NDER this name there appeared in this REVIEW in November,

UNDER

1915, an article written by me at the instance of the editor. It gives in a summary form the results of my experience as President of the Australian Court of Conciliation and Arbitration. As the article seems to have attracted some attention in America, and also in Great Britain and Australia, it may not be amiss to report progress after three more years; especially now that a national labour administration has been created in the United States in the charge of my friend, Professor Frankfurter.

This Court has not to deal with mere theories. It does not work in the air in the cloud-cuckoo town of Aristophanes. As I said in 1915, the Court

"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."

I propose to make this article supplementary to the former. But, for the benefit of those who have not read the other, I may say that the new province to be rescued from anarchy is that of industrial matters. A court has been constituted under the Australian federal constitution by virtue of a power to make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of

any one State." Each of the six states of Australia has tribunals, wages boards or courts, for industrial matters; but this Court was created for disputes which pass beyond the boundaries of any one state, disputes which cannot be effectually dealt with by state laws. In recent years there have been proposals in the direction of enlarging the powers of the federal court, and even of altering the constitution by committing to the federal Parliament the whole subject of labour; but I address myself to the court as it stands under the existing constitutional power.

It is a court for compulsory arbitration - in the sense that its awards are binding as law upon the parties. I have found that in Great Britain as well as in America the idea of compulsory arbitration is repugnant to the leaders of the working class, whereas in Australia, facing different stars, the opposition comes principally from the class of employers. In the earlier years of my work I received through the post many insulting anonymous letters, most of which I have kept as curiosities, and nearly all of these letters came from partisans of the employers. The party with a stronger economic position naturally wants to be free to act as it thinks fit; it objects to be bound by orders from outside. The act makes it the first duty of the Court to endeavour to get agreement on the matters in dispute and to exercise its compulsory powers only when an agreement is impossible; but when the party with a stronger economic position refuses to agree on lines of justice instead of economic strength the Court has to interfere by dictating terms such as would, in its opinion, be just in a collective agreement. The ideal of the Court is a collective agreement settled, not by the measurement of economic resource, but on lines of fair play. The stronger economic position is usually held, of course, by the party which has the right to give or withhold work and wages, the means of livelihood. It is usually held by the employers. This is the reason why the awards necessarily operate more frequently as a restraint upon employers than as a restraint on employees.

I desire to deal in particular with the constructive part of the work of the Court. The awards have to be framed on some definite system, otherwise in getting rid of one trouble you create many others. Some years ago a friend who had had on one or two occasions the function of reconciling parties to industrial troubles

told me that he had found it best to put the leaders into a good humour by getting them to dine together with him and to have a friendly chat. A veteran leader of the shearers has written a book in which, with much naïveté, he recommends in the first place that leaders of workers in conferences with employers should first adduce the solid arguments, and then in the last resort make a powerful appeal on behalf of the women and children - "give them the women and children hot." Neither of these courses is permissible for the Court which has to deal, not with single isolated disputes, but with a series of disputes. The awards must be consistent one with the other, or else comparisons breed unnecessary restlessness, discontent, industrial trouble. The advantages of system and consistency in the awards are increasingly apparent, as parties, knowing the lines on which the Court acts and understanding its practice, often now make agreements in settlement of a dispute in whole or in part without evidence or argument.1 The agreement if certified by the President and filed in the Court is deemed to be an award.2

In the previous article I have set forth a goodly number of propositions laid down by the Court, and on looking through them I cannot find that any of them have been overruled or set aside. They have been amplified and applied to varying circumstances, and new propositions have been added. The claims for the assistance of the Court have been so numerous that my colleagues of the High Court have come to my assistance, and in particular Mr. Justice Powers, acting as Deputy President. Although Mr. Justice Powers has had an absolutely free hand in dealing with the disputes which he undertakes, I do not think that in any essential or substantial point he has seen fit to reject any of the propositions; but as I must take the sole responsibility for any statements made in this article I confine myself to a review of the position as it stands under my awards.

