HD 5630 H55 _Hi£gin s . - Southern Branch of the University of California Los Angeles Form L-1 HP RS3 !^P This book is DUE on the last date stamped belo\ ,/,..^' ■•' 5 1925 JAN 2 ^g^r- <^PR 1 9 19«t i^DV 4 ^^3a 1931 ^ WAY 5 1933 WAY^I 4 1^3- i OEG 8 t9Sr' r; 'T),'^^ "JAM 5 194^ /H Form L-9-5h?-5,"24 A NEW PROVINCE FOR LAW AND ORDER First published, 1922 A NEW PROVINCE FOR LAW &" ORDER BEING A REVIEW, BY ITS LATE PRESIDENT FOR FOURTEEN YEARS, OF THE AUSTRALIAN COURT OF CONCILIATION AND ARBITRATION By HENRY BOURNES HIGGINS, M.A., LL.B. JUSTICE OF THE HIGH COURT OF AUSTRALIA, AND PRESIDENT OF THE COURT OF CONCILIATION AND ARBITRATION, 1907-1921 NEW YORK E. P. BUTTON AND COMPANY PUBLISHERS 60229 FRINTED IN GREAT BRITAIN BY BILLING AND SONS, LTD., GUILDFORD AND ESHER .^ -? ^ .-' -.3 PREFACE It has been suggested to me by friends who take an active interest in the solution of the world's in- K dustrial problems — friends in several countries — that I should state in book form the results of my ex- perience of nearly fourteen years, now that I have resigned the presidency of the Commonwealth Court of Conciliation and Arbitration. To comply with the suggestion, I think that I cannot do better than collect three articles which I wrote for the Harvard Law Review of November, 1915, January, 1919, December, 1920, and then add some supplemental matter and general conclusions. The editors of the Review have been good enough to assent to this course. I hope that my friends will not regard it as a device to spare myself effort. There is this advan- tage, that as the articles appeared at considerable intervals they are really a better indication of the gradual development of standards and practice in the solution of actual problems than any synthetic statement of the present position would be. I had to learn the business, with no book of instructions, no teacher other than experience, no kindly light except from the pole star of justice. It is my hope that this little book will afford some encouragement to men of public spirit who are endeavouring to VI PREFACE bring some order out of the present industrial chaos, for they will see how standards have been created for industrial relations, how the human instruments of industry have had their lives brightened, and how extremely few have been the stoppages of work in disputes within the competence of the Court. The book may also throw some light on certain dangerous rocks which discreet Governments and Parliaments would avoid. I desire to express my thanks to Mr. G. V. Portus, Director of Tutorial Classes in Sydney and General Editor of the W.E.A. Series, for his encouragement and valuable assistance in preparing this little book for the press. H. B. HIGGINS. Melbourne, March, 1922. CONTENTS CHAPTER I. PAGE An Article contributed to the Harvard Law Review, published in November, 1915 - - i CHAPTER II. An Article contributed to the Harvard Law Review^ published in January, 1919 - - 39 CHAPTER III. An Article contributed to the Harvard Law Review^ published in December, 1920 - CHAPTER IV. Subsequent Decisions - - - - - 124 CHAPTER V. The Future of Industrial Tribunals ■ - 145 APPENDICES. A, Industrial Peace Act, 1920; assented to Septem- ber 13, 1920 ------ 169 B. Statement made in Court by Mr, Justice Higgins on Announcing his Resignation (September 25, 1920) - - - - 172 Index - - - - - - - i77 A NEW PROVINCE FOR LAW AND ORDER CHAPTER I. An Article contributed to the Harvard Law Review, published in November, 1915. The new province is that of the relations between employers and employees. Is it possible for a civilized community so to regulate these relations as to make the bounds of the industrial chaos narrower, to add new territory to the domain of order and law ? The war between the profit-maker and the wage-earner is always with us ; and, although not so dramatic or catastrophic as the present war in Europe, it probably produces in the long run as much loss and suffering, not only to the actual com- batants, but also to the public. Is there no remedy ? During a brief sojourn in the United States in the summer of 1914, I had the good fortune to meet many men and women of broad and generous outlook and of admirable public spirit. They were anxious to learn what I, as President of the Australian Court of Conciliation and Arbitration, could tell them of Australian methods of dealing with labour questions. I propose now, on the invitation of the editor of this Review, to state briefly the present position, con- fining my survey to my own personal experience. 2 A NEW PROVINCE The Australian Federal Constitution of 1900 gave to the Federal Parliament power to make laws with respect to " conciliation and arbitration for the pre- vention and settlement of industrial disputes extend- ing beyond the limits of any one State." ^ Following the example of the United States Constitution, the Constitution left all residuary powers of legislation to the States ; and the theory generally held at the time of our constitutional convention was that each State should be left to deal with its own labour con- ditions as it thought best. But an exception was made, after several discussions, in favour of labour disputes which pass beyond State boundaries and cannot be effectually dealt with by the laws of any one or more States. Just as bushfires run through the artificial State lines, just as the rabbits ignore them in pursuit of food, so do, frequently, industrial disputes. In pursuance of this power, an Act was passed December 15, 1904, constituting a Court for con- ciliation, and where conciliation is found impractic- able, arbitration. The arbitration is compulsory in the sense that an award, if made, binds the parties. The Act makes a strike or a lock-out an offence if the dispute is within the ambit of the Act — if the dispute is one that extends beyond the limits of one State. In other words, the process of conciliation, with arbitration in the background, is substituted for the rude and barbarous processes of strike and lock-out. Reason is to displace force ; the might of the State is to enforce peace between industrial combatants as well as between other combatants ; and all in the interest of the public. 1 Sec. 51 (XXXV.). FOR LAW AND ORDER 3 Under the Act, the Court consists of a President, who must be one of the justices of the High Court of Australia. The High Court is modelled on the Supreme Court of the United States, having often to decide whether Acts are constitutional, but it is also a Court of Appeal from the Supreme Courts of the States. The first President of the Court of Con- ciliation was appointed February 10, 1905, and, on his resignation in September, 1907, I was appointed as his successor. The first task that I had to face was not, strictly speaking, conciliation or arbitration. The Federal Parliament imposed certain excise duties on agricul- tural implements manufactured, but it provided for the remission of the duties in the case of goods manufactured under conditions, as to the remunera- tion of labour, which the President of the Court should certify to be "fair and reasonable."^ The Act gave no guidance as to the model or criterion by which fairness and reasonableness were to be determined. In dealing with the first employer who applied to me for a certificate, I came to the conclu- sion that the Act was designed for the benefit of employees, and that it was meant to secure for them something which they could not get by individual bargaining with their employers. If A let B have the use of his horse on the terms that B give the horse fair and reasonable treatment, B would have to give the horse proper food and water, shelter and rest. I decided therefore to adopt a standard based on "the normal needs of the average employee, regarded as a human being living in a civilized community." This was to be the primary test in 1 Excise Tariff 1906. 4 A NEW PROVINCE ascertaining the minimum wage that would be treated as " fair and reasonable " in the case of un- skilled labourers. At my suggestion, many household budgets were stated in evidence, principally by house- keeping women of the labouring class ; and, after selecting such of the budgets as were suitable for working out an average, I found that in Melbourne, the city concerned, the average necessary expenditure in 1907 on rent, food, and fuel, in a labourer's house- hold of about five persons, was £1 12s. 5d. (about $7.80, taking a dollar as equivalent to 4s. 2d.) ; but that, as these figures did not cover light, clothes, boots, furniture, utensils, rates, life insurance, savings, accident or benefit societies, loss of employ- ment, union pay, books and newspapers, tram or train fares, sewing machine, mangle, school requisites, amusements and holidays, liquors, tobacco, sickness or death, religion or charity, I could not certify that any wages less than 42s. per week for an unskilled labourer would be fair and reasonable. Then, in finding the wages which should be treated as fair and reasonable in the cases of the skilled employees, I relied mainly on the existing ratios found in the practice of employers. If, for instance, the sheet- iron worker got 8s. per day when the labourer got 6s., the sheet-iron worker should get, at the least, 9s. when the labourer's minimum was raised to 7s. In the case referred to, the employer did not raise before me the point that the Act was invalid; but, having failed in his application for a certificate, he refused to pay the excise duty, and defended an action to recover the duty before the High Court on the ground that the Act was invalid ; and he suc- ceeded, by a majority of three justices to two, on FOR LAW AND ORDER 5 the ground that the Act was not really a taxation Act at all, but an Act to regulate labour conditions, and as such beyond the competence of the Federal Parliament.^ But the principles adopted in the case for ascertaining a "fair and reasonable" minimum wage have survived and are substantially accepted, I believe universally, in the industrial life of Australia. In the first true arbitration case — that relating to ship's cooks, bakers, etc. — the standard of 7s. per day was attacked by employers, but I do not think that it has been attacked since, probably because the cost of living has been rising. The Court announced that it would ascertain first the necessary living wage for the unskilled labourer, and then the secondary wage due to skill or other exceptional qualifications necessary. Treating marriage as the usual fate of adult men, a wage which doqg not allow of the matrimonial condition and the maintenance of about five persons in a home would not be treated as a living wage. As for the secondary wage, it seemed to be the safest course, for an arbitrator not initiated into the mysteries of the several crafts, to follow the distinctions in grade between employers as expressed in wages for many years. The distinction between the basic or primary or living wage and the secondary wage attributable to exceptional qualifications necessary for the perform- ance of the function is not fanciful ; it was forced on the Court by the problems presented and by the facts of industrial life. Yet it has to be borne in mind that though the essential natural needs come first, the conventional needs {e.g., of artisans as dis- 1 King V. Barger, Commonwealth v. McKay, 6 C.L.R. 41 (1908). 6 A NEW PROVINCE tinguished from labourers) become, by usage, almost equally imperative.^ The following propositions may, I think, be taken to be established in the settlement of minimum wages by the Court ; and it is surprising to find how often, as the principles of the Court's action come to be understood and appreciated, they guide parties disputing to friendly collective agreements, without any award made by the Court. 1. One cannot conceive of industrial peace unless the employee has secured to him wages sufficienj; for the essentials of human existence. ^ 2. This, the basic wage, must secure to the employee enough wherewith to renew his strength and to maintain his home from day to day.^ 3. The basic wage is the same for the employee with no family as for the employee with a large family. It rests on Walt Whitman's "divine average," and the employer need not concern him- self with his employee's domestic affairs. 4. The secondary wage is remuneration for any ex- ceptional gifts or qualifications,'* not of the individual employee, but gifts or qualifications necessary for the performance of the functions, e.g., skill as a trades- man, exceptional heart and physique, as in the case of a gas stoker,^ exceptional muscular training and power, as in the case of a shearer,^ exceptional 1 Engine-drivers, 7 C.A.R. 132, 139 (1913). 2 Boot-factories, 4 C.A.R. i, 10 (1910) ; Seamen, 5 C.A.R. 147, 164 (191 1). 3 Broken Hill Mine, 3 C.A.R. i, 20 (1909). * Boot-factories, 4 C.A.R. i, 10 (1910) ; Postal Electricians, 7 C.A.R. 5, 10 (1913) ; Builders' Labourers, 7 C.A.R. 210, 217 (1913)- s Gas Employees, 7 C.A.R. 58, 71 (1913), 8 Shearers, 5 CA.R. 48, 79 (191 1). FOR LAW AND ORDER 7 responsibilit}^ e.g., for human life, as in the case of winding or locomotive engine-drivers. ^ 5. The secondary wage, as far as possible, preserves the old margin between the unskilled labourer and the employee of the skilled or exceptional class. ^ 6. After ascertaining the proper wages, basic and secondary, the Court considers any evidence adduced to show that the employers ought not to be asked to pay such wages. ^ It will consider grounds of finance, of competition with imports, of unfairness to other workers, of undue increase of prices of the product, of injury to the public, etc. 7. The wages cannot be allowed to depend on the profits made by the individual employer, but the profits of which the industry is capable may be taken into account. If the industry is novel, and those who undertake it have to proceed economically, there may be a good case for keeping down wages, but not below the basic wage, which must be sacro- sanct. Above the basic wage, bargaining of the skilled employee may, with caution, be allowed to operate."* 8. The fact that a mine is becoming exhausted or poorer in its ores is not a ground for prescribing a lower rate than would otherwise be proper. If shareholders are willing to stake their own money on a speculation, they should not stake part of the employee's proper wages also. The Court cannot 1 Engine-drivers, 5 C.A.R. 9, 21 (191 1). 2 McKay, 2 C.A.R. i, 16(1907); Ship's Cooks, 2 C.A.R, 55, 65, 66 (1908). 3 Broken Hill Mine, 3 C.A.R. i, 31 (1909). * Ibid., 32 ; Shearers, 5 C.A.R. 48, 73 (1911) ; Ship's Officers, 6 C.A,R. 6, 21 (1912), 8 A NEW PROVINCE endanger industrial peace in order to keep unprofit- able mines going. ^ g. The Court does not increase the minimum on the ground of affluence of the employer. It is not affected by the fact that one of the employers can, by skilful management, by enterprise, or by good fortune, make very large profits.^ 10. The minimum rate must be based on the highest function that the employee may be called on to exercise. The employer must not give a plumber labourer's work and pay him labourer's wages if he has also to do plumbing.^ 11. In finding the proper minimum rate, the Court tries to find what would be proper for an employee of average capacity called upon to do work of the class required. If the employer desires to secure the services of an exceptional workman, he is free to do so. The payment of higher rates is left to the play of bargaining.* 12. The Court does not attempt to discriminate in wages on the ground of comparative laborious- ness. Discrimination on such a ground is neither safe nor sound. The Court declined to give an extra rate to hodmen if they carry beyond a certain height." 13. The Court will not discriminate in wages as between the several States so as to interfere with the ^ Broken Hill Mine, supra, 33-34 ; Engine-drivers, 7 C.A.R. 132, 139 (1913). 2 Seamen, 5 C.A.R. 147, 164 (191 1) ; Gas Employees, 7 C.A.R. 58, 72 (1913). 3 Postal Electricians, 7 C.A.R. 5, 8-9 (1913). * Ship's Stewards, 4 C.A.R. 61, 63, 68 (1910) ; Engine- drivers, 5 C.A.R. 9, 15(1911) ; Shearers, 5 C.A.R. 48, 91 (1911) ; Builders' Labourers, 7 C.A.R. 210, 223 (1913). *• Ibid., 231. FOR LAW AND ORDER 9 freedom of trade between the States provided by the Constitution.^ 14. The Court will not keep down wages on steamers so as to enable them to beat State railways in competition or to help one competitor against another.^ 15. The Court accepts and follows the usual practice of making rates for casual employment higher than the corresponding rates for continuous employment.^ 16. The Court, in obedience to the Act, provides exceptions to the minimum rate in the case of aged, slow, or infirm workers, but the exceptional cases must be disclosed to the representative of the union, and be well safeguarded.^ 17. But the Court will not provide exceptions to the minimum rate for ** improvers," men paid more than boys and less than journeymen, men who are used to beat down the claims of competent journey- men, and are thus a perpetual menace to the peace of the community.^ 18. The Court regards the old system of apprentice- ship as unsuitable for factories under modern con- ditions, and it objects to fixing a rigid proportion of apprentices to journeymen without regard to the circumstances — e.g., the character of the output of each factory. But if conditions of apprenticeship are in dispute, the Court will, especially if both sides wish it, and for the sake of peace as well as efficiency, make regulations on the subject. The proper method, 1 Constitution, Sec. 92 ; Boot-factories, 4 C. A. R. i, 13 (1910). 3 Ship's Officers, 6 C.A.R. 6, 22 (1912). 3 Builders' Labourers, 7 C.A.R. 210, 218 (1913). * Act, Sec. 40 ; Boot-factories, 4 C.A.R. i, 24 (1910). 5 Boot-factories, 4 C.A.R., i, 16 (1910). 10 A NEW PROVINCE however, seems to be, in boot-factories, to co-ordinate the work of the factories with the work of the technical schools.^ 19. The Court will not prescribe extra wages to compensate for unnecessary risks to the life or health of the employee or unnecessary dirt. No employer is entitled to purchase by wages the right to endanger life or to treat men as pigs.^ 20. The Court gives weight to existing conventions, usages, prejudices, exceptional obligations and ex- penses of the employees ; for instance, that masters and officers are required to keep up a certain appear- ance, and that stewards must provide themselves with uniform and laundry.^ 21. Where it is established that there is a marked difference in the cost of living between one locality and another, the difference will, so far as possible, be reflected in the minimum wage.** 22. But where, as in the case of the wharf labourers at ports, all the employees and nearly all the employers desired that there should be no differentiation, the Court bases the minimum wage on the mean Aus- tralian cost of living.^ 23. In cases such as that of ship's stewards, where the employees usually receive from passengers "tips" (or "bunce"), the average amount of the tips must * Boot-factories, 4 C.A.R. 19, 20 (1910). 2 Ship's Cooks, 2 C.A.R. 55, 59,60 (1908) ; Seamen, 5 C.A.R. 147, 164(1911). 3 Ship's Officers, 4 C.A.R. 89, 93, 95 (1910) ; Ship's Stewards, 4C.A.R. 61, 66 (1910). * Broken Hill Mine, 3 C.A.R. i, 28-30 (1909) ; Engine- drivers, 5 C.A.R. 9, 23 (191 1) ; 7 C.A.R. 132, 141 (1913) ; Fruit- growers, 6 C.A.R. 61, 69 (1912) ; Gas Employees, 7 C.A.R. 58, 70-74 (1913) ; Builders' Labourers, 7 C.A.R. 210, 221 (1913). 5 Wharf Labourers, 8 C.A.R. (1914). FOR LAW AND ORDER ii be taken into account in finding whether the employee receives a living wage. But the minimum wage will be raised to its proper level if the practice of tipping can be stopped.^ 24. In cases where employees are '' kept," found in food and shelter by the employer, the value of the " keep " is allowed in reduction of the wages awarded. At a time when the keep of single men, such as labourers, cost in lodgings, usually 15s. per week, the Court reduced the wages by los. only. For the 15s. at the family home would go further than it would go for board and lodging outside the home ; and the emplo3^er who feeds a large number of men can buy the necessary commodities in large quantities and on advantageous terms. The los. per week seemed to represent fairly the amount of expenditure of which the home was relieved by the absence of the man.^ 25. The principle of the living wage has been applied to women, but with a difference, as women are not usually legally responsible for the maintenance of a family. A woman's minimum is based on the average cost of her own living to one who supports herself by her own exertions. A woman or girl with a comfortable home cannot be left to underbid in wages other women or girls who are less fortunate.^ 26. But in an occupation in which men as well as women are employed, the minimum is based on a man's cost of living. If the occupation is that of a blacksmith, the minimum is a man's minimum ; if the occupation is that of a milliner, the minimum is ^ Ship's Stewards, 4 C.A.R. 61, 64 (1910). '^ Ship's Cooks, 2 C.A.R. 55, 62" (1908) ; Ship's Stewards, 4 C.A.R. 61, 63(1910). 3 Fruit-growers, 6 C.A.R. 61, 71 (1912). 12 A NEW PROVINCE a woman's minimum ; if the occupation is that of fruit-picking, as both men and women are employed, the minimum must be a man's minimum.^ 27. As regards hours of work, when disputed, the Court usually adheres to the general Australian standard of 48 hours ; generally 8f hours on five days, 4I hours on Saturday. But in exceptional cases the Court has reduced the hours ; in one case because of the nerve-racking character of the occupation f in another case, that of builders' labourers, because the men have to " follow their job," spending much of their own time in travelling.