represent. At one time, we are told by labour members that they are here to equally represent unionists and non-unionists - that they know no distinction, and that they would not be here but for the votes of both sections of workers. That is an. argument which they use when it suits their purpose, but when it does not, they fall back on another argument, which is a flat contradiction to that I have just indicated. They say that they are not here to represent nonunionists, but only unionists.

Mr Hutchison - Who has said that? '

Mr JOHNSON - The honorable member for Darling for one,' and there are other members of the Labour Party who have expressed the same opinion. I could refer to Hansard to show that those honorable members have described nonunionists as " scabs " and " blacklegs," and as men of criminal type, who are not entitled, to consideration.

Mr Spence - I have explained that matter over and over again.

Mr JOHNSON - That is the kind of hypocrisy which characterizes the arguments of those who come here to represent labour.

Mr King O'malley - Is the honorable member in order in accusing honorable members of this House of being double.dyed hypocrites ?

The CHAIRMAN - I did not 'understand the honorable- member for Lang to make an assertion of that character. I ask the honorable member whether he used that expression?

Mr JOHNSON - I made use of no such expression, but I did describe the use of antithetical arguments such as we are accustomed to hear from' the labour section of the House as hypocrisy. The argument has been used that the union label is necessary as a guarantee of quality. But every honorable member knows that the provisions of this Bill do not pretend to guarantee quality, and that the shoddiest possible article might, with this union label, be foisted on the public. Honorable members who use the argument are perfectly well aware that the union label would not afford the public any such guarantee, but that the public are left absolutely at the mercy of the union shops regarding the character of the goods they purchase. The Bill seeks to compel the public to purchase goods which bear the union label, even if those goods be of the most inferior quality.

Mr Tudor - How are the public compelled to purchase the goods?

Mr JOHNSON - There are various methods of .exercising compulsion, with very many of which I have no doubt the honorable member for Yarra is perfectly familiar. At any rate, that is the central idea underlying the union label, and it is the cause of so much opposition to this legislation. If the union label were designed to insure the public against fraud, it would not meet with opposition from this side of the House. It is because there is a sinister purpose in this proposal, aiming at interference with the liberty of every section of the community, that such strenuous opposition is shown.-. One of the first duties of a Legislature is to conserve the equal rights of all citizens, and afford equal protection under the law; and Parliament has to see that those equal rights are not infringed by any individuals or sections of the community. This union label, however, has for its object that very interference which it is for the law to prevent. The honorable member for Darling, in one of those specious, sophistical processes of reasoning, which so often do duty with him as argument, contended that we all give preference in one form or another- in the everyday transactions of life. That statement is true, so far as it goes ; but the honorable member did not point out that that preference is totally different in kind from the preference sought under cover of the union label. It is true that everybody, in their every-day transactions, exercises the rights of preference to a greater or lesser, extent; but that is a purely voluntary exercise of preference.

Mr Spence - So is the other.

Mr JOHNSON - There is an essential difference, one being purely voluntary, and the other compulsory.

Mr Spence - How is it compulsory?

Mr JOHNSON - Because of- the coercive tactics and intimidation that are resorted to, in order to force, people to do something they do not want to do.

Mr Tudor - That is slightly involved.

Mr JOHNSON - It is perfectly true. The honorable member for Darling' stated that men could not be coerced into joining trade unions. But many men have told me that they have -been compelled to become unionists, because otherwise they would not have a chance of getting a living. They were so tyrannized over and intimidated that they were compelled to become unionists. Working men in my own constituency are now members of unions which they were forced to join' through the pressure of circumstances. I contend that sooner or 'later this very process of compulsion must lead to disintegration, and to the ultimate downfall of the unions.

Mr Spence - -Does the honorable member contend that every member of a union has been coerced into joining it?

Mr JOHNSON - No. The honorable member has' no right to distort my words in that way. It must be perfectly evident that the honorable member is a voluntary unionist. Whilst many men are perfectly willing to join unions, a greater number do not care to do so. All we claim is that the rights' of each individual shall be respected - that those who desire to join unions shall be perfectly free to ' do so, and that no compulsion shall be brought to bear upon others who do not wish to become unionists.

Mr Spence - Not one man in 500 is coerced into joining a union.

