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Possibly existing political situations have modified

the desire of the party to introduce this reform, (27) Before the foundation of the Commonwealth, it was

customary to refer to the several States of Australia as Colonies. Since then, the wording of the Federal Constitution has imposed upon them the name of States. I have endeavoured to follow this terminology throughout this essay. It is undoubtedly confusing to other than Australian readers, and it would seem to be wiser for the sake of international usage to substitute for the ambiguous word “ State ” in this

connection the apter expression “ Province.” (28) Queensland was not represented, and Western Aus

tralia's representatives were chosen directly by its

Parliament. (29) Socialism As It Is, by W. E. Walling, p. 91. (30) For discussion of this policy, see the other chapters

of this book. (31) This question - is discussed in a paper on “Industrial

Arbitration in Relation to Socialism,” by F. A. A.
Russell, which is published in the volume, Trade

Unionism in Australia. (32) The People, Sydney, 3rd' May, 1917. (33) Direct Action, Sydney, 30th June, 1917. (34) T'he Brisbane Worker, 20th February, 1909. (35) A French critic makes a similar criticism about the

Political Life of New Zealand. " What the New Zealanders most peed, in fact, are principles, convictions, and reasoned beliefs" (André Siegfreid,

Democracy in New Zealand). (33) State Experiments in Australia and New Zealand, Vol. I.,

pp. 50, 63.

CHAPTER V.

THE JUDICIAL REGULATION OF INDUSTRIAL

CONDITIONS.

By Mr. President Brown.

Historical.

For some time Australia and New Zealand have been engaged in a series of experiments which involve a wide extension of the “sphere of the State" in relation to the control of industrial conditions. The systems most in vogue in Australia involve a combination of Wages Boards and Courts of Industrial Appeal or Arbitration. The structure and functions of the Wages Board are familiar to students of industrial progress. Courts of Industrial Arbitration have an appellate jurisdiction with respect to determinations of Wages Boards, and an original jurisdiction in industrial matters generally. Both the boards and the courts are parts of a system of control (as distinguished from the ownership or management) of industry by organised public authority. In earlier times the wages boards aimed mainly at the elimination of sweating; but the system of public control of industrial conditions now aims at securing justice as between employers and employees by a progressive expansion of the Rule of Law.

The incalculable importance of the movement is indicated by the title of an article written by Mr. Justice Higgins, President of the Commonwealth Court of Conciliation and Arbitration, and published in the “Harvard Law Review,” November, 1915. The article is entitled, A New Province for Law and Order. It rarely happens in the history of mankind that the full importance of a great movement

by

an

is realised till long after its initiation. Certainly, I think few people ir. Australia realise the immense significance of the effort of the organised community to determine industrial conditions judicial or quasi-judicial tribunals. The causes which

tell
for

increasing importance of questions relating

to the organisation of industry, and the fact that the relations between citizen and citizen which call for determination are more and more economic, imply that the New Province for Law and Order is a province likely to become one of ever growing, if not of supreme importance. Criminal law and civil law will remain; but alongside of them will be the great subject of Industrial Law. This law is, in point of faci; now being evolved out of a long series of conflicts and disputes relating to industrial matters. The process, in part, is reminiscent of a passage in which Mr. Manson eulogisez Dr. Lushington for his great work in the development of our Maritime Law. " The rough-hewn block of maritime custom is chipped and fashioned with careful forethought, and fitted into the great structure of British Law."-Builders of our Law, 2nd ed., p. 46. But I am now seeking to emphasise not the nature of the process but its importanca, and the responsibilities associated with it. Even if we were to disregard for the moment such mul.. titudinous issues between employer and employee as those relating to hours of work, sanitation in its widest sense, conditions of boy labor and apprenticeship, etc., etc., and were to suppose industrial courts to deal only with the single question of wages, the fact would remain that in the particular cases which come before a judge of an Industrial Court, the judge has to settle issues which, when capitalised, involve hundreds of thousands of pounds, and sometimes millions. recent case, a trade union secretary objected that the legal expenses incurred in the course of the hearing had been £200. I pointed out to him that the statement of claim of his organisation,

In a

as to wages alone, had really amounted to a claim for £300,000. He answered—“Yes, but we did not get it." My rejoinder was, ' No, you didn't get £300,000; you only got £240,000." Of course, sometimes it is the other way. I have had on occasion to reduce the rate of wage. But whether an industrial judge decreases or increases the rate of wage, though the amount seems small as regards the weekly earnings of a particular employee, the total result on the yearly earnings of the employees in the industry generally is apt to attain figures of such dimensions as to impose upon the judge :2 responsibility of the gravest character.

It is not, however, the money aspect that is necessarily the most important aspect of the movement towards the public control of industrial conditions. The rapid progress of modern industry, the increase in the output of the worker (whether due

mechanical inventions, scientific research, improved business organisation, or other causes), and the increased complexity of modern industrial organisations, necessarily create a thousand new problems, of which many must be settled either by an appeal to law or by an appeal to might. After all, such weapons as the strike and the lock-out are but forms of an appeal to might. The settle. ment of industrial differences by a Wages Board or Industrial Court involves an appeal to law. These differences have been so numerous, and are so certain to increase with the progress of society, that the organised community ought to deal with them according to reason and justice through the action of impartial tribunals.

to

Industrial Legislation and Industrial Law. The industrial legislation of Australia is scarcely more than a provision of machinery for the purposes of settling industrial disputes or dealing with industrial matters. The term Industrial Law" may be used in the wide sense to include both the legislation which provides the machinery, and also the principles which such machinery from

time to time formulates. The latter sense of the term, however, appears to me the sense most appropriate, and the subject matter is also of greater interest to the general reader.

I propose, therefore, to limit myself in the present chapter to Industrial Law in the sense indicated. But further limitations follow almost as a matter of course. I have not space to speak of the work which has been done by Wages Boards, is being done, and I hope will continue to be done. The settlement of industrial conditions by such bodies is necessarily of a more or less empirical, if not opportunist, character. To arrive at the code of Industrial Law one has to pass beyond Wages Boards' determinations, and beyond the important functions discharged by Industrial Courts acting as Tribunals of Conciliation with a view to effecting an amicable settlement of disputes. One must go directly to the awards of Industrial Courts in cases which have been heard before them, either in their original or appellate jurisdiction, with the usual judicial procedure as to argument by counsel and the evidence of witnesses. Further, there are several Industrial Courts in Australia, and. while it would be uncharitable to suggest that there are many distinct codes of Industrial Law, yet the fact remains that some divergencies exist between the principles underlying the awards of the different courts. Limited as I am in the matter of space, I shall content myself with a statement of the general principles evolved or adopted in the particular court over which I preside.

Scope of Industrial Conditions. In the South Australian Industrial Arbitration Act of 1912, the term “industrial matters is defined in a sense so wide as to include almost every conceivable question likely to arise between employer and employee. It includes, for example, wages, hours of employment, sex, age, qualification

status of employees; apprenticeship;

as

or

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