^ 28. The Court has conceded the eight hours' day, at sea as well as in port, to deckhands on ships ;^ to officers on ships,^ to marine engineers.® But there are sundry necessary exceptions, and the Master retains the absolute right to call on any man in emergencies involving the safety of the ship ; and for other purposes he may call on any man, paying extra rates for the overtime. The hours of navigating officers were sometimes shocking, and involved danger to ship, cargo, and passengers.'^ 29. In certain exceptional cases the Court has granted a right to leave of absence for two or three weeks on full pay to employees after a certain length of continuous service ; not, of course, to casual or temporary employees.^ ^ Fruit-growers, 6 C.A.R., 72. 2 Postal Electricians, 7 C.A.R. 5, 15-16 (1913). 3 Builders' Labourers, 7 C.A.R. 210, 228-9 (^Q^S)- * Seamen, 5 C.A.R. 147, 159, 160 (1911). 5 Ship's Officers, 4 C.A.R. 89, 99 (1910). ® Marine Engineers, 6 C.A.R. 95, 107 (1912). 7 Ship's Officers, 6 C.A.R. 6, 16, 17 (1912). 8 Ibid., 15, 25 ; 7 C.A.R. 92, 104 (1913) ; Postal Electricians, 7 C.A.R. 5, 17 (1913). FOR LAW AND ORDER 13 30. The Court refuses to dictate to employers what work they should carry on, or how; or what functionaries they should employ, or what functions for each employee ; or what tests should be applied to candidates for employment.^ 31. The Court leaves every employer free to carry on the business on his own system, so long as he does not perpetuate industrial trouble or endanger industrial peace; free to choose his employees on their merits and according to his exigencies ; free to make use of new machines, of improved methods, of financial advantages, of advantages of locality, of superior knowledge ; free to put the utmost pressure on anything and everything except human life.^ 32. As regards complaints of disagreeable or onerous conditions, the Court treats as fundamental the consideration that the work of the ship, factory, mine, etc., must be done, a consideration next in order to that of the essential needs of human life. An order will not be made that is inconsistent with the effective management of the undertaking.^ 33. On the same principle the Court steadily refuses to make orders which would militate against the public interest or convenience. It has refused to order prohibitive overtime rates for leaving port on Sundays;* it has refused to forbid the employment of casuals or to forbid ** broken time " in tramway services. Casuals or ** broken time," or both, are 1 Broken Hill Mine, 3 CA.R, i, 36 (1909); Postal Elec- tricians, 7 CA.R, 5, 7, 8, 13, 18, 19 (1913). 2 Boot-factories, 4 CA.R. i, 18 (1910) ; Shearers, 5 CA.R. 48, 100 (1911) ; Fruit-growers, 6 CA.R. 61, 75 (1912) ; Gas Employees, 7 CA.R. 58, 77 (1913). 3 Ship's Stewards, 4 CA.R. 61, 73 (1910) ; Ship's Officers; 4 CA.R. 89, loi (1910). * Seamen, 5 CA.R. 147, 160 (191 1). 14 A NEW PROVINCE necessary to meet the extra traffic at certain times of the day.^ These are some of the principles of action adopted by the Court. But, it may be asked, what about piecework ? How does the Court fix piecework rates ? The -first great case in which piecework rates were directly involved was that of the shearers,^ At the time of the arbitration, wool furnished nearly 40 per cent, of the exports of Australia, nearly £29,000,000 per annum, in addition to the wool used in Australia. In that case the Court prescribed the piecework rates on a time-work basis — found the piecework rates which would enable an average shearer to earn such wages per week as would be^ the just minimum for a man with the qualifications of a shearer if he were paid by time. Having found that the shearer should, as a ** skilled " worker, get a net wage of £^ per week for the time of his expedition to the sheep stations to shear, and having found that a rate of 24s. per 100 sheep would give this net result, the Court fixed 24s. per 100 as the minimum rate.^ In finding the net returns of the whole expedition, allowances had to be made for days of travelling and waiting, expenses en route, cost of mess and combs and cutters."* This system of finding the net result of the expedition, and what would be a fair return for the expedition, was also adopted in the case of persons employed by fruit- growers on the River Murray.^ Sometimes the Court protects piece-workers in making their bargain by prescribing that their remuneration shall not fall below, in result, a certain timework minimum.® ^ Tramways, 6 C.A.R. 130, 144 (1912). 2 5C.A.R. 48 (191 1). 3 Ibid., 73, 79. * 5 C.A.R. 74, 76. ^ Fruit-growers, 6 C.A.R. 61, 68 (1912). " Ibid., 75. FOR LAW AND ORDER 15 The sy^stem of arbitration adopted by the Act is based on unionism. Indeed, without unions, it is hard ^ conceive how arbitration could be worked. It is tru^ttrar'fhSTS'-^Te'-mefhods provided by which the Court can intervene for the preservation of industrial peace even when its powers are not invoked by any union ; but no party can file a plaint for the settle- ment of a dispute except an ** organization," that is to say, a union of employers or of employees regis- tered under the Act.^ One of the " chief objects " of the Act, as stated in Sec. 2, is " to facilitate and en- courage the organization of representative bodies of employers and of employees and the submission of industrial disputes to the Court by organizations "; and it follows that the Court will not assist an em- ployer in devices to stamp out unionism.'-^ It is, of course, better for an employer that he should not be worried by complaints of individual employees and that any complaints should be presented collectively by some responsible union. He has then the advan- tage of being able to deal with his employees on a consistent scheme, equitable all round the service, and his time is not taken up by petty complaints or individual fads. A demand made on him comes from a responsible executive, with the consent, direct or indirect, of the organized body of members of the union. Moreover, from the point of view of the employees, it is better that an individual employee should not, by complaining, incur the risk of becom- ing a marked man or of being removed, and the individual employee is generally powerless. From the point of view of the Court and of the public, it is fair to state that in nearly every case — I can only ^ Sec. 19. 2 Tramways, 6 C.A.R. 130, 143 (1912). i6 A NEW PROVINCE remember one case to the contrary — the influence of union leaders has always been in the direction of peace. It would not be so, probably, if there were no means of obtaining an improvement of conditions except by strike, actual or threatened, but in Australia the leaders can hold out to the members of the union a prospect of relief without strike, from the Court or from some wages board.^ It is significant that in the one exceptional case referred to, the leaders of the union have been converted, so that they are now strong advocates of arbitration. But then comes the difficult question of ** prefer- ence to unionists." Preference to unionists is the Australian analogue of the "preferential union shop " made familiar in some of the garment industries of the United States. The Act gives the Court power to direct that as between members of organizations (unions) of employees and other persons desiring employment at the same time preference shall be given to such members, other things being equal.^ But it is only a power, not a duty, to order such preference ; and the Court is very loth to exercise the power. " The absolute power of choice (between applicants for employment) is one of the recom- mendations of the minimum wage system, from the employer's point of view — he can select the best men available when he has to pay a certain rate."^ For this reason preference was refused in the case of shearers, etc.;* in the case of seamen f in the case of builders' labourers.® Yet the Court recognizes the * Marine Engineers, 6 C.A.R. 95, 100 (191 2). 2 gee. 40. 3 Engine-drivers, 5 C.A.R. 9, 25 (191 1) ; 7 C.A.R. 132, 147 (1913) ; Tramways, 6 C.A.R. 35, 47 (1912). * 5 C.A.R. 48, 99 (191 1). s 5 C.A.R. 147, 170 (191 1). « 7 C.A.R. 210, 233 (1913). FOR LAW AND ORDER 17 difficulty of the position. As was said in the builders' labourers case : "The truth is, preference is sought for unionists in order to prevent preference of non-unionists or anti-unionists — to prevent the gradual bleeding of unionism by the feeding of non-unionism. It is a weapon of defence. For instance, some employers here hired men through the Independent Workers' Federation — a body supported chiefly by employers' money, and devised to frustrate the ordinary unions ; and those who applied for work at the office of this body would not be introduced to the employer unless they ceased to be members of the ordinary unions and became members of this body. What is to be done to protect men in the exercise of their right as free men to combine for their mutual benefit, seeing that the employing class has the tremendous power of giving or withholding work ? The only remedy that the Act provides is an order for preference ; and it is doubtful whether such an order is appropriate or effective. It is, indeed, very trying for men who pay full dues to a legitimate union to work side by side with men who do not — with men who look to their own interests only, seeking to curry favour with the employers, getting the benefit of any general rise in wages or betterment of conditions which is secured without their aid and in the teeth of their opposition, men who are preferred (other things being equal) for vacancies and promotion. Every fair man recognizes the difficulty of the position — every man who is not too much of a partisan to look sometimes at the other side of the edge. In another case recently before me, a non-unionist told me that he acted solely on the basis of his personal interest, without any regard for i8 A NEW PROVINCE the interests of his fellow-workers. He looked for favours to himself, because he kept away from those who combined for the common good of the whole body. It is not out of consideration for such men that I refuse preference ; it is rather out of considera- tion for such employers as honestly take the best man available, unionist or not. I do not want them to be harassed with the doubt, when selecting men for a post, whether they can prove their appointee to be better than all the unionist applicants. I refuse preference also out of consideration for many who have not joined any union simply because they have not felt the need. In the case of country building work, for instance, it is common for men on farms, etc., when farm work is not pressing, to take a job as builders' labourer. Why should the employer be compelled to bring union labourers from the city ? After all, the direct way for unionists to counteract unfair preference of non-unionists is for the unionists to excel — to give to the employer the best service. It is nearly always found that employers prefer a first- class man who is unionist to a second-class man who is non-unionist."^ The only case in which the Court has ordered preference is the case of a tramway company which deliberately discriminated against unionists and re- fused to undertake not to discriminate in future.^ It is to be observed that the Court is not given power by the Act to order that the employer shall not dis- criminate against unionists in giving or withholding employment. The imposition of a minimum wage, a wage below ^ 7 C.A.R. 2IO, 233-4 (1913). 2 Tramways, 6 C.A.R. 130, 162 (1912). FOR LAW AND ORDER 19 which an employer must not go in employing a worker of a given character implies, of course, an admission of the truth of the doctrine of modern economists, of all schools I think, that freedom of contract is a misnomer as applied to the contract between an employer and an ordinary individual em- ployee. The strategic position of the employer in a contest as to wages is much stronger than that of the individual employee. " The power of the employer to withhold bread is a much more effective weapon than the power of the employee to refuse to labour."^ Low wages are bad in the worker's eyes, but un- employment, with starvation in the background, is worse. The position was put luminously once, as well as with unconscious humour, by an employer on whom a plaint was served for settlement of a dispute by the Court. In place of filing an answer he wrote a letter to the registrar, denying that he was a party to any dispute. " I have never," said he, " quarrelled or disputed with a labourer of any kind. ... If we cannot agree, well, we will part ; that ends the whole . . . Love is the power which will end all struggles, not legislation." Other respondents pin their faith, not to *' love," but to the sterner " law of supply and demand." They treat this law as being, in the matter of wages, more inexorable and inevitable than even the law of gravitation, as not being subject, as laws of nature are, to counteraction, to control, to direction. " One may dam up a river, or even change its course ; but one cannot (it is said) raise wages above the level of its unregulated price, above the level of a sum which a man will accept rather than be ^ Engine-drivers, 5 C.A.R. 9, 27 (1911). 20 A NEW PROVINCE starved." 1 If the Court did nothing else than drag such theories into the hght of day, and into free dis- cussion, it would be doing good service to the com- munity. But it is coming to be recognized that what the Court does in fixing a minimum wage is by no means novel in principle. There are many Acts of many Legislatures which prescribe minimum condi- tions on other subjects. For example, Mining Acts often prescribe minimum conditions as to ventilation, timbering, safety appliances, machinery, sanitation. These matters are not left to individual bargaining. There are no definite figures with regard to the cost to the parties of arbitration proceedings, but the cost is very slight. There are seldom any costs incurred in employing lawyers, for, under Sec. 27 of the Act, lawyers cannot be employed except with the consent of both parties, and the employees generally refuse their consent. The secretary of the organization generally puts its case, and the employers or some permanent officer generally put the employers' case. The principal expense of an arbitration is that of bringing witnesses. If prohibition proceedings are taken in the High Court to prevent the enforcement of an award on the ground that the Court of Concilia- tion has exceeded its jurisdiction (of which I shall say more presently), no doubt heavy, very heavy, expenses are incurred, but these are not expenses of the arbitration. But it has to be admitted that proceedings in the Court of Conciliation often take a very long time, sometimes weeks, in a few cases months. The pro- ceedings cannot be otherwise than lengthy, as the 1 Engine-drivers, 5 C.A.R. 27, 28 (191 1); Ship's Officers, 6 C.A.R. 6, 18 (1912) ; Marine Engineers, 6 C.A.R. 95, loi (1912). FOR LAW AND ORDER 21 disputes of which the Court can take cognizance are so widespread — must extend from one State into one or more other States. Moreover, the habit is to bring before the employers, and afterwards before the Court, a very long list of conditions in dispute, and the case of each employer has to be fairly considered by the Court in connection with each grievance. The number of employers respondents to a plaint is generally great. There were 311 employers in the Engine-drivers' case ;^ 570 in the case of the Builders' labourers,^ 650 in that of the Fruit-growers f and 2,549 3.t least in that of the Shearers.^ The Court has no power to make an award a common rule of the industry ; it cannot investigate and settle the proper conditions to be applied in one typical undertaking and then extend the same conditions to other under- takings of the same character. The act purported to give this power to the Court, but it was held by the High Court, on a case stated, that the Act was in this respect unconstitutional and invalid.^ This want of power to make a common rule for the industry not only lengthens the proceedings, but it also may operate to the prejudice of the employers who are bound by the award. For the Court can deal only with employers who employ members of the union. Some rival employers may have no members of the union in their employment and therefore have to be excluded from the award. Their hands are free as to wages, while the hands of the others are fettered, and this is, of course, unfair as between competitors 1 7 C.A.R. 132 (1913). 2 7 c.A.R. 210 (1913). 3 6 C.A.R. 61, 65 (1912). * 5 C.A.R. 48, 65(1911). ^ Boot-factories, 11 C.L.R. 311 (1910). 22 A NEW PROVINCE in the trade. In one case, that of the boot factories/ the difficulty was met by the employers and em- ployees concurring in an application before the wages boards of each of the States concerned to have the terms of the award made a common rule for the State. But this remedy is not always available. There is a provision in the Act^ enabling the Court to appoint a board of reference, assigning to it the function of determining specified matters which under the award may require to be determined. Such a provision, if properly drafted and valid, would be of eminent service to peace. Difficulties often arise under an award, owing to the vast variety of methods in the different undertakings, as to the application of the words of the award to some particular case. These and other difficulties ought to be met by collective adjustment, between representatives of the employers on the one side, and the representatives of the union on the other, with a neutral chairman ; but from the nature of the case there would have to be a separate board in each of the centres of the industry. Nothing would tend more to prevent serious friction and to promote a mutual understanding of employers and employees. ** A suitable Board of Reference under the aegis of a strong union, is a safety-valve for any industry."^ But, unfortunately, as the section stands, with the interpretation put upon it by the High Court, it is practically useless. The parties on both sides of a dispute often seek a board, or rather boards, of reference,^ but the Court cannot generally help them. Sometimes, however, ^ 4 C.A.R. I (1910) ; Builders' Labourers, 7 C.A.R. 210, 235 (1913)- ^ Sec. 40 a. ^ Engine-drivers, 7 C.A.R. 132, 144 (1913). * Seamen, 6 C.A.R. 59 (1912). FOR LAW AND ORDER 23 the parties to the dispute make and file agreements between the union and the several employers for a board and leave the Court to award on the other subjects in dispute ; and the agreements are certified by the Court, and on being filed under Sec. 24 have the same binding effect as an award.^ There are two important powers of which the Court has frequently availed itself, or threatened to avail itself, with very excellent effect.^ These are : {a) the power to withhold an award if it appear "that further proceedings by the Court are not desirable in the public interest ;"^ and (6) the power to vary an award.^ Sometimes the employees, though seeking an award, have taken up an obstinate attitude, inti- mating in effect that if the award does not meet their wishes they will not abide by it ; and the Court has plainly intimated that it will not proceed with the arbitration on such terms.^ It cannot be for the public interest to proceed with the arbitration under such a constraint. Arbitration by the Court is meant to be a substitute for the method of strike, and " you cannot have award and strike too."® In one case, while the Court was preparing an award for seamen and firemen, information came that the firemen of the s.s. Koombana refused to work on the ship unless a certain chief steward were removed. The position was serious; the ship carried the mails, as well as passengers and cargo, for ports on the West Austra- lian coast. There was an agreement in existence ^ Engine-drivers, 7 C.A.R. 132, 135 (1913). 2 Fruit-growers, 6 C.A.R. 61, 78 (1912). 3 Sec. 38 h. * Sec. 38 0. . ^ Gas Employees, 7 C.A.R. 58, 62 (1913) ; Broken Hill Mine, 3 C.A.R. I, 20 (1909). « Liquoi- Trade, 7 C.A.R. 255 (1913). 24 A NEW PROVINCE under which it was a breach of agreement on the part of the union if by reason of any dispute a vessel were detained twenty-four hours. The Court inti- mated that it would not make its award so long as the agreement was not observed. As a result, officials of the union conducted suitable firemen to the port where the vessel lay, put them on board, and the Koombana went on her way ; then, and not till then, the Court gave its award.^ The power to vary an award has also been held over the head of a recalcitrant union. It^ is not fair to keep the employers bound by the award if the union takes the benefit of the award and rejects th6 burden. The Court has power to lower or annul the minimum wage in such a case if necessary.^ For- tunately it never has been necessary. I may give one case in point. The wharf labourers were on strike in Brisbane; seamen who were enjoying the benefit of an award were ordered to unload their vessel. They were naturally indisposed to comply, but, before refusing, they telegraphed to the Execu- tive of their union for directions. They were told by the Executive to unload or they would lose the award. They unloaded. Another very valuable power is that conferred by Parliament in 1910, under which the President may, when a dispute exists or is threatened, summon any person to attend a conference in his presence. The attendance is compulsory, enforcible by penalty.