Mr JOHNSON - I have no objection to any man joining a union; but perfect freedom of action must be enjoyed. No doubt the main purpose of the union label- is to bring direct or indirect pressure to bear upon non-unionists to induce them to join unions, and that is the chief danger, of the proposal now before us. -The honorable member for Darling stated that the first employer who adopted the union label would .make a lot of money out of it. Perhaps he will - it is hard to say - perhaps he will not. At any rate. if the label, is such a good thing for employers, it is remarkable that the Chamber of Manufactures - an association of employers - and the Chamber of Commerce, also largely representative of employers, should have been fighting tooth and nail against the adoption, of the union label. The members of the farming community and of the trading community have expressed theV strong opposition to the proposed legislation, which has met with universal condemnation. The union label is regarded, and properly so, as steeped in iniquity.

Mr Tudor - Will the honorable member tell us who sent out the resolutions that were adopted by the farmers ?

Mr JOHNSON - Provided that the resolutions are based on truth, right, and justice, it matters not who sent them out. I do not hold a brief for the Employers' Association, or; any other body of men; but I do hold a brief for truth, right, and justice, and equal freedom to all; and, those are the principles by which I intend to stand. . I think the position has been put. very clearly by Judge Hunt, of California, in the case of Pearce v. The Stablemen' s Union Local, 8760, decided in 1904. In his judgment' he says -

The property which every m.m has in his own labour, as it is the 'original foundation of all other property, so. it is the most sacred and inviolate. Hence no syndicate of employers, or unions of employes, can bar one of the right to labour, for .the right to labour is the right to live. In Billings v. Hall the Supreme Court of California refers to the constitutional question on this point as one of the fundamental principles of en1 lightened government, without a rigorous observance of which there can be neither liberty nor safety to the citizen. The right to labour is a right of property, and the duty to protect is the highest office of our laws.

That is a sound principle to lay down, and, coming from such authority, should command respect, even from members of the Labour Party. It lays down the principle that every individual is entitled to the full rights of property in his own labour. It is also pointed out that the right to live is involved in the right to labour, and that every man should be permitted to dispose of his labour as he chooses, without interference 'from outsiders. Canada has been profiting by the experience which has been gained from the abuse of the union label in America. During the last ten years repeated attempts have been made to legalize the use of the union label in Canada. The latest effort was made in the early part of this year, but after a five-months' struggle it was defeated.

Mr Tudor - I suppose that the honorable member knows that the Trade Union Marks Bill has passed the Lower House in Canada no less than seven times?

Mr JOHNSON - I know that it has never been passed into law in Canada yet. It was never a Government measure. I believe that it originated in the Upper House. It. is essentially a Tory measure, and provisions similar to those contained in it are being advocated at the present time by the Labour Party, which is the Tory Partypar excellence in this House. Now let us turn to Victoria. In September, 1903, the Full Court adjudicated upon the case of Martell v. the Victorian Coal Miners' Association, Victorian Law Reports, volume 29, page 475. This is laid down -

Where a combination or an individual does any act with intent to harm another, without lawful excuse, and harm, in fact, results to him, an action lies for damages by the person injured. Where unlawful means are adopted to effect the purpose of such combination, there can be no lawful excuse. A combination of persons with intent to coerce their employer by means of a threat into dismissing from his employment, or refusing to employ another person, is actionable at the suit of that person, where the threat used is that of an unlawful strike. Such a combination can in no case be lawful. Where the dominant purpose and intention of a combination of persons is to harm another, and harm, in fact, results to him, it is no lawful excuse that they are pursuing their own business, or advancing their own interests, as, e.g., that they are upholding the principle of trades unionism or are punishing the person so harmed for a violation of such principle.

Mr Frazer - But it is lawful for that same coal company to make it a condition precedent to the employment of men that they must be non-unionists.

Mr JOHNSON - I am just as much opposed to that sort of thing as I am to the other -

The person who procures the act of another is legally responsible for its consequence's, even though the act induced is within the right of the immediate actor, if it be to the detriment of a third person, and if he can be shown to have procured his object by the use of illegal means directed against that third party.

It will be seen, therefore; that at the present time the use of the boycott is illegal. It is because it is actionable at law that an attempt is being made in this Bill to legalise it in order to permit of its application under the guise of the union label.

Mr Isaacs - The honorable member knows that there is a provision in this Bill which expressly provides against that.

Mr JOHNSON - Some amendments have been outlined which honorable members opposite - if they desire to protect the rights of non-unionists and of the public - will support.