MINIMUM WAGE

The Court adheres to its practice of dividing the minimum wage awarded into two parts the "basic wage" the minimum

1 c/– Engine-drivers, 8 Com. Arb. 206 (1914); Tramway employees. 9 Com. Arb. 208 (1915); Marine stewards, 10 Com. Arb. 539 (1916).

2 § 24.

to be awarded to unskilled labourers on the basis of "the normal needs of an average employee regarded as a human being living in a civilised community"; and the other, the "secondary wage" the extra payment to be made for trained skill or other exceptional qualities necessary for an employee exercising the functions required.

3

A curious controversy arose in 1915 as to the effect of awarding a minimum rate. The act allows the Court to prescribe a minimum rate, and does not mention a maximum rate; and one would have thought it sufficiently obvious that there is no breach of an award on the part of a worker if he decline to take employment at the minimum rate prescribed. The contrary view, however, has been hotly urged, and some partisans of the employers, newspapers and others, have gone so far as to call it a "strike" when men refuse to accept work which is offered at the minimum rate. In Webster's Dictionary "strike" is defined as "the act of quitting work; specifically, such an act by a body of workmen done as a means of enforcing compliance with their demands made on their employers." But our act is clear on the subject. According to section 4, "strike" includes the total or partial cessation of work by employees acting in combination as a means of enforcing compliance with the demands made by them or other employees on employers. The question first arose in connection with "special cargoes" in the case of the waterside workers (called, I believe in America, "longshoremen "). These men were casual labourers hired by the hour. They turned up at the wharf when a vessel arrived and the foreman made his selection. The minimum rate prescribed was 1/9d. per hour. The union had claimed that wheat should be treated as a special cargo so that the wheat carriers should be entitled to a minimum rate of 2/- per hour. The Court had refused this claim, as there seemed to be no sufficient difference between wheat and other commodities for the purpose of a minimum rate. But it appeared that certain members of the union had adopted the practice of following the wheat ships from north to south, and having acquired a certain dexterity in the handling of wheat, had succeeded with some employers in enforcing the payment of 2/- per hour. Under the exigencies of the war the

3 § 40.

various wheat states had formed wheat pools, and the state governments were quite willing to pay the extra third per hour in order to get the services of these men in loading the ships for export to Great Britain; but they did not like to pay the extra third in the face of the decision just given by the Court. The Court reassured the employers of the wheat pool thus: 4

"It is not necessarily an unjust extortion for a man or a class of men who make wheat-carrying a speciality, to demand more than the minimum rate for his or their services. It is quite in harmony with the principle of freedom of contract subject to the minimum wage that an employer should seek by extra wages to attract men, who, as he thinks, will give him extra speed and efficiency. The device of a minimum wage will soon prove to be a bane instead of a blessing if the position be perverted as the arguments tend to pervert it. I can only say plainly that there is no breach of the award or impropriety in a man refusing his services in loading wheat unless the employer pay him more than the minimum. It is all a matter for contract."

The extra third was paid. The wheat was loaded and carried to the Allies, while at the same time no obligation was imposed on all the exporters for the term of the award to pay a minimum rate of 2/-.

The doctrine, however, which now appears to be a mere truism, was attacked by certain newspapers and employers in a tirade of abuse. The men, it was said, were actually encouraged by the Court to "strike" for higher wages. Even if the legal position were clear the Court was not justified in stating it, in suggesting higher demands, and so forth. However, I took the first opportunity of stating a case on the subject for the opinion of the High Court; and the High Court, by a unanimous decision, upheld the doctrine.5

It would, of course, be an astounding position if, while the employer remains free to give or to refuse employment at the minimum rate, the employee were bound to take employment at that rate. The employer has the formidable power of refusing to give work to any particular man, the power even to put an end to all his own business operations; why should not the employee be free to refuse to take work? A minimum rate is in effect a restraint on

4 Waterside workers, 9 Com. Arb. 315 (1915), 10 Com. Arb. 1 (1916).

5 Waterside workers, 21 Com. L. R. 642 (1916).