^ Frequently a quiet talk at such a conference has prevented a strike which was imminent.^ Fre- ^ Seamen, 5 C.A.R. 147, 173-4 (1911)- 2 Fruit-growers, 6 C.A.R. 61, 78 (191 2). ^ Sec, 16 a. * Seamen, 4 C.A.R. 108 (1910) ; 5 C.A.R. 147, 154 (1911) ; Fruit-growers, 5 C.A.R. 37, 183 (1911); 6 C.A.R. 61, 62 {1912) ; FOR LAW AND ORDER 25 quently the parties arrange to proceed for arbitration and make temporary arrangements for carrying on work until tiie award.^ Sometimes an actual strike confined to one State, though the dispute extended to two States, has been stopped, the men going back to work at the old rates until the award.'^ A further amendment was made in the Act in 1911, under which, if no agreement has been reached at the con- ference, the President can refer the dispute into the Court for arbitration.^ The fact that this whip is in the hands of the President, to be used in the last resort, and that the party with the stronger position for the time being will have to submit to an award if he takes up an obstinate attitude against all agree- ment, is found to operate as a strong inducement to compromise and to reasonable arrangements by con- sent. Arrangements in lieu of award have often been fixed up in a conference or as the result of a confer- ence.'* The agreements are generally produced in Court when the case is called on, and the President certifies to them, and has them filed, and they operate, are enforcible, as an award.^ In one long case, where the Court was faced with a dispute in ten tramway undertakings, no less than eight of the undertakings arranged agreements during the course of the long Steamboat Engine-men, 6 C.A.R. 60 (1912) ; Bakers, 7 C.A.R. 257-8 (1913). ^ Export Butchers, 4 C.A.R. 82, 87 (1910) ; Glass Bottle Makers, 6 C. A. R. 176(1912); Steamboat Engine-men, 7 C.A.R. 37 (1913) ; Bakers, 7 C.A.R. 257-8 (1913). 2 Export Butchers, 7 C.A.R. 52-54 (1913). ^ Sec. 19 d. * Engine-drivers, 6 C.A.R. 126 (1912) ; Glass Bottle Makers, 6 C.A.R. 176(1912); 7 C.A.R. 43 (1913) ; Seamen (as to man- ning), 7 C.A.R. 2 (1913) ; Journahsts, 7 C.A.R. 112, 113 (1913) ; Liquor-trade, 6 C.A.R. 129 (1912) ; 7 C.A.R. 254 (1913). ^ Sec. 24. 26 A NEW PROVINCE hearing, with the assistance of the President given in frequent interviews with the parties in chambers.^ It must not be supposed that the desire for the assistance of the President or of the Court is confined to employees. At first there was a tendency on the part of employers, individually and in association, to resent interference, as preventing the employers from carrying on, as they said, their own business in their own way. But the facts have been too strong for them. Employers now frequently request the Presi- dent to intervene and to summon a conference in order to prevent a stoppage of work.2 They seek regulation, by agreement or award, in order that they may not find their plant lying idle and their business at a standstill, and, in some cases, a season lost. Perhaps it will be well to give a concrete case. There is, in Victoria, a great butchering trade in lambs for export, involving, I believe, more than a million pounds per annum. The lambs are sent down to Melbourne in the spring, September, or October ; and unless they are butchered at once they deteriorate in condition and the season is lost. The men suddenly refused to go to work at the old rates ; telegrams flew up to the country settlements to stop trucking any more lambs ; the settlers were faced with the prospect of losing their market, and the storekeeping and incidental industries with the pros- pect of grievous loss. It so happened that the same demand was made on employers in New South ^ Tramways, 6 C.A.R. 130, 140 (1912) ; and see Journalists, 7 C.A.R. 112, 113 (1913). 2 Seamen, 4 C.A.R. 108 (1910) ; 5 C.A.R. 147, 154(1911) ; Fruit-growers, 5 C.A.R. 37 (1911); Waterside Workers, 6 C.A.R. 3 (1912) ; Glass Bottle Makers, 6 C.A.R. 176 (1912) ; Liquor Trade, 7 C.A.R. 254(1913) ; Export Butchers, 5 C.A.R. 52 (1913) ; Victorian Stevedoring Co., 5 C.A.R. i (191 1). FOR LAW AND ORDER 27 Wales, so that there seemed to be a two-State dis- pute which gave jurisdiction to the President. A conference was summoned at the request of the em- ployers, the men induced to go to work under the conditions already in operation on a promise that the Court would arbitrate and make the award retrospec- tive to the resumption of work, and the season was saved.' The parties prepared themselves peacefully to discuss their differences before thejCourtiJ),ut-3- this is the point — the work went on. Another concrete case, showing the desire of both sides for definite regulation of conditions by the Court, is that of the ship's officers. The men, in their demands, had been too specific ; the High Court had decided that the dispute must be treated as confined to the specific demands made, and that the Court of Conciliation could not prescribe a remedy for any grievance different from that remedy demanded. The Court of Conciliation found that the granting of the demands, as asked, would tend to promote strife rather than peace in the industry, and stated its difficulties to the parties. Both parties were so anxious for a definite arrangement of condi- tions that they consented to embody in an agreement any terms whatever that the President thought proper, whatever the ambit of the dispute, whatever the jurisdiction of the Court. The President accordingly continued the hearing of the case and drew up an agreement which both parties signed and which they have both loyally observed.^ There is such a strong desire for the assistance of the machinery of the Act that on several occasions 1 Export Butchers, 7 C.A.R. 52, 54 (1913). 2 Ship's Officers, 4 C.A.R. 89, 91 (1910). 28 A NEW PROVINCE an attempt has been made by the employers, with or without the concurrence of employees, to induce the President to intervene in cases in which he has had to refuse his assistance, on the ground that the dis- pute does not extend beyond one State and must be dealt with, if at all, by State authorities.^ Quite recently the President has had, however, to make an exception to his rule not to meddle, even by consent, with matters outside his jurisdiction. There was a dispute between labourers and artisans on the one side and the Commonwealth Government on the other, as to conditions of labour in the construc- tion of a naval base in Western Port, Victoria ; all parties signed a submission to arbitration, leaving everything to the determination of the President as in a voluntary arbitration. In view of the serious effects of a stoppage of the works in time of war, the President consented to act, heard the parties, and gave an award, and the parties are peacefully acting in accordance with it.^ But the course of the Court, like the course of true love, does not always run smooth. It has to meet some bitter opposition. Sometimes the opposition comes from a union of employees — generally, a union which avowedly accepts the doctrine of the " class war," and aims at " the emancipation of labour by the abolition of the wage system."^ I have even seen a cartoon, in a labour newspaper, showing a labourer walking towards a gate marked " Freedom," and a bull-dog with a collar marked "Arbitration" ^ Victorian Stevedoring Co., 5 C.A.R. i (191 1) ; Hairdressers, 6 C.A.R, I (1912). 2 Naval base — not reported. 3 Fruit-growers, 6 C.A.R. 61, 65, 78 (191 2). FOR LAW AND ORDER 29 bars his path. It is but fair to say that this cartoon appeared in a State which has a local Arbitration Court. But the attacks on the Court and its awards are, of course, generally made from the side of em- ployers, many of whom naturally resent any curtail- ment of their powers. The applications for prohibi- tion against the President have been sometimes in part or temporarily successful. Prohibition is applied for because of some alleged excess of the Court's jurisdiction, and the argument generally turns on the question, was there a dispute, and if there was, did it extend beyond one State ? Sometimes the argument turns on the validity of some section of the Act. The proceedings are very long and very costly, and it is astonishing what a wealth of learning is involved in the meaning of the word " dispute " and the words ** extending beyond the limit of any one State." The discussions occupy a very considerable proportion of the Commonwealth Law Reports, but they would not interest those for whose information I write this article. The legal discussions do not affect the prin- ciples or methods of action of the Court of Concilia- tion in cases where there is jurisdiction. It has to be admitted that the awards, in nearly all cases, have been made in a period when the cost of living is rising and that therefore they have gener- ally increased the existing minimum rate. The Court found, about igii, that the cost of living was sub- stantially increasing, but it refused to raise the basic wage until the increase could be quantitatively stated.^ It suggested the expediency of official statistics on the subject, and the Commonwealth Statistician now furnishes periodically statistics which have materially 1 Engine-drivers, 5 C.A.R. g, 14, 16 (1911). 30 A NEW PROVINCE assisted the Court. According to the Commonwealth Statistician, the cost of living, taking Australia as a whole, has increased by 25 per cent, from 1901 to 1913. For such necessaries as could be bought in 1901 for £1, one must now pay 253.^ What will happen if the cost of living should decrease — if the minimum for the basic or living wage shall have to be lowered ? It is a fair question, but it is for the future to give the answer. I wish to confine my words to my personal experience. Yet there have been cases in which the Court has refused increases or has actually decreased the minimum rates, and the employees have listened to the reasons and loyally submitted. In the case of the shearers,^ the rates for shearing, 24s. per 100, as fixed by my predecessor, were not increased ; and the strongest union in Aus- tralia, the Australian Workers' Union, acquiesced. In the same case, the Court found that too high minimum rates had previously been fixed for wool- pressers and lowered them, stating its reasons. There was no strike, no refusal to work, no expression, that I know, of discontent. In the case of the builders' labourers,^ the Court fixed lower rates for Ballarat and Bendigo than for Melbourne, and lower rates for Melbourne than for Sydney, all because of differences in the cost of living. The union leaders were troubled because those cities had always maintained the same " union rate " ; but they told the members of the union the Court's reasons, and there was peace. Again, in the same case, the Court fixed for Melbourne a lower minimum rate for scaffolders and ^ Postal Electricians, 7 C.A.R. 5, 12 (1913). 2 Shearers, 5 C.A.R. 48 (191 1). 3 Builders' Labourers, 7 C.A.R. 210 (1913). FOR LAW AND ORDER 31 demolishers than had been previously fixed by the wages board — is. 3|d. per hour instead of is. 4|d. per hour ; and the men submitted. The truth is, I think, that if the men secure the essentials of food, shelter, clothing, etc., they are not so unreasonable as is sometimes supposed. They do not love strikes for the sake of strikes ; and the great majority are generally quite willing to submit to reason if they feel that they are reasonably treated. This article is confined, as I stated at the beginning, to the Federal Court of Conciliation and to my own actual experience in connection therewith. But American readers should know that in each of the six Australian States there is some wages board system under the State law or some Industrial or Arbitration Court. Victoria was the first State to adopt a system of wages boards, about i8g6; and her example has been more or less followed in Queensland, South Australia, and Tasmania. Western Australia has an Arbitration Court, and New South Wales has a combination of the two systems, wages boards and an Industrial Court. There is no organic connection between the State systems and the Federal system. The object of the wages boards is primarily to prevent sweating or under-payment ; the object of the Federal Court is to preserve or restore industrial peace. The Federal Court deals with disputes, as such, and pre- scribes wages, etc., merely as incidental to the pre- vention or settlement of disputes; the wages board prescribes minimum wages and has no direct relation to disputes. But, as is obvious from the nature of the case, the systems often overlap. A wages board consists, generally, of representatives selected by employers and of representatives selected by em- 32 A NEW PROVINCE ployees in equal numbers, with a neutral chairman. There is not, I think,"any fixed principle stated by the Legislatures for the guidance of the boards in prescribing the minimum wage. At one time, the Victorian Legislature enacted that the minimum wage should not exceed the wage paid by " reputable employers "; but this negative provision has been found unsuitable, and repealed. The wages boards cannot deal with all industrial conditions ; the Federal Court can deal with any industrial condition that comes into dispute. The wages boards do not publish the reasons for their determinations; the Federal Court does. As a result I find that the wages boards frequently look for guidance in their action to the reasoning of the Federal Court. The wages boards, within the limits of area assigned to them, bind all employers by their determinations ; the Federal Court can only bind those who are concerned in the dispute. The wages boards, being State creations, are very much affected by the consideration of inter-State competition.^ In dealing with boot-factories, the New South Wales Tribunal would have fixed the minimum for journeymen at gs. per day, but for the fact that the rival factories of Victoria had a minimum of 8s. per day. The Federal Court, when asked to intervene, was able, as an Australian tribunal, to bind the employers of both States to pay the gs. per day.^ Another weakness in the wages board system is that employees, in the presence of an employer or a pos- sible employer, have not the independent position which would enable them to act fearlessly. This is especially the case where, as in the case of city tram- ^ Engine-drivers, 5 C.A.R. 9, 17 (1911). 2 Boot-factories, 4 C.A.R, i, 8 (1910). FOR LAW AND ORDER 33 ways, there is only one undertaking where a tramway man can get employment. In the case of the Brisbane tramways it appeared that it was the manager who, as a member of the wages board, made all the pro- posals, and that every one of his proposals was carried unanimously.^ Again, the decision of the wages board of one State is frequently inconsistent with the decision of the wages board of an adjoining State. There is no one final co-ordinating authority as in the case of the Federal Court, and the result is often that con- trasts appear, and dissatisfaction arises, and industrial trouble. For instance, a large mining district, of essentially the same physical and industrial character, with the same cost of living, is divided by the artificial boundary line between two States. The wages board of one State prescribed one set of wages and con- ditions, the wages board of the other State prescribed a lower set. The consequences were disastrous.^ A New South Wales wages board gave in the case of builders' labourers,^ the lowest rate to scaffolders, and the highest to hodmen. The Victorian wages board gave the highest rate to scaffolders. The New South Wales board gave a low rate to demolishers ; the Victorian board gave the highest rate. The Federal Court, when it came to act, prescribed a flat minimum rate for all the labourers, and the employees were satisfied. They knew that a man of exceptional value as a scaffolder or in any other capacity would still be able to demand and obtain a rate higher than the minimum. It is often said that the minimum rate tends to become the maximum, but there has ^ Tramways, 6 C.A.R. 130, 149 (1912). * Engine-drivers, 7 C.A.R. 132, 145 (1913). 3 Builders' Labourers, 7 C.A.R. 210(1913). 3 34 A NEW PROVINCE been no proof of such tendency as yet. Moreover, the wages boards are often not suitably grouped, and there is a tendency to ignore the interests of un- represented minorities, of employers as well as of em- ployees. For example, there was in Victoria a " hay, chaff, wood, and coal board," composed, as to em- ployers, of ordinary wood, coal, and produce retailers. They managed to get a determination which kept their own yardmen at low wages, but fixed a dispro- portionately large minimum for yardmen who handled coke, because the Gas Company of the city was practically the only vendor of coke and it was not represented on the board. ^ But most of these defects, and other defects which I could point out, are not of the essence of the system and will probably be removed or obviated in the light of experience. Employers have assured me that they welcome the fixing of minimum rates by the boards or by the Court. They know now definitely what they must pay, and, so long as they pay it, they feel no more the incessant nagging of unions or employees as to wages. -Nor can any impartial person deny the im- mense relief which the system of wages boards has afforded to thousands of the most helpless families throughout Australia. Wages boards constitute one of the most useful factors of those which tend, in the words of Russell Lowell, to " lift up the manhood of the poor " and to provide proper sustenance and up- bringing for the children of the nation. Perhaps I should add here that up to the present I have not been able to trace any increase of price of commodities to the fixing of minimum wages. It is not the function of the Court to ascertain the truth 1 Gas Employees, 7 C.A.R. 58, 65 (1913). FOR LAW AND ORDER 35 as to the causes of increased prices, but the Cour watches for any sidelights on this important subject. In one case, I believe, a wages board raised the wages of milk carters by is. per day and the milk vendors at once raised the price of milk by id. per quart- For 100 quarts per day, this would mean an increase of receipts to the amount of 8s. 4d. per day, so that the milk vendors had raised the price of milk far beyond the amount necessary to recoup them for the additional wages. It will be asked, however, what is the net result of the Court of Conciliation ? Have strikes ceased in Australia ? The answer must be that they have not. There have been numerous strikes in Australia, as elsewhere. But since the Act came into operation there has been no strike extending " beyond the limits of any one State." Those who are old enough to recall the terrible shearers' strike and seamen's strike of the *' nineties," with their attendant losses and privations, turbulence, and violence, will realize how much ground has been gained. The strikes which still occur are strikes within a single State, and dis- putes within a single State are outside the jurisdiction of the Court. It can be safely said that, since the Act, every dispute ** extending beyond the limits of any one State" comes before the Court or the President, either on the application of parties to the dispute, or on the initiative of the officers of the Court.'- More- over, with the exception of one doubtful case, in which I was not personally concerned and do not know the full particulars, there has been no instance of an award being flouted by the employees, no instance of the employees refusing to work under an * Sec. 19. 