Mr Webster - Let us get on to the amendments.

Mr JOHNSON - The honorable member for Gwydir has been absent from the Chamber for a couple of hours enjoying himself, and upon his return heat once desires to take charge of the House. I certainly resent his action. If he is anxious to air his opinions,hecan do so at the proper time, but I will not tolerate his impertinences. Chief Justice Knowlton, of Massachusetts, United States, in giving judgment in the case of Berry versus Donovan, in which the plaintiff, a non-union shoemaker, sued an officer of the Boot and Shoe Workers' Union for damages for procuring his discharge from employment by Messrs. Goodrich and Company, boot manufacturers, of Haverhill, because he was not a member of the union, said-

The primary right of the plaintiff to have the benefit of his contract, and to remain undisturbed in the performance of it, is universally recognised. The right to dispose of one's labour as he will, and have the benefit of his lawful contracts, is incident to the freedom of the individual, which lies at the foundation of government in all countries that maintain the principles of civil liberty. Such a right can lawfully be interfered with only by one who is acting in the exercise of an equal or superior right, which comes in conflict with the other. An intentional interference with such a right, without lawful justification, is malicious in law, even if it is from good motives and without express malice.

There is only one other point to which I desire to refer. It has been said that the employers themselves will be great gainers by the introduction of the union label. In opposition to that view, I wish to point out the effect of its adoption on the commercial value of trade marks, as instanced in the cigar trade in Canada. The cigar manufacturers there, 'controlling 85 per cent, of the cigar production, of that country, recently made strong representations to the Dominion Parliament in opposition to the Bill which was rejected early during the present year. They thus stated their case - .

All cigars are marketed to the consumer under labels or brands, and as certain lines grow in public favour, the Trade Marks, as covered by the various label designs, become very valuable assets of the manufacturer, and are saleable for large sums. If labour organizations are also permitted to register their particular emblem as a trade mark, and can then through the strength of their organization compel the manufacturer (as they oft-times do) to affix this label on each box of cigars, the value of the Trade Mark becomes practically ruined as a saleable asset. All the labels on a package of cigars are equally part of the Trade Mark with the brand name, and except they can be delivered complete, their sale is ruined. The manufacturer cannot sell the Union Label Trade Mark on his package with the rest of his Trade Mark, nor can he give any guarantee that the privilege of its use will be extended to the purchaser of his brand. Instances have occurred within the past few years where the presence of the Union Label has prevented the sale of a brand at a large figure.

Any effort to discard this emblem of Union Labour has invariably been followed by the most strenuous and persistent boycott. The use of the Union Label is not optional, at least this is the experience of cigar manufacturers. Factories' have employed union labour, and complied with all union conditions except that they would not affix the Union Label on their brands. Strikes have been precipitated to enforce this ruling. On certain high-grade brands of cigars the Union Label is a serious drawback in the sale of the product, and to give this emblem the status of a registered Tirade Mark is but the first step to its compulsory use wherever the union issuing same has sufficient powers.

The registration of the Union Label is necessarily illegal. It is not, nor can it ever be, made a Trade Mark by process of law. This opinion has been laid down by the Trade Mark Branch of the Department of Agriculture, and by several eminent trade mark authorities in Canada. A trade mark is essentially a mark placed on a piece of merchandise to indicate its ownership. To register the Union Label would be to accord the unions part proprietorship in every piece of merchandise to which their label was affixed. According to the legal advice of the Dominion Cigar Manufacturers' Association, such an act could not be sanctioned by law.

The registration of the Union Label would be simply disastrous to cigar manufacturing interests in Canada, and would eventually ruin the immensely valuable assets owned by cigar manufacturers in their popular labels and brands.

Here we have evidence that a large association controlling 85 per cent, of the total cigar production of Canada has issued a memorial to the Government of the Dominion, in which they positively state that the use of the union label has the effect of injuring the value of their trade mark, that the union label itself is not a trade mark, cannot in its nature, or by any process of law, be converted into a trade mark,, and that its enforced use, even upon goods; which have all been made by union labour, brings about the ruination of trade in many instances, and certainly depreciates1 the value of the trade mark of those engaged in the production and sale of cigar* in that country. There are several decisions in the American Courts to the effect that a union label is not a trade mark, and also that trade unions are not tradingcorporations, and, therefore, cannot be entitled to the use of a trade mark. Here is one, which was given by Judge Williams in the case of M'Vey v. Brendel, in 1891, in Pennsylvania -

I conclude that the Cigar Makers' International Union of America is neither a trader within the meaning of the common law, nor within the.,purview of the Act of Congress. Not being a trader in any sense, it can have no distinctive trade mark. Registration under such circumstances isnot authorized by the Act of Congress, and if made, confers no title, and gives no standing ground in a court of law or equity.