36 A NEW PROVINCE award. There have been cases in which parties have differed in the interpretation of an award in its application to exceptional circumstances ; there have been instances of inadvertent disobedience; and these cases have sometimes come to the courts in the form of an action for a penalty. But these were cases in which the award was treated as regulating the rights of the parties, not treated as a thing to be rejected. In 191 1 Parliament entrusted to the Court another formidable function, the settling of wages, hours, and conditions of labour for Federal public servants. This function does not rest on the constitutional power to make laws for conciliation and arbitration in industrial disputes;-^ it rests on the absolute power of the Commonwealth in relation to its own servants. The public servants are allowed to group themselves in unions, " organizations," as they think fit, and to approach the Court with a plaint. It seems at first sight curious that Parliament should entrust any tribunal with a power of adjudicating on such subjects, but Parliament has been careful to retain the final control of the Commonwealth finances. For the award does not come into opera- tion till the expiration of thirty days after it has been laid before both Houses, and Parliament can, if it sees fit, pass a resolution disapproving of the award. This remarkable jurisdiction over public servants deserves a study all to itself, and I can only say, though there have been several important awards under it, no award has yet met with the disapproba- tion of Parliament and no resolution of disapproval has ever been tabled. In conclusion, I may state that I am not unaware 1 Sec. 51 (XXXV.). FOR LAW AND ORDER 37 of the far-reaching schemes, much discussed every- where, which contemplate conditions of society in which the adjustment of labour conditions between profit-makers and wage-earners may become un- necessary. Our Australian Court has nothing to do with these schemes. It has to shape its conclusions on the solid anvil of existing industrial facts, in the fulfilment of definite official responsibilities. It has the advantage, as well as the disadvantage, of being limited in its powers and its objects. Its objective is industrial peace, as between those who do the work and those who direct it. It has no duty, it has no right, to favour or to condemn any theories of social reconstruction. It neither hinders nor helps them. But it is obvious that even if all industries were to be carried on under State direction, industrial peace would be as vitally important as it is now, and that it could not be secured without recognition of the principle which the Court has adopted, that each worker must have, at the least, his essential human needs satisfied, and that among the human needs there must be included the needs of the family. Sobriety, health, efficiency, the proper rearing of the young, morality, humanity, all depend greatly on family life, and family life cannot be maintained without suitable economic conditions. The reason- ing which has lately committed to the Court the function of settling conditions of labour for public servants would not be less, would be even more applicable, if the State had more servants than it has. Yet, though the functions of the Court are definite and limited, there is opened up for idealists a very wide horizon, with, perhaps, something of the glow of a sunrise. Men accept the doom, the blessing of <" A *l *« r\ X) ■ 12 C,A.R. 277. • FOR LAW AND ORDER iig with them. The Ministers appointed a gentleman under a royal commission to inquire into the bureau system in Melbourne. It turns out now that his report was unfavourable to the abolition of the system ; but in the meantime, and without disclosing the report, the Ministers announced that the bureau system was to be abolished. There is no pretence that this abolition was effected with the consent of the other ship-owners. Then the Sydney members of the union pressed for a similar decision for Sydney ; and the Prime Minister requested the ship-owners to nominate representatives to sit on a *' tribunal" which he had decided to create " with a view to effecting a settlement of matters in dispute on similar lines to those adopted in the case of Melbourne wharf workers." Some of the ship-owners have objected, well knowing how such a tribunal, created ad hoc, would be likely to act ; and the proposal for such a tribunal has, up to the present time, miscarried. Next there is the Gas case, where the Melbourne gas employees struck work (as set out in the pre- vious part of this article) in June, igao. The Premier of Victoria was strongly pressed to create a special tribunal to decide as to the difference between what the Melbourne companies offered and what the union claimed ; but he has evidently seen the danger of allowing such " tribunals," and has refused to tread the primrose way which gives present ease and manifold and greater troubles hereafter. Apart from the unconstitutionality, the illegality, of such special tribunals (for the Crown, the Execu- tive, has no power without an Act of Parliament to create novel tribunals), the practice of creating (or 120 A NEW PROVINCE purporting to create) them is most unwise, most disastrous in its effects on industry, and on continuity in industrial operations. A special tribunal is really a device whereby the Government tries to ** save its face " when yielding to a strike. The tribunal is expected to grant the claims, just or unjust, so far as is necessary to induce the strikers to resume work- It secures present ease by encouraging further and far greater trouble. As a child who finds that the more he cries the more he gets his way, will cry the more, so with men who strike. When Parliament provides a fair and even sympathetic tribunal to con- sider grievances, the Government will not prevent but will actually induce stoppages, if it hold out the prospect of a second tribunal to supplement or super- sede the decisions of the legitimate tribunal. If a Government wanted to destroy the system of con- ciliation and arbitration, and to encourage unions to adopt the course of seeking remedies by holding up the community, it could not do so more effectually than by this practice of special tribunals. The proper course is obviously to watch and correct any defects in the legitimate tribunal ; to make access to it easy and speedy and cheap; to take away from the employees all inducement to strike, all excuse for striking ; to satisfy public opinion that for every real grievance there is a remedy on lines of reason ; and never to yield anything to force, to strike. It is evident that some people do not yet realize the importance of this great experiment, or the responsibility which rests on those who administer the Act, and, I must add, on those who interfere with its administration. It may be worth while to con- I FOR LAW AND ORDER 121 sider some figures. It appeared in the course of a case that in 1918 the interstate ships alone (apart from the overseas ships and State coastal ships) paid to waterside workers about one million pounds sterling. The rates were then increased from is. gd. to 2s. 3d. per hour ; so it may fairly be inferred that the increase of 6d. per hour would cost the interstate shipowners £285,714 per annum more at least. In another case, that of the pastoralists in 1917, some newspaper alleged that the increases in rates pre- scribed by the award involved the transfer of four million pounds per annum from the pastoralists to the employees. This statement was not verified ; no person stands sponsor for it ; but it was repeated as if gospel truth from newspaper to newspaper, from mouth to mouth. " How shocking that any Court should have such power!" But the greater the amounts involved, the greater the necessity for giving to the Court all the assistance that it needs. The truth is that the Court transfers more money and affects directly more human lives than all the ordinary Courts of Australia taken together. Assuming it to be established that the Court has greatly aided in securing the continuity of industrial operations in these troublous and critical times, that it has produced great improvements in the conditions of the workers, and that it has largely reduced to system and standardized the use of human life for industrial processes, the question yet remains, has the work of the Court any permanency for good? At this point, many generous, public-spirited theorists part company. Some of them have come to the con- 122 A NEW PROVINCE elusion that the remedy for all our industrial troubles lies in some socialistic scheme in which the whole wage system is to be abolished. Now I am far from deprecating idealism. There is no aspiration, no prayer, so ennobling as " Thy kingdom come." But though we think we see our distant objective, though we look with longing for that which is great and complete, as there float to our eager senses the *' murmurs and scents of the infinite sea," we cannot confine the course of human movement to the exact channel which we mark out for it. What is to be deprecated is the opposition of idealists to any channel towards the ocean that is not of their own selection. The water must and will take its own course. In industrial unrest, there is much more than mere wages. If the wage system could be abolished to-morrow, everywhere, if it were just and possible for the workers to get " the whole product of labour," there would still be need for regulation of the conditions under which human life — the most valuable thing in the world — is to be safeguarded from deterioration and degradation, is to get full opportunity for the full development of its powers. Where there are more wills than one, there must come collisions of will — and disputes; and even if the directors of industry were to be elected there still would be need for regulation. Regulation has come to stay. Since I wrote this article,^ the policy of the Government has been announced in Parliament. I have been left to the newspapers of July 30 for in- formation as to the policy. It is proposed in the Bills {inter alia) to create special tribunals at the will of ^ The article was completed towards the end of July, 1920. FOR LAW AND ORDER 123 the Government; and a Minister may even refer to a tribunal a question whether something that a union has failed to obtain from the Court should be granted : " O navis referent in mare te novi Fluctus . . . Nunc desiderium curaque non levis." 124 A NEW PROVINCE CHAPTER IV. Subsequent Decisions. Since Article III. was written, July, 1920, there have been several further principles established which may have a far-reaching effect. It must be borne in mind, however, that the principles are not legally binding on any deputy-president, or on any successor in the presidency, and that I alone am responsible. Reduction of Hours. In the case of the Australian Timber Workers' Union^ the Court reduced the ordinary hours from forty-eight to forty-four per week. Extra pay- ment has to be made for any overtime. Before coming to this conclusion, the Court adopted a course which is unusual, but clearly within its powers to ** inform its mind in such manner as it thinks just" Feeling that it should not prescribe forty-four hours for this industry unless it saw its way to prescribe similar hours in many other similar industries, es- pecially industries involving the tending of time- saving machines, the Court invited the federal council of employers, the chambers of manufactures, and the Trades Hall councils (of unions) to appear, and it allowed certain great undertakings and interests to be represented on their request. The Federal Govern- ment was also invited to appear as representing the general public ; but it refused the invitation. The 1 14C.A.R. 811. FOR LAW AND ORDER 125 evidence and arguments took a much longer time than all the rest of the 267 claims in the log ; but the issue at stake was worthy of all the time expended. Judgment was given on this issue on November 12, 1920, in favour of the union. Substantially it means that the workers get a " clean " eight hours' day, with half-holiday on Saturdays. Hitherto they had to purchase the half-holiday by working an extra three-quarters of an hour on five days, and an extra quarter on Saturday ; and this meant that they had to rise, breakfast, travel, and start work at the mill or shop (usually) at 7.30 a.m. in winter as well as in summer. It is impossible to set out here all the con- siderations which influenced the Court ; they can be found in reports for the year 1920 (vol. xiv.). But the Court refused to accept the argument for the union to the effect that hours should be lowered because thereby more men would have to be employed; it treated relief from the bane of unemployment on such a ground as illusory. At the same time, the fact that the employers might have to employ more men or to pay extra rates for overtime, was not a valid ground for refusing to reduce the hours if the reduction were otherwise just and expedient. The Court was much assisted by the recent scientific studies of Miss Goldmark, Dr. Vernon, and others as to fatigue and efficiency, and by the consideration that the workers' time and vitality should not be all consumed in their task of breadwinning. The same ordinary hours have since been applied in the case of the Amalgamated Society of Engineers,^ and in other cases. ^ Amalgamated Society of Engineers, 15 C.A.R. 126 A NEW PROVINCE Increase of Secondary Wage. In the dispute between the Merchant Service Guild and shipowners in igi6, as well as in other cases during the war, the Court had, in fixing the minimum wages for skilled workers, added to the basic wage as increased by the increased cost of living the mere amount of the previous secondary wage for training and skill. That is to say, the basic wage was increased from £iio to ;£'i6i, by reason of the decrease in the purchasing power of money ; but the ^f 40 per annum, which had been treated as the proper secondary wage of junior officers in 1907 and 191 1, was merely added, without increase, to the basic wage (see Chapter III.)- But the Court then said : " It may be urged that, in the absence of evidence to the contrary, the decrease in the value of the sovereign must be treated as applying to all the com- modities required by a man in the position of an officer as well as to the commodities required for a family's support on a labourer's standard of living; and it is quite true that the pressure of social forces makes the extra expenditure for the officer almost as essential for him as the labourer's expenditure for the labourer. But the fact remains that it is not so absolutely essential ; and in a time of violent disturbances in prices such as the present, in a time when war has combined with the drought of 1914-15 to produce the rather alarming figures for 1915 on which I have to act, I do not think it advisable, in framing an award for three or five years to come, to push matters to an extreme."^ The promise to be implied from this judgment was fulfilled in September, 1920 ; for the employers 1 Merchant Service Guild, 10 CA.R. ^14, 226. FOR LAW AND ORDER 127 produced no evidence tending to show that the industry could not bear the increase : ** The war is over ; and although we cannot be said to have reached the desired haven in all respects, it would not be fair to withhold from these trained men their proper secondary wage for ever. . . . The re- sult is that if the accepted margin between the basic wage and the junior officer's wage is to be restored to the officer, his pay should not be, in round figures, ;^i8 los. per month. I mean, of course, the true wage as represented by the commodities which the money paid will purchase. . . . The proper margin must be restored if we are to keep up a succession of trained men for the merchant service, and if we are even to keep our men in Australia.^ The last words refer to the attractive terms offered in America in order to get qualified men for the new American merchant service, and in Britain in order to refill the British Service. Machinists and Tradesmen. The subject of the relation of machinists to trades- men would merit a treatise for itself. In the recent case of the Amalgamated Society of Engineers,^ it was raised in an acute, though not quite consistent, form. The Court was asked to prescribe the same rates for most kinds of the machine operatives as for full tradesmen such as fitters and turners ; but a lower rate was claimed for such machinists as drillers, nut and bolt makers, etc. The Court put the position thus: ** In recent years, the work done by fitters and turners (in particular) has been greatly aided in out- 1 Merchant Service Guild, 14 C.A.R. =• Engineers, 15 C.A.R. 128 A NEW PROVINCE put, in speed, and in finish by divers ingenious machines worked by " machinists " — " operatives " — men not having the full craftsman's training, but placed by the employer, as to pay and position, somewhere between the tradesman and the labourer. These machinists are largely collected from trades- men's assistants, or from labourers, or from lads who go to the works straight from school. By confining their energies to some "one particular machine, they attain exceptional speed. The employer gets a greater output, and yet the machinists are generally paid less than the fitter." It was admitted by employers that work to be done with the machine was work which, but for the machines, would have to be done by the craftsman with the old tools — hammer, chisel, vice, etc. — that to be a good fitter or turner a man should be able to work almost all the appropriate machines ; and that, if an employer had to pay the same rate to a machinist as to a fitter, he would employ a fitter, as there are contingencies in which a fitter's training is of use. Instances were given of lads put on to a drilling machine at the age of fifteen or sixteen, and being kept to drilling holes only — getting no other employ- ment in engineering shops during all their working life than that of drilling — because they can give more speed than others at drilling. Capacity for speed is, in itself, a kind of skill. The Court took the view that to prescribe lower wages for the mere machinist was to put pressure on the employer to choose the man who gets the lower wages, was " loading the dice " against the craftsman, and that the best way to discourage the manufacture of imperfect trades- men, to prevent slavery to the machine, to develop full manhood, was to prescribe the same minimum FOR LAW AND ORDER 129 rate for the machinist as for the full tradesman. The practice in the United States and (to some extent) in Great Britain supported this course. On this line of reasoning the fitter's wage was prescribed for planers, shapers, slotters, etc. Weekly Hiring. In the case of the timber workers* and in the subsequent case of the engineers^ the Court, as requested by the unions, prescribed weekly wages. The practice, as to the engineers, had always been to pay for the hours of actual work only ; so that if the man's work stopped for lack of material, or for a breakdown, or for illness, or for any other cause, his wages stopped. If he lost an hour's work — even five minutes' work in some cases — he lost his pay for the time. The Court had often expressed itself in favour of weekly wages, where practicable; and as the employment of engineers is regular, not casual, and fairly permanent, the case seemed to be eminently suitable for weekly wages. " There is nothing that steady family men desire more than constant work and some certainty as to their income for a week or more ahead. . . . Under weekly wages the employee tends to identify himself with the particular undertaking, to feel interested in the concern ; and it takes much more to induce him to throw up a job if it is constant. It is in the interest of the employers, as well as in the interest of employees, that the employment should not be casual, that a man should not feel himself to be a piece of flotsam or jetsam in the industry, that he should have a sense of homeship in the concern. Moreover the wages prescribed will be less." * Timber Workers, 14 C.A.R. * Engineers, 15 C.A.R. 9 130 A NEW PROVINCE The Court's practice is to prescribe higher rates per hour or per day where the employment is casual or intermittent. " The chief objection is, of course, that if the employees do not suffer the loss of an hour's pay for an hour's absence the inducement to be punctual and regular is taken away. Of course the employer will have power to discharge the employee on notice, or in the case of wilful misconduct to dismiss him forth- with, without paying him for the part of the week served ; but in dismissing certain employees the employer may be rather punishing himself. For instance, roll-turners are essential for the steel works at Waratah ; but they are very scarce, and they cannot be replaced by others, Mr. E., one of the union officials, assures me that the men would not take advantage of the weekly tenure by greater irregularity of attendance; that they would feel more bound in honour to attend, as the whole loss of the non-attendance would fall on the employer. I shall not, until the experiment be tried, treat this sentiment of honour as a thing to be scorned. More- over the same official tells me that if absences are more frequent under the weekly wage than under the hourly he thinks that the Court would be justified in varying the award." ^ The Court, in prescribing the weekly pay, allowed a deduction for absence without reasonable cause ; and any difference of opinion between employer and employee as to reasonable cause has to be settled either by the written concurrence of the employer and the union official or by the board of reference. ^ Engineers, 15 C.A.R. FOR LAW AND ORDER 131 Piecework. I find in the New Statesman of April 23 last a curious statement, made from Australia, that the Court — or rather myself — " practically ignored the relation of wages to output." I do not know how the able writer of the article got such an impression, unless it be from the fact that in the shipbuilding case* I decided that the Government was wrong in excluding from employment the members of a union — the Amalgamated Society of Engineers — unless the union agreed to submit to piecework if required. The work to be done in that case was wholly un- suited for piecework rates. There was practically no repetition work ; and the skilled managers of the shipbuilding scheme said they would not dream of putting the men on piecework. The facts are stated in Chapter III. On the other hand, I refused to interfere with piecework rates in the case of coal lumpers in Melbourne,^ and I refused to prohibit piecework in the case of coopers.^ This very year, in the general case of the engineers,"* I refused a claim to prohibit absolutely piecework, premium, bonus, etc. ; but in view of the intensely bitter feeling of the engineers against such systems — a feeling engendered by abuses in Britain — I prescribed that the piecework rates and conditions must be approved by the union or by the appropriate board of refer- ence. Some of the men said they would consent to piecework, said they were willing to have piecework "if the men had some say"; and I gave them "a 1 Shipbuilding Engineers, 12 C.A.R. 386. * Waterside Workers, 13 C.A.R. 615. 3 Coopers, 12 C.A.R. 443. * 15 C.A.R. 132 A NEW PROVINCE say." It is only just. Otherwise the employer or his foreman states a price, and it is a case of " take it or leave it." As Mr. Sidney Webb has pointed out, the man has to bargain individually, without the protection of his union, and the bargain is not free and equal. The men have found that the greater their output the greater is the cutting of the rates for the same or similar operations thereafter. Some ghastly instances of such shortsighted parsimony were proved. The moral effect also has to be con- sidered on men who, but for the greed and strain of piecework and its congeners, would be good com- rades. One leading engineer has spoken of them as ** the various systems that make honest men thieves and gluttons and enemies out of shop-mates." But in the making of articles, as distinguished from the repairing, the employers are in competition with other countries ; and the more speed, the greater out- put, the less the price at which the employers can supply the public. Since the establishment of the steel works in the Newcastle district a number of ancillary industries have been started for various steel products. There is plenty of ironstone, and in the Newcastle district plenty of coal and flux. If the cost can be kept down it is quite possible that with up-to-date machinery and equipment (at present most Australian undertakings are defective in this respect), and with proper organization, the Newcastle district may become the main source of supply of engineering products for the countries around the Pacific and for South Africa. But the position which I had to face was largely psychological, and there was no hope of getting engineers to accept piecework even where it is necessary — say, in the making of FOR LAW AND ORDER 133 brass cocks or the fitting up of meters — unless the autocratic powers of the employers as to rates be put under reasonable restraint. There is no hope of piecework without such restraint. Apprentices and Boy Labour. The Court attaches more importance than ever to the need for full training to the full craft. It dis- countenances the deadly system of " improvers " which has been permitted in certain States — " im- provers " who are kept on mere repetition work, who learn how to work at great speed one, or perhaps two, machines, and become unfitted for anything else. The country needs fully trained craftsmen, and the lads need to learn their job all round. There has been much abuse of boy labour. Impecunious parents have been tempted to sacrifice their boys' careers by higher wages offered to " improvers " (at the beginning) than to apprentices. But there is abuse even when lads are duly apprenticed if too many apprentices are allowed. The Court therefore, unwillingly in the engineers' case,^ limited appren- tices to one apprentice to three journeymen. One to three is the recommendation of the New South Wales Board of Trade Committee, and it is pre- scribed in the Queensland award for the Queensland railways. It gives a liberal allowance to provide a perpetual succession of competent tradesmen. But the proportion may be varied, as to any particular employer, with the consent of the union or of the board of reference. It remains to be seen whether this provision will be successful in giving the needed flexibility. 1 15 C.A,R, 134 A NEW PROVINCE The Court also granted a claim that apprentices get four hours per week in the employer's time for attendance at a technical school or (if no technical school) for work with an approved correspondence school. Certain of the more liberal employers already grant this privilege or more. The Court has also granted the claim for journey- men's overtime rates to be paid to apprentices when they work overtime. It would have gladly forbidden overtime altogether for boys beyond eight hours in the day. It is easy to understand the injury done to growing lads by excessive hours of work. It has to be remembered that in addition to eight hours' work in the factory they have to attend the technical school also and to attend drills for compulsory training under the Defence Act. The New South Wales Parliament twenty years ago forbade over- time for lads, and several employers concurred in the view that the lads should not be called on to work at night at all; but the Court cannot award anything which is not within the ambit of the dis- pute. The union frankly said that the claim for journeymen's overtime rates was meant to prohibit all overtime for lads ; and yet I find that space is given by a newspaper to some unnamed employer to complain of the Court's unwise action on the ground that " as a father " he knows that so much money is really not good for the lads ! It does not seem to have occurred to him, as a father, that lads may suffer from excessive hours of work. FOR LAW AND ORDER 135 The Basic Wage. In Chapter III. I referred to the fact that a " basic wage commission " had been appointed by the Federal Government. The need for an inquiry as to the present cost of Hving had been urged by the Deputy President, as well as by myself, in our judgment ; and I had suggested that the function of ascertaining the cost, on alternative regimens stated by the Court for unskilled labourers and as for speci- fied districts, should be committed to the Statis- tician, with all his experience and facilities and his cool, scientific, impartial attitude. But the Govern- ment saw fit to commit the work to representatives of employers and employees, chosen by itself, with a neutral chairman. Unfortunately, under the main question as put, the commission had to find, not a basic wage as hitherto well understood by the com- munity, not the necessary wage for an unskilled labourer, but " the actual cost of living at the present time, according to reasonable standards of comfort, in- cluding all matter comprised in the ordinary ex- penditure of a household, for a man and his wife and three children under fourteen years of age, and the several items and amounts which make up that cost." It will be observed that under this form of words the vital matter on which the report would turn was the " reasonable standards of comfort " — reasonable in the opinion of the commission ; and no distinction was to be made between what is reasonable for a porter and for a pattern-maker, for a messenger and for a millionaire. The report of the commission, November, 1920, was, as might have been expected, 136 A NEW PROVINCE a cost of living which was far in excess of the basic wage on which the Court had been acting, in ac- cordance with the rough estimate of 1907. The report found ,^5 i6s. 6d. per week (for Melbourne), but it did not recommend that such a basic wage should be enforced. That is to say, if the report were to be carried out in practice a man could not be employed even in sweeping a yard or in running on messages unless he were paid £s i6s. 6d. per week. For the commissioners, on carefully scanning the question put, naturally thought that it was not their duty " to discriminate between the standard reasonable for one type of employee and that which is reasonable for another type." The result of the report has been disastrous. The Commonwealth Statistician has reported that the whole produced wealth of the country, including profits, would not be sufficient to pay such a wage ; and yet many of the unions have combined to press for the wage as if it were a true basic wage. In the case of the engineers ^ the Court did not hesitate in refusing to act on such finding, and it intimated its intention to act on its rough estimate of 1907 (as increased to meet the decreased purchasing power of money) and until a more satisfactory standard can be found. But out of the general confusion which has fol- lowed the report there has emerged a suggestion which is worthy of consideration. Our basic wage, as is well known, includes provision for a man, wife, and " about three " dependent children, and it has to be paid to a man who is unmarried, or who is childless though married, or who has more than three dependent children. The object of this uni- 1 15 C.A.R. FOR LAW AND ORDER 137 formity is obvious ; the employer, in choosing an employee, should not be driven to concern himself with the man's domestic affairs or tempted to choose men who have no children or few children in prefer- ence to men who have many. The course adopted by the Court seems to be the best practicable under existing circumstances, as marriage is one of the normal needs of a man in a civilized community. The basic wage should include some reasonable allowance for family life and children. It is not in the interest of society that the practice of advertising for men with "no encumbrances" — a practice not uncommon already — should become general. But if the State, or States, should see a way to provide for a subvention in aid of each child, whether the money is to come from the Treasury or from a tax on employers, the position would be greatly changed. I observe that Mr. Seebohm Rowntree, in his in- teresting book, " The Human Needs of Labour," has suggested for Britain a State grant for any children above three in number (pp. 141- 143). The New South Wales Government has approved of a Mother- hood Endowment Bill, under which parents would receive a payment of 6s. per week on account of each child in excess of two (for two children,- not three, are taken into the computation of the basic wage by the New South Wales Board of Trade). In Australia there may be constitutional difficulties in the way of such a subvention from the Federal Treasury, and the States may not all concur in providing it. It may be urged with force that the burden of the pro- vision should not be thrown on the employers by special taxation, as the country as a whole is in- terested, not the employers only, in the proper 138 A NEW PROVINCE maintenance of children and in the growth of popu- lation. The whole subject calls for careful con- sideration, and hardly falls within the scope of this work. I merely mention it because it is obvious that the basic wage payable by the employer may, with such a subvention, be reduced so as to cover the normal expenditure for the man, or for the man and his wife alone. In the meantime, until such a pro- vision be made, the only course open to the Court seems to be to follow its existing practice, making the basic wage sufficient to cover a reasonable allowance for dependent children. Standard Conditions. In Chapter III. I referred to the fact that employers are beginning to recognize the advantages derived from the existence of an impartial tribunal, so far as it reduces to system and order the conditions under which human life can be used for the purposes of industry ; and to the fact that certain great under- takings have agreed to vary the rates of wages from time to time according to the system adopted by the Court. I am happy to be able to state that such agreements are now very numerous. Sometimes the agreement is made in settlement of a dispute, without the aid of the Court ; and such agreement, when iiled, is deemed to be an award. But sometimes the agreement is made without reference to any specific dispute, so as to provide an automatic adjustment of wages on the basis of the Statistician's figures and of the Court's practice. Agreements are made even as to hours and conditions other than wages in the light of previous pronouncements of the Court. Moreover, when timework rates are settled by the Court, the FOR LAW AND ORDER 139 parties seem to be able to settle piecework rates, taking the timework wages as the basis. Even the limits of weights to be carried or handled, or moved on trucks, as prescribed by the Court in one industry, are generally accepted throughout Australia. Readers will understand now the importance which, in the articles, I have attached to the " standardizing of conditions." Often the plaint contains hundreds of complicated claims, with subdivisions, and the Court is asked to decide two or three points only which are fundamental. The parties agree to the rest, knowing from the decision in previous cases the principles on which the Court is likely to act. Settled standards are impossible under what is misnamed " freedom of contract," when the employer is " free " to give or not to give employment to the applicant, and the applicant is " free " to choose between unfair or even dangerous conditions and an empty larder; and when employers disposed to be liberal are forced to adopt the illiberal ways of competitors. We have already standards set by Parliament, or under its legislation, for ventilation, for safety from machinery, for sanitary arrangements. These standards are enforced what- ever the effect on finances, on the profits of the under- taking or of the industry as a whole. Standards, if properly established, prevent much industrial friction, conduce to contentment, are an incalculable saving of time and energy. Even in the Court the discussions tend to diminish in length. Some persons, seeing only what the Court awards, have the notion that the Court's proceedings are confined to compulsory awards, resisted awards. The truth is that in con- sequence of the Court's settled standards there is now more of agreement than of compulsory order, more 140 A NEW PROVINCE of conciliation than of arbitration. It is due to an unfortunate ignorance, an ignorance arising from failure to study the Court's doings, that we sometimes find leader-writers speaking of the Court as putting employers and employees in hostile arrays. They are in hostile arrays already, Court or no Court ; but the Court brings them together as round a table, and compels them, in each array, to consider each other's difficulties, and to deal with proposals on lines of reason rather than force, of right rather than might. Very often reasonable employers grant conditions such as they would willingly grant but that their rivals or competitors would not, without the influence of the Court, follow the same standards. But if the recent practice of creating special tribunals should continue — tribunals of emergency, of panic, created for the purpose of avoiding or terminating a stoppage of operations at any cost — tribunals not in any way co-ordinated with the permanent Court — the advant- ages of the definite standards will be lost or much diminished. Effects on Industry. But when wages are increased or conditions are imposed, they involve expense ; and there is a limit to the expenditure which an industry can bear. The expenditure must be kept under the income, or the business will not be carried on for any long time. The practice of the Court has been to find what award would be fair on the assumption that the industry can stand it, and then to let the employers show, if they can, that the industry cannot stand it. By the " industry " I do not mean a particular under- taking ; for the undertaking may be carried on with- FOR LAW AND ORDER 141 out proper equipment, or with slovenly organization. The Court is very chary of prescribing any wage lower than the proper basic wage ; but " there is no such necessary rigidity about the secondary wage." In the case of the engineers,^ as there are so many highly skilled workers, the secondary wage is a matter of much importance, but although the rates of pay as affected by the secondary wage were keenly con- tested, there was no evidence whatever submitted to the Court by the employers to establish that they should not be called upon to pay such secondary wages as should be found to be just. No evidence was tendered to show the Court any analysis of costs in relation to prices, of the effects of wages or the proposed increase of wages on the price that could be charged. It is well known that the ratio of the wages cost to the cost of material varies very much with different commodities. No evidence on this important subject was put before the Court by any respondent — if I except the irrelevant case of a copper- mining company which had already ceased production owing to the fall in the price of copper. Even when the advocate for the union, in cross-examination, asked an employer what charge he made for lathe work (turner's work), the employer indignantly ob- jected to answer. Speaking, as he did, in the presence of competitors, there might be an objection on his part to disclose in public details of his business, and I therefore offered him an opportunity to give me the information in private (under Sec. 85) ; but he still objected, and I did not see fit to compel an answer. The only thing worthy of notice is that the employers did not seek to prove to the Court that 1 Engineers, 15 C.A.R. 142 A NEW PROVINCE the industry could not pay the rates, and the fact was so stated in the judgment. Notwithstanding these facts, a daily newspaper of wide circulation accepted from certain of the employers (mostly unnamed) statements to the effect that the award was closing up their under- takings, that they could not compete with imports from abroad, that they were compelled to discharge employees, etc. The public of Australia are more dependent on the daily press for information than the public of any other country in the world ; and the public would not see the Court's judgment. Probably, thinking people would discount these statements as being one-sided, and would attach more value to the findings of the Court which had heard both sides ; but all the people are not thinking. There should be no objection to criticism — even rough criticism — of what a Court may do or say. Personally, I take a strong view as to the transcendent importance of freedom of expression of opinion — the importance of toleration for opinions which we do not favour. From the nature of its business, the daily press of Australia is almost wholly on the side of the employing class; and it has frequently impugned the Court's action. But the frequent hostility of the press has rather helped the Court than hindered it in its influence on the other class. It is a delicate matter to speak about ; but as I am now leaving the presidency of the Court, I feel free to say that for a newspaper to publish such statements as these without dates and particulars, without verifica- tion, without examining even what the Court has said on the subject, without (in most cases) insisting on the publication of the names of those who will FOR LAW AND ORDER 143 take the responsibility for the statement, is unfair to the public and injurious to its interests. The writer of the article in the New Statesman to which I have already referred has fallen into an in- accuracy as to the attitude of the Court with respect to the effect of wages on the industry. He says that I " deliberately refused to consider in fixing wages the rates which the industry could bear." This statement is very nearly true as to the basic rate — the rate necessary for decent human subsistence, the living rate. But the Court at an early date — in 1909, in the Broken Hillcase^ — differentiated on this subject between the basic wage and the secondary wage : " The remuneration of the employee cannot be allowed to depend on the profits made by his indivi- dual employer. This proposition does not mean that the possible profits or returns of the industry as a whole are never to be taken into account in settling the wages. So long as every employee gets a living wage, I can well understand that workmen of skill might consent to work in such a case for less than their proper wages, not only to get present employ- ment, but in order to assist an enterprise which will afford them and their comrades more opportunities for employment hereafter. For this purpose, it is advisable to make the demarcation as clear and as definite as possible between that part of the wages which is for mere living, and that part of the wages which is due to skill, or to monopoly, or to other considerations. Unless great multitudes of people are to be irretrievably injured in themselves and in their families, unless society is to be perpetually in industrial unrest, it is necessary to keep this living wage as a thing sacrosanct, beyond the reach of 1 3 C.A.R. 144 A NEW PROVINCE bargaining. But where the skilled worker has secured a living wage, he has attained nearly to a contractual level with the employer, and, with caution, bargaining may be allowed to operate." To get a reduction of the secondary wage, how- ever, the employers must condescend to give specific evidence, detailed evidence ; generalities and vague phrases will not avail. The evidence can be withheld from all but the Court, if so desired. FOR LAW AND ORDER 145 CHAPTER V. The Future of Industrial Tribunals. The article in the New Statesman to which I have already referred says, speaking of this Court : " Wage regulation as an experiment has been well justified. It has been shown that wages can be raised by artificial action. But certain reactions and difficulties have arisen which, though difficult to cope with, should not be beyond the power of wise and reasonable statesmanship. It is this quality that has been lacking." \ To my mind, these words state the position cor- rectly in substance. We hear no more, of course, of the "wage fund," or that what one worker gains must be taken from another worker. We hear little now of the " inexorable laws of demand and supply," which used to be treated as more inexorable even than gravitation, less capable of counteraction even than gravitation. Minimum wage laws of a kind are to be found now in most civilized countries. It used to be said dogmatically that tribunals for industrial disputes were absurd and impracticable, because there would be no principles to guide the tribunals. A Court of Law has to obey Acts of Parliament or the Common Law, but