Then, in the case of State v. Bishop, in 1895, Judge Burgess said -

It may be conceded that the label is not what is generally understood by law-writers to be a> technical trade mark, because it does not pretend or intimate that the cigars are owned, prepared, or manufactured by the union as an organization, or that as such union, it has any interest or property therein, nor by what particular firm or persons the cigars to which it may be attached were manufactured.

Then, in the case of HettermanBrothers and Company v. Powers, in 1897, Judge Hazel rigg said -

First we may admit that the label of the Cigarmakers' National Union is not used as a trade mark in the ordinary sense of the word. It is not a brand put on goods by an owner to separate or distinguish them from the goods of others.

Similar decisions given in other cases could be quoted, and all the authorities agree that a union label and a trade mark are essen.tially different things, and that one cannot serve the purpose of the other. It cannot be argued for a moment that workers, whether working in their individual capacity or in association as unions could, by the use of a label upon the goods they produce, acquire a proprietary right in those goods; nor can it be urged that they could be classed as traders in those goods. The very essential purpose of a trade mark is absent from the union label. The purpose of a trade mark is to protect the owner, seller, or trader in goods from the piracy of others engaged 'in the manufacture or sale of similar goods. It is to protect individual rights, or the rights of corporations trading 'in goods or manufacturing them, that the trade mark is granted. These conditions cannot possibly apply to all the workers engaged in the production of goods, and they cannot have the same proprietary rights as the owners or sellers of the goods. On these grounds I think that these clauses ought to be referred to the investigation of a Select Committee. I am, assured that very many persons in this community are willing to come forward and give valuable evidence before such a Committee, which at a later stage might be used for the information of honorable members, and perhaps to convert those who are now opposed to. the union label to a different way of thinking. In, the absence of any investigation of the kind, and of such evidence as might thus be obtained, the Opposition are perfectly justified, on principle, in opposing these clauses, and in resisting the attempt to engraft such provisions on a measure dealing with trade marks. I wish it to be distinctly understood that, in opposing these clauses, I am not opposing trade unionism., or speaking against it in any way. Though some honorable members may laugh at that statement, I have always been an upholder of the principle of trade unionism. I have always held that it is a good thing for workers to combine for lawful purposes.

Mr Wilson - The honorable member refers to voluntary combination.

Mr JOHNSON - Yes. I believe that it is a good thing that they should form, themselves into voluntary societies or unions for the purpose of securing better conditions and terms for their labour.

Mr Hutchison - Only the honorable member objects to help them.

Mr JOHNSON - No._ I would help them on right lines; but' I have .always contended that the principle of liberty should be steadily kept in view in the formation of these associations, and that the element of compulsion, should never be per mitted to enter into them. As soon as it does, the free right of choice is lost to the individual, and that is a thing which should always be guarded against by every marr who professes any regard for liberty or correct principle. It is because of the compulsion which underlies the whole of these proposals, and because of that element of compulsion which has suggested their inclusion in this measure, that we are opposed to them. We object to the will of the minority being forced upon the majority, and to coercive measures being brought to bear to compel free men to sacrifice their freedom and to become members of organizations which they have no desire to join. At the same time, I would heartily recommend all workers to voluntarily join unions, and especially those who believe in freedom, so that, by their influence and reasoning, they may be able to convert those who are opposed to the principles of freedom from the error of their devious ways. If the unions form themselves into voluntary trading corporations, there is mo reason why .they should not have trade marks. I could see no objection to that. If trade unionists desire to secure the reasonable benefits of the provisions of a Trade Marks Act, let them form themselves into trading associations. Let them form themselves into voluntary co-operative institutions, and engage in the manufacture and sale of goods, and then they will be' equally entitled, with other manufacturers and sellers of goods, to the protection of their wares, but they cannot claim a protection for wares which they do not own. Therefore, it seems to me that to attempt to confuse a union label with a trade mark is one which can only impose upon those who are either wilfully deficient in understanding, or are willing to be imposed upon.

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