what principle was an industrial tribunal to obey ? The employer is as much within his rights in offering los. per day as the employee is within his rights in refusing to take employment for less than 12s. 146 A NEW PROVINCE Well, the experiment has been tried, and principles and standards have been evolved with the general approval of a nation which calls for production, but production with proper treatment of the producers ; and the principles and standards have stood many a test, have in the main become embedded firmly in the nation's life and activities. From the nature of the case, the awards — or collective agreements made under the influence of the Court — operate more a-s a restraint on employers than on employees. It is the workers who usually take the initiative, seeking what they assert to be right as against might. The con- tract of employment, if not regulated, is dictated by the stronger party — usually the employer. The result is that employees press more and more into the Court, form more and more federated unions, with the object of getting the Court's assistance. Some of the documents set out in the Appendix show the great value which the unions ^generally attach to the Court. The number of federal logs of claims increases year after year, and the annual volume of reports of cases becomes bulkier. There are only two unions that, so far as I know, disclaim the assistance of the Court — the coal miners and the seamen ; these unions, seemingly, prefer to squeeze the Government and the country rather than to rest on the justice of their claims. In Chapter II. I have given the history of the strike of the coal miners, and in Chapter III. the history of the strike of the seamen, and I do not want to repeat myself. The reasons which influenced the Whitley Com- ^ The seamen, however, have recently, in two distinct pro- ceedings, appealed to the Court for its assistance. FOR LAW AND ORDER 147 mittee in England to report against the adoption of compulsory arbitration are inapplicable to the com- pulsory arbitration of the Australian Court. "There is no reason," the Report says, " to believe that such a system is generally desired by employers and employed, and in the absence of such general accept- ance it is obvious that its imposition would lead to unrest. The experience of compulsory arbitration during the War has shown that it is not a successful method of avoiding strikes, and in normal times it would undoubtedly prove even less successful." But in Australia many strikes and stoppages have admittedly been averted owing to the fact of the existence of this Court as well as of State Courts, and because the employees felt that they had some hope of redress, in times of rising prices, through the Court's machinery. Actual experiment has shown to the Australian workers that the Court is not a " Capitalistic device," and that it does not act so as to compel the workers to accept work at the minimum rates prescribed. It does not conduce to a " servile State." . I do not deny that Australian unions, or, at least, individual members thereof, are influenced in the unrest of these abnormal times by the theories which are afloat everywhere as to a completely new social order. " The abolition of the wage system " often appears as one of the objectives in union rules, and the right of the workers to " the whole product of the industry " is frequently asserted. We hear much of Marx and his principles, as expressed by conflict- ing schools of Marxians, and various socialistic or communistic schemes are favoured. It is evident also that the action (alleged and believed) of the 148 A NEW PROVINCE Allied Governments in giving assistance to counter- revolutionaries in Russia, in blockading Russia, and in preventing news from coming from Russia, has had a very bad effect here as elsewhere. But what- ever theories the workers may favour for the ultimate solution of the industrial riddle, they know that in the meantime men and families must be fed and clothed and housed, and that the Court offers the best means available for securing redress for griev- ances. They know full well that they never could gain by strikes or by purely voluntary agreement — agreements made without compulsory arbitral power at the back — nearly so many concessions as they secure by means of peaceful discussion before the Court. " Socialism in our time." Perhaps so ; but which brand of socialism ? The morrow's breakfast is of more immediate concern than the millennium. Where there is a prospect, as in Australia, of obtaining relief without losing one's job and its pay, the rank and file of the union, as well as the union's re- sponsible leaders, have a solid argument for use in the union meetings against strikes ; and the women of the homes reinforce the argument with the appeal, "Try the Courts first." People talk of the psycho- logy of the worker, but the central fact affecting the psychology is to be found in Browning's lines : " Such eyes I saw that craved the light alone, Such mouths that wanted bread and nothing else, Such hands that supplicated handiwork. Men with the wives, and women with the babes, Yet all these pleading just to live, not die." We cannot forecast the future. I do not presume to advocate any of the modern industrial theories put forward by many earnest, clever, suggestive FOR LAW AND ORDER 149 writers in these days ; nor do I propound any dis- tinctive theory of my own as a cure-all. I am fully aware that any interest which may attach to this little work will be due to the fact that it deals with actual experiences of the writer, acquired in the course of discharging official responsibilities, and not to any theories which he may have personally formed as to society. Such theories had better be left for a treatise of a different character. But may I be for- given for saying that the great social changes of the world — I do not refer to political changes, but to changes which go to the root of custom, of habit, of everyday relations — have never, so far as I know, taken place in pursuance of any Utopian theory applied in practice. As Marx himself has said : " Man makes his own history, but he does not make it out of whole cloth ; he does not make it out of conditions chosen by himself, but out of such as he finds close at hand. The traditions of all past generations weigh like an Alp on the brain of the living."^ Abuses are painfully removed or reformed in detail; and when the old arrangements do not fit the new conditions they are eliminated as a foreign body from the flesh (as it were) of society, but slowly and with inflammation. That which has become useless to society, unreal in its new conditions, passes away, but very gradually. As with slavery, as with feudal- ism, so probably with modern industrialism. The very fact of universal industrial unrest seems to show that the industrial conditions have ceased to fit mankind. As slavery passed into serfdom, the rights of the lord becoming limited by law or custom ; as serfdom ^ " Eighteenth Brumaire," p. 9. I quote from Mr. Portus's " Marx and Modern Thought." 150 A NEW PROVINCE passed into the contractual relation, where the con- tract is practically dictated by the employer, who has the tools and the capital ; so the contract of em- ployment is being gradually regulated by or under the State in the interest of the community. It may be the function of our times to fix the regulations governing the use of human life in industry. Ideal- ists may see in our age the mission of John the Baptist : " Prepare ye the way of the Lord, make His paths straight." Who knows but that some day workers may not employ capital, instead of capital- ists employing the workers ; or that Mr. Webb's idea of a social Parliament in addition to a political Parliament may not be carried out ? But in the meantime, even as the extension of the King's peace over the land led to the suppression of private wars among the barons and great men of feudal times, so the extension of the nation's power to industrial conflicts will suppress, we may hope, the private wars between great employers and great unions. The King's writ must run within the factory as well as without, and as to any injurious treatment of the King's subjects engaged in industry. Just as employers have to obey regulations prescribing a minimum of safety, a minimum of ventilation, a minimum of sanitary arrangements, and whether the regulations interfere with profits or not, so they will have to obey laws which prescribe a minimum of sustenance for the human lives under their control, and a maximum of hours and fair conditions. But how is the minimum of sustenance to be settled ? It cannot be settled either by the party who uses the labour or by the party who labours ; nor can it be settled by both, as both may combine FOR LAW AND ORDER 151 (as they have sometimes combined) against the con- suming public. It must be settled by or under a neutral authority. It seems that whatever scheme of social polity we may favour, we are compelled to ascertain the proper remuneration. Even guild socialists, such as Mr. G. D. H. Cole, who favour the abolition of " wagery," and the substitution of guilds of producers of given commodities, have to come back to the problem, What is proper remuneration ? When it is pointed out that such a guild, with its monopoly, could exploit the consumers, could raise the price of the commodity at its will, the answer of Mr. Cole is that anything demanded by the guild over and above what is necessary to pay a proper remuneration to its members should be taken in taxation for the benefit of the whole community. To ascertain what is proper remuneration for each worker, or each kind of worker, there must be some machinery organized ; and those who work the machinery must be independent of both sides : " Neither beg nor fear Their favour nor their hate." Inasmuch as I am now relieved of the responsibility for the further doings of the Commonwealth Court, I feel that I may now speak more freely than as President ; and the public of Australia are entitled to know my opinions and to attribute such value to them as they think fit. I should like it to be dis- tinctly understood that my resignation is not in any way due to any lack of faith in the utility of the Court to the public. I say deliberately, and after much thought, that, in my opinion, the system of conciliation and arbitration under the Commonwealth Act is, in essence, sound and beneficial to the com- 152 A NEW PROVINCE munity ; and that with proper amendments (including amendments of the Constitution), and if the Govern- ment and ParHament act with common sense, it can be made to yield even richer results. Where two great bodies of men differ and will not yield one to the other, and yet do not want to resort to force, there is no device that I know better than that of the impartial arbitrator. This the Commonwealth Act gives. It is true that the responsibility placed on the President or Deputy President is very great — greater as to amounts of money involved, and greater in direct effects on human lives, than that of all the ordinary civil Courts. It is true that he is empowered to dictate terms of employment compulsorily — prac- tically, to compel the parties to make a collective agreement — if he cannot, under his power of concilia- tion, secure a voluntary agreement. It is true that he is necessarily unfamiliar with the several industries with which he has to deal, and there has been much talk in certain quarters to the effect that men engaged in an industry know better than any man not engaged in it the " intricacies " of the industry, the " details " of the industry. This talk overlooks the fact (i) that there is no arbitration, no dictation from an outsider under the Act, unless the parties to the dispute fail to agree; (2) that if nothing can be done without voluntary agreement the party having the stronger strategic position at the time always carries his way, dictates the terms to the other. But there is a third fact also — that these disputes do not relate to the "intricacies" or "details" of the industry at all. The disputes turn on the proper limitation to the use of human life — the use of the most valuable asset of the I FOR LAW AND ORDER 153 nation, the treatment in industry of the object of all public activities — man ; and for the determination of the proper limitations one who is outside the industry is as competent as one who is inside. With the view of meeting any case in which the dispute might involve technical knowledge Sec. 35 of the Act was enacted. It compels the Court to appoint assessors " for the purpose of advising it in relation to the dispute," if any one of the numerous parties to the dispute so desire ; but it is significant that never in the long histor}^' of the Court until November or December, 1920 — after my announcement of intention to resign — has there been any application for assessors. No doubt the parties felt that assessors would be futile. According to the Section, they would have to be chosen, one from the class of employers, one from the class of employees ; and from the nature of the position they would become hot partisans. The President would have to decide ultimately, but after a greater expenditure of time and labour than if he sat alone. The issues of wages, hours, and other conditions are not dependent on craft knowledge. There are no disputes as to the methods used in moulding, or as to the manner of riveting. Some- times, indeed, the Court has been called on to decide such a question as the number of retorts that a stoker should be called on to charge and discharge in his shift ; but the Court has refused to lay down any rule on the subject applicable to all the undertakings. It has, however, committed the function to experts, to the boards of reference, who will have regard to the particular undertakings and the nature of the plant and appliances. The Court adheres to propositions 30 to 33 as stated in Chapter I. (p. 13) : " The Court 154 A NEW PROVINCE leaves every employer free to carry on the business on his own system . . . free to put the utmost pressure on anything and everything except human life." Under the circumstances, the experiment of indus- trial tribunals is not likely to be abandoned. The fact that until near the close of igi6 there was not any general strike or stoppage of work in aid of any dispute with which the Court was competent to deal ; the fact that the strike of 1916 was the strike of the coal miners — essentially a political strike, because the Government was urging conscription for the war; the fact that the seamen's strike of igig was due to the revolutionary dogmas of a few non-Australian leaders, and that the other seafaring strikes were due to the mishandling of the seamen's strike by the Government ; the fact that nearly all the unions crave the assistance of the Court, and urge the extension of its powers; the fact that standards have been created and principles established on which the industries needed by the community are carried on without stoppages ; the fact that no industry (so far as is known) has ceased because of any award ; the fact that none of the three parties in the Common- wealth puts forward in its programme the abolition of arbitration ; the fact that the Court is more than ever in request after the fiery ordeal of war, and not- withstanding the world unrest in industrial matters — these facts point to the conclusion that the Court is meeting a real public need, and will continue. It matters little that presidents pass — and perhaps governments, perhaps parliaments; so far as Australia is concerned, and notwithstanding all the defects of the Act and of the Constitution — and of presidents — FOR LAW AND ORDER 155 the people cling to the system of industrial tribunals. It is necessary, however, as intimated in Chapter III., that the State tribunals be co-ordinated with the Commonwealth tribunals. We cannot leave the State and the Commonwealth dealing with the same subject independently at the same time. It would be well, in my opinion, to amend the Constitution by com- mitting to the Commonwealth Parliament the whole subject of industrial relations, and to let that Parlia- ment organize a co-ordinated system of tribunals local and general. It is a grievous wrong to those who have the responsibility of carrying on business undertakings that they should have to obey at the same time, on the same subject, two distinct authori- ties. State and Federal. If there is to be regulation (and there must be) it should come from one authority. What, after all, is the goal of all efforts with regard to industries ? It is surely to get ample production, the best product, and the best producers ; the other matters are non-essential. The product must be the best in quality as well as ample in quantity; the producers must be best in spirit as well as best in body, but there cannot be improvement in spirit without ample sustenance for the body, and freedom from carking anxieties as to livelihood. The com- munity wants for its industries workers who find satisfaction for their human nature in their work; and they cannot find this if they are merely irre- sponsible wage-earners. At present the workers feel no responsibility for the success of the industry ; they take all they can get, and have no concern as to the results. They do not generally find self-expression in their work or any joy of creation. One class is astrain for profit-making, to keep down expenses, 156 A NEW PROVINCE including wages and expenditure for the wage- earners' benefit ; the other class is astrain for demands which increase the expenses, and yet feels no responsibility for the industry itself. In this sense there is a real class war and a real danger. How is interest in the work, responsibility for the result, to be fostered ? It is a psychological problem, and I see no answer to it but to give the workers " a say " as to what they produce and how they produce. Unless I mistake, it was Ireton who, at the constitu- tional discussion in Cromwell's time, said that if the right to vote be given to all, the right to bread must follow. Perhaps it is not too much to say that the right to vote on national subjects must be followed by some right to vote on industrial subjects — subjects which are even more intimately connected with daily life. Industrial subjects cannot be per- manently excluded from the purview of free men engaged in the industry. The industry cannot be carried on without capital (I do not say capitalists, but capital) ; nor can it be carried on without labour. The capitalist has his capital at stake ; the employee has his life at stake. I do not mean by his life merely his food, clothing, shelter ; I include the whole mass of his life's powers and activities. As artists select their subjects and the mode of treating their subjects, and passionately repudiate dictation, so do workmen in their own degree. Often sidelights are thrown by witnesses during the Court discussions, sidelights which are all the more valuable as coming from minds concentrated on some other subject, some definite claim ; and I am satisfied that much of the discontent of workers arises from being treated as cogs in a huge machine, and that there would be far FOR LAW AND ORDER 357 more interest taken in the work and the results, and even valuable suggestions made for improvement, if the workers were taken into council. Even under existing conditions, men show delight in, affection for a good tool or machine, though it does not add one penny to their earnings. I have, therefore, again and again, before and during and since the war, called attention in my judgments and articles to the im- portance of bringing the workmen and the manage- ment together to discuss methods and results ; and I have made all the use that was possible to this end of the power conferred by Sect. 40 to create " boards of reference " ; but such boards are not sufficient. They have to be confined to matters arising tmder the award. What is wanted is a shop committee (in the first instance) which can discuss any matter that may arise in the industry or the undertaking. Our Constitution and our Act do not allow such committees ; and I see nothing for it but to commit to the Federal Parliament, by amendment of the Constitution, the complete power over all industrial matters. This course would enable the Parliament, if and when it sees fit, to limit any undue autocracy of those who supply the capital. It may even be suggested, indeed, that there is no valid ground in the nature of things why those who supply the capital should have the sole direction of industry. Their objective is profits ; and for the sake of profits they often limit production, turn out inferior and tasteless products, degrade the lives of the producers. Indeed, if any means could be found whereby those who supply the capital — whether private concerns or the public — could be freed from the duty of conducting the industry, could be turned 158 A NEW PROVINCE into a kind of mortgage debenture holders entitled to receive a fixed rate of interest — the results would probably be better for the product, in the artistic aspect, for the methods used for the appliances, for the workers (from manager to labourers), and for the community as a whole. The usual points of friction — remuneration, hours, conditions of labour — would be much more effectively handled by the workers themselves than by those who look merely for profit; for the workers know the facts more intimately. Any regulation from above would be rather regulation as between the public as a whole — the consumers — and the workers, or as between the workers themselves ; and the brunt of disputes would fall no longer on the comparatively small and much abused class of profit- makers. But there probably is a long, long way to travel yet before such a suggestion becomes a proposal for action. Companies and Employees. There is another matter, which seems unimportant at first sight, but which tends to industrial deadlocks, operating as a hindrance to the settlement of disputes. It is a matter as to which I do not see clearly a remedy under the existing state of company law. Most of the big undertakings are carried on by companies ; the employer is a company consisting of shareholders; and most shareholders know nothing of the operations of the business, care for nothing except dividends and the value of their shares. Directors may, or may not, be familiar with the operations as carried on from day to day; but they feel that their duty is to their shareholders, and mostly concentrate their attention on the finances FOR LAW AND ORDER 159 and the interests of the shareholders only. When a dispute comes before the Court, the directors send a manager or secretary as their advocate, and often he can consent to nothing without their authority. They even fetter him with instructions. Unions do the same with their advocates sometimes. The advocate who hears the discussions, and knows the position, would often, evidently, yield a point or assent to a reasonable arrangement if he were allowed a free hand ; but he has to obey his principals. Those who know are cramped in their action by those who do not know. If the directors and the committee of the union could only be present at the discussion, much friction, as well as evidence and argument, could often be saved ; but it is too much to expect them to be present. If they could see their way to give their advocate full powers, could make him their plenipotentiary, it would be a great gain. Counsel can bind their client by a consent or a compromise ; why should not the industrial advocate have at the least a similar power ? Too often a company and its directors bear the aspects to the emploj'ees of a deaf and selfish and obstinate body t)f persons who care nothing except to keep up the receipts and keep down the expenses,-and who know nothing of the discussion in the Court. In the recent engineers' case I announced that I would accept whichever course the employers preferred on a certain subject ; the employers' advocates met and unanimously selected the course and announced it. I incorporated their choice in the award, and yet an official of a great company concerned wrote (for the directors) a long statement to the newspapers com- plaining of the course that had been followed, not i6o A NEW PROVINCE knowing that it had been requested by their advocate and the other employers'. The incident points to the lack of contact between the directors' board-room and the Court ; but what is lacking most of all is direct contact between the ultimate employer and the employees. Neither the shareholder nor the em- ployees see, usually, the others' point of view. Unemployment. There is one industrial sore which no process of arbitration can heal, as it would seem ; it is unem- ployment. It is impossible to overstate the evil effects, moral and physical, on the worker and on the community. The man who goes morning after morning to the gate and is turned away with " Nothing to-day " not only sees his wife and children suffering, but feels personally degraded. It is the man who has no job that drinks in the words of those who favour extreme courses, railing in his bitterness against the society which fails to provide means whereby he may apply his powers and con- vert his brawn and his brains into bread. The fear of unemployment haunts the workers all their lives ; it is the ghost present, like Banquo's, even at a feast. Unemployment of men willing and able to work is also a huge waste of the nation's resources. News- papers eagerly quote statistics as to losses in produc- tion and ia wages caused by strikes ; but the losses caused by unemployment and curtailed employment are far greater. Last May it was estimated that there were three million workers out of work in the United States, that many more were working only part time, and that the loss in output was fully £6,000,000 per day. Unemployment is a standing FOR LAW AND ORDER i6i reproach to our modern society ; it constitutes a terrible indictment of our whole social organization. It is all a fault of organization, and the remedy must be found. The main cause of unemployment is insuffi- cient demand for the goods ; and the main cause of the insufficient demand is the poverty of those who would like to purchase, but cannot. There is no market so good as that of a big population well fed and well paid all round. Over-production of wool or wheat generally means under-consumption of wool or wheat — somewhere. We cannot supply foreigners with money wherewith to buy our products ; but can nothing be done with our own people ? It has been urged that in slack times the surplus labour force could, under proper organization, be stored up in permanent improvements, such as add to the nation's resources to meet future times of expansion. In times of stagnation, proceed with works of undoubted utility; in times of active demand, release the workers for the production that is necessary. ** What you need," it is said, '* is a reservoir which will take the supply when the need is less, and give it back when the need is more, thereby keeping a constant circula- tion at uniform pressure." But organization to any such end must follow a definite and continuous system; the present haphazard practice of Govern- ment finding some public work to relieve unemploy- ment when business is slack will not suffice. The whole subject is, as I have intimated, outside the scope of industrial tribunals ; but it vitally affects the problems with which the tribunals have to deal. " Give us," said an employee witness recently, " a guarantee of regular employment, and all these diffi- culties will vanish." He was speaking of restrictions n i62 A NEW PROVINCE as to the number of apprentices, and other restric- tions incident to trades unionism, restrictions which must hamper and irritate even the best of employers. I find that Mr. Philip Snowden in his recent work, " Labour and the New World," expresses himself strongly to the same effect : " The most potent of the influences which prevent the workers from heartily co-operating in securing the maximum output is the fear of unemployment. If the assurance of perma- nent employment were given, the whole outlook of labour on the question of production would be changed" (p. 169). As Professor Commons, of the University of Wisconsin, has pointed out in the International Labour Review (pp. 66-67), manage- ment can provide security of the job if security is deemed important enough ; and as the workman's compensation law — practically a tax on accidents — has led to drastic and successful measures for the pre- vention of accidents ; as health insurance, a tax on absences through illness, leads to provisions for securing health ; so may we expect that unemploy- ment insurance — a tax on unemployment through discharge of workmen — conduces to proper organiza- tion whereby the employees will be secured in regular work and wages. Special Tribunals. But whatever may be the necessary shortcomings of the impartial arbitrator, it is clear that any tribunal to be organized must be permanent, or quasi- permanent — not created ad hoc for a particular emer- gency ; not opportunist, but acting on defined prin- ciples from dispute to dispute. A union that is dissatisfied with the tribunal's award on some subject FOR LAW AND ORDER 163 must not be provided with another tribunal to deal with that subject afresh — taking what it has got under one arbitrator and insisting on a new arbitra- tion and a new arbitrator for the rest. It is here that, in my opinion, the Government made its mistakes before the Industrial Peace Act, and where the Parlia- ment — I say it with all respect — has made a fatal mistake in that Act. It was this error in particular that induced me to resign the presidency of the Court. I shall not use this book for the purpose of an attack on the Government. The statement which I made on the subject on October 25, 1920, more than a month after the Act was passed, was made with deliberation, and I am content to leave my reasons for others to weigh (see Appendix B). I merely want to give the public the benefit of such experience as I have had, showing the conditions under which not alone the Court, but any substituted tribunal, can carry on its functions usefully. The characteristic feature of our Courts of Justice, which has earned for them the respect of the public and made them efficient instruments in aid of law and order, is their fearless maintenance of what they deem to be right. They make mistakes sometimes; but they aim at asserting the rule of right as against the force of might — whether the might of powerful barons in former times, or of powerful ministers, or of powerful men of wealth, or of powerful unions in modern times. They decline to act under threat ; they will npt be " hustled " or " bluffed." In ordinary civil proceedings we should regard it as something monstrous if a disappointed litigant were, by threats of running amuck in the streets, to induce the Govern- ment to create a new tribunal and give him a new "^ i64 A NEW PROVINCE trial for his claims or for the balance thereof. What would be unwise as to civil causes is sheer madness in industrial causes, with all their psychological re- actions on great masses of workers. There is a saying, " The wheel that squeaks the most gets the most grease "; and if by squeaking or striking, or threaten- ing strike, a union finds that it obtains more of its demands, why, it will " squeak," and other unions will squeak too. It is hard to conceive of a more effective device for encouraging industrial stoppages and for making the work of the Court ineffective. Moreover, the Industrial Peace Act (Sec. 29 ; in Appendix A) provides that the Court shall not make any award or order inconsistent with the award of the special tribunal ; but there is no provision ^ con- verso that the special tribunal shall not make any award inconsistent with the award of the Court. The proper attitude, I submit, is to say : " You have your remedy by arbitration ; you shall have no other remedy by arbitration, and we shall use all the powers that the law gives us if you hold up the community and exploit its needs." One would have thought that these considerations are obvious. Yet I cannot find in the Hansard reports of the debates on the Industrial Peace Bill, in either House, any allusions on the part of the Prime Minister or of the other members to the psychological effects of the measure on the workers. One member — and one member only, apparently— did suggest that the President or Deputy President should be first consulted ; but even that suggestion was not noticed afterwards. I see that Lord Bryce, in his recent valuable work on Democratic Government (p. 233), says of the FOR LAW AND ORDER 165 Australian labour leaders that "they know human nature — which is, after all, the thing that a politician needs to know — quite as well, and the particular type of human nature to which most Australian voters be- long, very much better" (than their antagonists). He also says that the weak point of Australian politicians (of all parties) is " their deficient education." I have sat as a member in the Victorian House and in the Australian House, and I do not think that any deficiency of education is the weak point, for the purposes of legislation, when the members are com- pared with members of the British or of the American Houses. What seems to me to be a more serious defect, practically, is the lack of foresight — the lack of the habit of studying the consequences of a measure in its details, the lack of thoroughness in workmanship. The newspapers, however, which are the main source of information available for the public, do not encourage care in workmanship — they give far more prominence to altercations and rude repartees than to solid work. But if my resignation has the effect of calling the attention of the public to the dangers of the policy recently adopted, it will have a good result. The errors of one Government and of one Parliament may be rectified in the light of experience ; and the resolu- tion of the Trades Hall Council, the resolution of the Australian Workers' Union (by far the greatest union in Australia), and the resolution of the federation of all the building trades, and many other similar reso- lutions, show how eagerly the unionists crave the assistance of the Court and desire that it shall con- tinue its functions. The resolution of the Trades Hall Council was followed up and supported by a i66 A NEW PROVINCE deputation from many unions to the Prime Minister, and by a subsequent deputation to the Acting Prime Minister, but with no result. I fancy, however, that some of the ministers and members now see that a mistake has been made, see that they have taken the wrong road ; for there is more reluctance now, appa- rently, to create special tribunals than before my announcement. Experiment. But if we overlook the mistakes — temporary, as we must hope — of special tribunals, and the mistake made by the Constitution in committing industrial matters both to the States and to the Commonwealth, there is much encouragement to be derived from the contemplation of the Australian experiments of in- dustrial tribunals. Australia has in several matters anticipated other countries in its legislation — perhaps because of freedom from external complications. All the States adopted the Torrens system for simplifica- tion of titles to land, in spite of the opposition of the lawyers, and with great success. All the States anticipated Britain and other countries in providing for vote by ballot, disregarding the dogmatic censures of Sidney Smith and many others. Australia was, I believe, one of the first countries to adopt female suffrage. But the provisions of Courts for the pro- tection of human life employed in industries is probably the most characteristic contribution of Aus- tralia (and New Zealand) to general civilization. Naturally, as the legislation affects so many powerful interests, there has been grumbling ; but the antago- nism is still more bitter of those theorists who preach the necessity for cataclysmic revolution. There are FOR LAW AND ORDER 167 many proposals to improve the system ; but there is not any proposal to abolish it. The minimum wage laws now in force, and projected, in Britain and in many of the States of America, as well as the legisla- tion of Norway and Kansas, and the projects of laws as to public utilities in France and elsewhere, show that the example of Australia has had already con- siderable effect abroad. It may fairly be said, I think, that the greatest gains which humanity has made for itself have been the result of bold experi- mentation, with correction of mistakes. The men who saw a goal before them and made for it, de- spising difficulties, surmounting obstructions, ignoring abstract and untested doctrines, have done marvels. Some seven hundred years ago the great Oxford friar, Roger Bacon, preached: " Experiment, experiment — pore not over the teaching of Aristotle to find solu- tions." "Machines for navigating," said he, "are possible without rowers, so that great ships suited for river or ocean, guided by one man, may be borne with greater speed than if they were full of men. Likewise cars may be made so that without a draught animal they may be moved cum impeUi insestimabili, as we deem the scythed chariots to have been from which antiquity fought. And flying machines are possible, so that a man may sit in the middle turning some device by which artificial wings may beat the air in the manner of a flying bird." In these days the problems of industry must be approached, not through the dicta of the political economists of the nineteenth century, but by thoughtful and well-directed experi- ment. There are many analogies. The learned pundits taught in the time of Galileo that a body ten times as heavy as another falls ten times as fast. i68 A NEW PROVINCE Galileo climbed the Leaning Tower of Pisa and put the doctrine to a test. The doctrine turned out to be wrong. King Charles II. propounded to his new Royal Society the question, " Why does a dead fish weigh heavier than a live one ?" The members gravely addressed themselves to explanations ; but some- one said, " I doubt the fact." Fish, alive and dead, were weighed, and the live weighed as heavy as the dead. The good Earl of Shaftesbury was warned by Senior and other economists that the industries of England would be ruined unless children worked in factories for ten or twelve hours per day. After many fruitless efforts he induced Parliament to put the matter to test ; and the industries became more pros- perous than ever. Learned men said that navigation by steam was impossible, that air-flying was beyond human powers ; and they were wrong. They told us that a law for minimum wages was absurd, that the wage fund was fixed by irreversible economic laws, that the laws so-called of demand and supply were in- exorable, that industrial tribunals were impracticable ; and they were wrong. We all make mistakes, and we have to learn by our mistakes. The man who makes no mistakes, it is said, generally makes nothing. Industrial tribunals are doing their best for human life, the only wealth. It is the noblest objective. We work and learn. FOR LAW AND ORDER i6g APPENDIX A. Industrial Peace Act, 1920; assented to September 13, 19^20. Part IV. — Special Tribunals. 13. The Governor - General may appoint a special tribunal or tribunals for the prevention of, or settlement of, any industrial dispute or disputes. 14. (i) A special tribunal shall consist of an equal number of representatives of employers and employees respectively, together with a chairman. (2) The chairman shall be chosen by agreement be- tween the representatives of employers and employees, or, in default of agreement, shall be appointed by the Governor-General. 15. (i) A special tribunal shall have cognizance — (a) Of any industrial dispute between an organiza- tion of employees on the one hand and employers or associations of employers on the other hand referred to it by the persons or organizations parties thereto ; and (b) Of any industrial dispute, as to which a con- ference has been held under Section 18 of this Act and as to which agreement has not been reached as to^the whole of the dispute, and which has been referred to the special tribunal iu accordance with Section 20 of this Act ; and have power to inquire into all matters relevant to the dispute from the point of production to the final dis- posal of the commodity by the employer (in the case of a producing industry), and the decision of the tribunal on the question of relevancy shall be final : 170 A NEW PROVINCE ) Provided that no dispute as to which the hearing has commenced in the Court shall be referred to a special tribunal. (2) No evidence relating to any trade secret, or to the profits or financial position, of any witness or party shall be disclosed except to the tribunal or published without the consent of the person entitled to the trade secret or non-disclosure. Penalty : Five hundred pounds or imprisonment for three months. (3) All such evidence shall, if the witness or party so requests, be taken in private. 16. A special tribunal shall have power to hear and determine any industrial dispute of which it has cog- nizance, and for the purpose shall have (in addition to any other powers conferred on it under this Act) all powers which by the Commonwealth Conciliation and Arbitration Act, 1904-1918, are expressed to be given to the Court or the President as regards an industrial dispute of which the Court has cognizance ; and any act or omission on the part of any person which would, if the hearing or inquiry were the hearing of an industrial dispute before the Court, be an offence against the Commonwealth Conciliation and Arbitration Act, 1904- 191 9, shall be an offence against this Act. 17. Any order or award made by a special tribunal shall be binding on the parties, and may be enforced as an award of the Court. 18. (i) A special tribunal or the chairman thereof, or the Minister, or any person thereto authorized in writing by the Minister, may for the purpose of preventing or settling industrial disputes summon any person to attend, at a time and place specified in the summons, at a conference. (2) "Any person" (last occurring) in the last pre- ceding subsection includes not only persons engaged in or connected with an industrial dispute, but also any FOR LAW AND ORDER 171 person engaged in or connected with any dispute relating to industrial matters (whether extending beyond the limits of a State or not), and relating in any way to an industrial dispute, and also includes any person, whether connected with an industrial dispute or not, whose presence at the conference the person or tribunal sum- moning the conference thinks is likely to conduce to the prevention or settlement of an industrial dispute. (3) Any person so summoned shall attend the con- ference and continue his attendance as directed by the person or tribunal summoning the conference. (4) The conference may be held partly or wholly in public or in private at the discretion of the person or tribunal summoning the conference. ig. Where, at the hearing before a special tribunal, or at any conference summoned in pursuance of this Act, an agreement as to the whole or part of any industrial dispute is made in writing between parties thereto, the agreement may be filed with the Industrial Registrar, and shall thereupon have effect in all respects and be binding on the parties and enforceable as if it were an award of the Court. 20. Where a conference has been held under Section 18 of the Act, but agreement has not been reached as to the whole of the industrial dispute — (a) The chairman of the special tribunal, if the conference was summoned by the special tribunal or the chairman thereof, may refer the dispute to the special tribunal ; or (b) The Minister, if the conference was summoned by him or by a person authorized by him, may refer the dispute to a special tribunal. 21. During the currency of any award or order made by a special tribunal or a local board under this Act, the Court shall not have jurisdiction to make any award or order inconsistent with any such award or order. 172 A NEW PROVINCE APPENDIX B. Statement made in Court by Mr. Justice Higgins ON Announcing his Resignation (September 25, 1920). Two of the three Bills affecting this Court have now become Acts of Parliament. Parliament has expressed its will, and there is no hope of reconsideration. As in duty bound, there being no request for my opinion, I have refrained from comment on the Bills during the deliberations ; but now I am free. I see no course open to me but to resign my office as President of the Court as soon as I have completed certain matters partly heard, and it is due to the public that I should state my reasons. Under ordinary circumstances, it would be sufficient to state my reasons to the Attorney- General ; but the present Attorney- General, as Prime Minister, is the author of the Bills. It is now generally recognized that the Court has been of great public service, keeping the wheels of industry moving, standardizing working conditions, and easing the conditions of the workers under the pressure of the rising cost of living, and that it has, within the limits of its jurisdiction, saved the community from the violent crises which have occurred during and since the war in Great Britain, Canada, the United States, Italy and elsewhere ; few people know, however, what grave perils the Court has averted. By the Industrial Peace Act the Prime Minister (unwittingly, I think) undermines the influence and usefulness of the Court, and creates a position which will surely give rise to many industrial stoppages. Part IV. of the Act enables the Government to FOR LAW AND ORDER 173 appoint a special tribunal for the prevention or settle- ment of any industrial dispute. This is to be a tem- porary tribunal for a particular dispute, and it is to be the creature of the Executive Government. From the nature of the case, any such temporary tribunal must be merely opportunist, seeking to get the work of the par- ticular industry carried on at all costs, even the cost of concessions to unjust demands, and of encouraging similar demands from other quarters. On the other hand, a permanent Court of a judicial character tends to reduce conditions to system, to standardize them, to prevent irritating contrast. It knows that a reckless concession made in one case will multiply future troubles. A union that knows that a certain claim is unlikely to be conceded by the Court will bring pressure to bear upon the Government for a special tribunal ; and the special tribunal appointed by the Government will be apt to yield to demands for the sake of continuity in the one industry before it, regardless of the conse- quences in other industries. The objectives of the permanent Court and of the temporary tribunal are, in truth, quite different — one seeks to provide a just and balanced system which shall tend to continuity of work in industries generally, whereas the other seeks to pre- vent or to end a present strike in one industry. The chairman of the recent coal tribunal spoke sound sense when he said : " It is clearly an impossible situation if you should come before this tribunal to see what you could get, and if you are not satisfied then go before some other tribunal of a concurrent jurisdiction." I might go even further, and say that a permanent Court, working on a reasoned system and for many industries, cannot function in competition with temporary tribunals created to avoid or end a specific strike in a specific industry. A tribunal of reason cannot do its work side by side with executive tribunals of panic. 174 A NEW PROVINCE Moreover, the awards of the Court are no longer to have that finality which was provided in the Act under which the Court was constituted (Section 31). I take a concrete illustration of a position which is quite prob- able. A union seeks an award as to wages, hours, and many other conditions. One claim is for a thirty hours' week — five days of six hours each. The Court grants other claims, but refuses the claim as to hours. The union accepts what is granted, but does not drop its movement for the reduction of hours. It sends to the employers a demand for a thirty hours' week, or (to avoid a possible legal difficulty) a demand for a thirty- three hours' week. The employers refuse, and the union threatens strike. A Minister summons a compulsory conference under the new Act. There is no agreement. Then the Government appoints a special tribunal to settle the dispute as to the thirty-three hours, and that dispute alone. The Government appoints the chairman. The chairman owes his temporary position to the Government, and has no responsibility as to other industries. The Minister refers the dispute to this tribunal, and the tribunal reconsiders the question of hours, which the Court has already considered, and on which it has made an award as part of a whole con- sistent and interdependent scheme. The tribunal knows that it acts under a threat of strike if the hours are not granted, and it is naturally anxious that operations should not cease. If the claim be granted, the union — and other unions — will attribute the victory to the weapon of strike, and strikes and threats of strikes are thus encouraged. If the claims be not granted, the position will be just as bad as, if not worse than, when the Court gave its award. This is no fancy picture. I have on other occasions been reluctantly compelled to animadvert on the action of the Prime Minister in creating tribunals supple- FOR LAW AND ORDER 175 mentary to this Court under the pressure of strike or threat of strike — in the cases of the waterside workers, the marine engineers, etc. It was pointed out that the Prime Minister had no power to appoint such tribunals, but now Parliament has given him the power, by an Act passed at his instance. The tribunals will, no doubt, be often a convenient mode of yielding to strike without expressly admitting it ; the disastrous experi- ments of the seamen's case, the marine engineers' case — where the Executive, without consulting the Court, sub- stituted its own wage scales for those of the Court — will be repeated. I decline to be responsible for the Court under the new conditions. My objection is not to the creation of other tribunals in addition to this Court. To create some permanent tribunals, for specific industries or groups of industries, might be a legitimate way of relieving the Court of the pressure of business. But they should be permanent, not temporary, and there ought to be some co-ordinating authority, Hke an Appeal Court, to bring the several tribunals into consistency and system ; for the tribunals, being independent of each other, must sometimes differ in their awards, and there is nothing that creates more industrial troubles than contrasts in conditions unless it be an intermeddling and pliable Executive. It was my honoured friend the late Alfred Deakin who, as Prime Minister, asked me to undertake the work of this Court. The work was committed to me in 1907 for seven years. My second term will expire in Sep- tember, 192 1, and nothing but the strongest reasons would induce me to abandon the trust before the ap- pointed time. It is true that the work is very exacting, and that a release from the duties will bring me much more leisure than I have known for many years, with relief from intense strain and from partisan abuse. It is true that the Prime Minister has not consulted either 176 LAW AND ORDER Mr. Justice Powers or myself as to the details of any of the Bills, or asked for suggestions, although an experience of seven years in the one case and of fifteen years in the other would have been gladly made available for the benefit of the country. It is true that the Government has neglected for years to relieve the con- gestion of business in the Court by taking steps for the appointment of a sufficient numbej of Deputy-Presidents. It is true that in August, 1917, 1 sent in, at the request of the Prime Minister, suggestions for the improvement of the Act, and that nothing has been done as to any of the suggestions until now, and that several other urgent suggestions based on my actual experience have been ignored or mishandled. It is true that since I refused to carry out his will in the case'of the waterside workers, in September, 191 7, the Prime Minister has not given me any idea of his intentions as to the Court, and that he even intimated (September 28, 19 17) that he might give Parliament an opportunity to consider the ad- visability of removing me from the Court. Yet I do not think that even such treatment would justify my resignation ; my resignation is due to my opinion that the public usefulness of the Court has been fatally injured. I make this announcement at once, at my first sitting in this Court since Parliament committed itself to this policy. I make it now with the view of giving the authorities time to make any new arrangement. INDEX Absenteeism in Labour, 130 America (U.S.A.), constitution of, compared with Australia, 1-3 ; new merchant fleet reacts on Australia, 81,99, 126; basic wage in, 94-96 Apprenticeshfp, 9, 133, 134 Arbitration, compulsory, miscon- ceptions about, in England and U.S.A., 40,108-110, 148 ; inter- ference by Executive Govern- ment in, 86; guides parties to voluntary agreement, 91, 140 ; in Norway, Kansas, and France, 108 ; effect of, on industry, 140-144; does not call for expert technical know- ledge, 155 Arbitration Courts, State systems of, in Australia, 31, 39, 114, 156-158 Australia, success of, in legisla- tive experiment, 167 Australian Workers Union, atti- tude to Court, 75, 76, 87 Bacon, Roger, 167 Basic wage (or living wage), a first charge on product, 53 ; defined, 90 ; how ascertained, 94 ; on same basis as U.S.A., 95 ; see also Wages Basic Wage Commission of 1920, 133-135 Belloc, Hilaire, and "The Servile State," 45, no Boards of Reference, 22, 49, 50, 105, 106, III, 155 Boy labour, 48, 128, 133, 134 Browning, Robert, 148, 151 Bryce, Lord, 164 Capitalism, 159, 160 Cases mentioned in text : Rex v. Barger (Excise Tariff Act), 4 ; Holden v. Hardy (U.S.A.), 56; McCulloch V. Maryland (U.S.A.), 65 ; Waterside Workers v. Alexander (25 C.L.R. 434), III; Federated Gas Employees (27 C L.R. 72), III, 112 Casual employment, loi, 102, 129, 130 Class war, 29, 158 Cole, G. D. H., 61, 151 Collective agreement, difficulties as to, 109 Common rule, not authorized, 21, 22 Commons, Professor, 162 Companies, as employers, 160, 161 Competition, consideration of, 7. 51 Conditions of labour, laborious- ness, 8, 9, 13 ; loads, 47, 48, 92 ; offensive, 46, 47, 100, loi ; hours, 56-59 ; continuous pro- cesses, 89 ; standardizing, 90, 91, 138-140 ; mechanical appli- ances, 103 Conference, compulsory, 24-26, 73 Constitution of Australia, Fede- ral, power to create Arbitra- tion Court, 2 ; compared with U.S.A., 2 ; need for altera- tions, 115, 157 Control of industry, claim of employees for voice in, 49, 50, 106, 158-160 Cost of living in Melbourne in 1907, 4 ; differences between localities, 10 ; use of statistics to determine, 29, 30 ; need of scientific inquiry as to, 52-54, 95. 135 ; current criticisms of statistician's methods, 54 Costing, need of figures of, 142 77 12 178 INDEX Court of Conciliation and Arbi- tration, origin, 1-3 ; how limi- ted, 2, 18, 19-21, 65 ; principles established in adjudication, 6-13 ; costs of proceedings, 20, 113; lawyers not employed, 20 ; length of proceedings, 20 ; no common rule for industry, 21, 22 ; power to vary and to withhold awards, 24 ; con- fidence of disputants in, 27 ; effect of limitation of powers of, 16 ; voluntary submissions to, 27, 75 ; opposition to, 27 ; effect of, on strikes, 35, 36, 61 ; awards not flouted, 35 ; jurisdiction extended to Fede- ral Public Servants, 36 ; con- sistency of awards necessary, 41 ; prevents stoppage, 59-61, 79, 80 ; refuses arbitration to strikers, 62, 71, 82, 83 ; juris- diction to "prevent ' ' disputes, 73 ; acceptance of standards fixed by, 91, 92 ; advantage of, during war period, 93 ; defects in Act establishing, 110- 117; enforcement of awards of, no; assistance sought by States, in ; need of increased staff of, 114; magnitude of amounts and interests involved, 121, 154; objections to, considered, 155, 156; power to appoint asses- sors, 156; results achieved by, 157 Craftsmanship, 127-128 Dewey, John, 106 Employers, functions of, aot controlled by Court, 13, 155 ; seek aid of Court, 26, 75 ; oppose Court, 28 ; strong strategic position of, 40 ; regu- lation of methods of, 47, 48 ; refusal to dictate to, 48, loi ; follow system of Court, 91 ; need of costing figures of, 142 ; instructions to advocates, 160- 162 Excise Tariff Act, 3,5; (Rex v. Barger), 96 Factory legislation in England, 168 Freedom of bargaining, 44, 48, 98 Freedom of contract, so-called, 19 Goldmark, Miss Josephine, 48, 125 Great Britain, effect of higher merchant service wages on Australia, 81 ; coal commis- sion in, 106 Guild Socialism, 153 High Court of Australia, how constituted, 3 ; and Excise Tariff Act, 3 ; and common rule, 21 ; and Boards of Refer- ence, 21 ; prohibition from, to Arbitration Court, 29, 72, 112 ; and minimum wage, 43 ; effect of decisions of, on Arbitration Court, 81, 82, III, 112 Holidays and leave of absence, 12 Holmes, Oliver Wendell, 60 Home, Sir Robert, 80 Hours of work, 12, 56-59 ; forty- eight-hour week, 56, 57 ; of miners and smelters, 57; eight- hour day for seamen, 88, 89; forty - four - hour week in machine industries, 124, 125 ; for boys, 133, 134 Improvers, g, 133 Industrial Peace Act, Australia, 1920, 163, 164 ; text of, 169-171 Industry, control of ; see control of industry International Labour Review, 162 "Koombana" case, the, 23 "Law of supply and demand," 19, 20, 145 Leave of absence and holidays INDEX 179 Leverhulme, Lord, 106. Living wage ; see wages and basic wage Local tribunals and local dis- putes, ii5 Lockouts, how far prohibited by Act, 2 Lowell, James Russell, 34 Machinery and methods, new, freedom to use, 13 Machinists, wages of, 127-128 Marx, Karl, 149 Metropolitan Gas Company, Melbourne, favours regulation by Court, 90, 93 Mines, exhaustion of, 7 ; hours worked in, 56, 57 Minimum wage (see also wages), 6-12, 14, 42-45, 98, 99 ; de- crease of, 30 ; workers not obliged to accept, 43-44 ; does not prevent higher rates, 44 ; basis of differentiation in, 46 ; how ascertained, 94 Money, purchasing power of, as applied to secondary wage, 55. 126 Newcastle (N.S.W.), steel works at, 132 New protection, the, 2 New Republic, the, 106 New South Wales, Wages Boards and Arbitration Courts in, 31, 32; motherhood en- dowment proposal, 137 Newspapers, attitude to Court, 142 ; and Parliament, 163 New Statesman, the, 131, 143, 145 Output, consideration of, by Court, 132 Pastoral industry, wages in, 87, 88; hours in, 115, 116 Piece work, 14, 59, 102, 103 ; and production, 131, 132 Political economy, orthodox, 166-168 Preference to unionists, 16-18 Prices, consideration of, 7 ; in relation to wages, 34, 126, 127 Profits, consideration of, 7 Prohibitions, addressed to Court, 29 Public interest, consideration of, 13. 72 Public servants, federal, powers of Court extended to, 36 Queensland, Arbitration Court in, 31 Resignation of Justice Higgins, 165, 166; statement of grounds of, 172-176 Rest periods, 58 ; of shearers, 59 Rockefeller, J. D., junior, 106 Rowntree, Seebohm, 95, 137 Sankey, Justice, and coal com- mission in England, 106 Seamen and maritime em- ployees ; strike of, 81, 82, 117, 118; wages of, 88; hours of, 88, 89 Shaftesbury, Earl of, 168 Shearers, 14 ; rest periods of, 59 Shop committees, need for, 104, 103, 159 Slow workers, 9 " Smokos," 58 Snowden, Philip, 162 Social reconstruction, schemes of, 37. 38, 77, 122, 149, 150, 166-168 South Australia, wages boards in, 31 "Special Cargoes," wages for, 47, 107, 108 Special tribunals, supplementary to court, 85, 1 17-122, 162-166, 170-175 ; as constituted by In- dustrial Peace Act, 169-171 Speed of working, 59 Standard of living, increased by Court, 96, 97 Stoppages of work, 59-68 Strikes, how far prohibited by Act, 2 ; sympathetic, 23, 64, 68-71, 79; effect of court on, i8o INDEX 35) 36, 78, 80 ; meaning of, 42 ; of coal miners in 191 6, 62-64 ; ofglass bottle makers, in 1917, 64 ; of N.S.W. railwaymen in 1917, 64 ; of seamen in 1919, 82, 83 ; of marine engineers, 83 ; of gas workers, 84, 85 Tasmania, wages boards in, 31 Technical schools, and appren- ticeship, 9, 10, 133, 134 Times, London, the, as to attitude of labour movement to Court, 87 Timewdrk, 102, 103 Tips, 10, II Trade unions, essential to work of Court, 15 ; influence of leaders of, for peace, 15 ; pre- ference to members of, 15-18 ; opposition of, to Court, 28 ; deregistration of, 66, 67 ; seek registration under Court, 66; greater unions favour Court, 75, 87, 146, 165 ; instructions to advocates representing, 159 Trade unions mentioned in text : Amalgamated Society of Engineers, 46, 64, 80, 103, 125, 127-130, 131, 132, 134, 141, 159; Artificial Manure Employees, 47 ; Australian Workers Union (A.W.U.), 30, 74. 75i 87, 88, 165; Boot Em- ployees, 6 n., 9 n., 10 n. , 21, 22, 32 ; Broken Hill Unions, 6 n., 9 n., 10 n., 13 n., 56, 57, 143; Builders' Labourers, 6 n., 8 n., 9 n., 10 n„ 12, 16, 22 n., 30, 33, 56; Building Trades Federation, 165 ; Coal and Shale Em- ployees, 62, 65 n., 117, 153; Clothing Workers, 89, 91 ; Coopers, 89 n., 98, 99 n., 103, 104 n. , 131 n. ; Engine Drivers, 6 n., 7 n., 8 n., 10 n., 16 n., 19 n., 20, 22 n., 25 n. , 29 n., 32 n., 33 n., 41 n., 51 ; Engine Drivers (River), 25 n. ; Feder- ated Railway Association, 65 n. ; Fruit Employees, 10 n., 11 n., 13 n., 14, 21, 23 n., 24 n,, 26 n., 49 n., 74, 89 n. ; Gas Employees, 6 n., 8 n., 10 n., 13 n., 23 n., 34, 48 n., 51 n., 52,53, 54 n., 56, 56 n., 84, 85, 89 n., 100, loi, 104, 112 n., 119 ; Glass Bottle Makers, 25 n. , 64 ; Glass Founders, 89 n. ; Independent Workers Federation, 17 ; Iron Workers, 72 ; Journalists 25 n. ; Liquor Employees 23 n., 25 n., 89n.,92; Marine Cooks, etc., 5, 7 n,, 8 n., 9 n. 26 n., 83 ; Marine Engineers 12 n., 16 n., 20. n., 48 n., 55 n. 83, 107, 108 ; Marine Stewards 8 n., 10 n., II n., 13 n., 41 n. 83 ; Meat Trade Employees 25, 26, 49 n., 54 n.. 55 n.. 57 n-i 59 ; Merchant Service Guild, 6 n., 8 n., 10 n,, 12 n 13 n., 22 n., 27, 48 n., 54 n. 69, 73 n., 83, 98 n., 126, 127 MetalMiners(Barrier Branch) 6 n. ; Pastoralists Employees 58, 59, 58 n., 75. 76, 88, 92 115, 116, 121 ; Postal Eleo tricians, 6 n., 8n., 12 n,, 13 n. 30 n., 48 n. ; Postal Linemen etc., 48 n. ; Public Servants Federal, 36; Seamen, 6 n. 8 n,, 10 n., 12 n., 13 n., 17 22 n., 24 n., 26 n., 81, 82, 88 89, 99, 117, 118, 146 n., 154 Shearers, etc., 6 n., 7 n., 14 16, 21, 30 n., 48 n., 58, 87 Ship Dockers, etc., 89 n., loi Timber Workers, 124, 129 Tramway Employees, 14 n. 15 n., 16 n,, 18 n., 26 n., 30 41 n. ; Waterside Workers 10 n., 24, 26 n., 43, 44, 47, 58 65-71. 73. 86 n., 9on.,92, 93 101-104, 107, III, 118, iig 121, 131 n. Unemployment, 125, 160-162 Unions ; see under Trade Unions Variation of awards, 24 Vernon, Dr., 125 INDEX i8i Victoria, wages boards in, 31 ; Premier of, refuses to create special tribunal for strikers, 85. 119 Wages, " fair and reasonable," 3 ; for skilled and unskillea labour, 4, 5, 6, 7, 55, 56 ; first basic wage award, 3, 4, 136, 137; basic and secondary, 6, 7, 42, 89, 90, 97, 98, 126, 127, 143 - 145 ; principles estab- lished in settlement of, 6-12, 52 ; based on highest func- tion, 8 ; based on average capacity, 8 ; and laborious- ness, 8 ; for casual and regular workers, 9 ; for aged and slow workers, 9; of "improvers," 9 ; for dangerous or dirty work, 10, 46, 47, 100, loi ; necessary expenses of em- ployees, 10; tips ("bunce"), 10; keep, 76 ; of women, 11, 49 ; for piecework, 14 ; and freedom of contract, 19; de- crease of minimum, 30, 31 ; minimum, 42-45, 98, 99 ; for special cargoes, 47; in pastoral industry, 87, 88 ; of casual workers, 90; vicious circle, theory of, answered, 97 ; weekly and casual, loi, 102, 129, 130 ; of machinists and tradesmen, 127, 128 Wages Boards, State Systems of, in Australia, 31 ; de- ficiencies of, 32 ; effect of Court on, 93 Wages system, the, 76, 77, 150 Webb, Sidney, 132, 150 Weekly hiring, loi, 102, 129, 130 Weights of loads, 47 Western Australia, Arbitration Court in, 31 Whitley Report, 105, 146, 147 Women, wages of, 11, 49 ; hours of, 89 ; influence of, 148 PRINTED IN GREAT BRITAIN BY BILLING AND SONS, LTD., GUILDFORD AND ESHER UCLA-Young Researcn i-iu.o.r HD5630 .H53 y L 009 537 698 4 SOUTH t.KN fe5rv'-^l^^v^f ., UNIVEHSITY OF CALIFORNIA, LIBRARY, 4-OS ANGELES. 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