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both sides, and, with the exception of one employer,
there was a unanimou-s opinion that the Conciliation
and Arbitration Act is a sound one, an>B;is-
lation in New Zealand : The Conciliation and Arljitration
Act," p. 8. With regard to the witnesses examined by the
Commission the following quotation from Clark, p. 1246, is
interesting : —

" Business men went out of their way in three cities to
say that the publi'.ity given their testimony prevented r-m-
ployers from testifying or stating their views frankly before



COMPULSORY. 167

the Australian Commissions sent over to investigate the
working of the Act, lest they thereby injure their business."
The value of the opinions expressed by this Royal Com-
mission is gz'catly reduced by the fact that they are very
one-sided. The only thing with which the Victorian Com-
mission can be compared is the " Tariff Reform Commission,"
for both were appointed to demonstrate the need of some-
thing, in the value of which every member of the Com-
mission firmly behoved before the investigations were com-
menced. The last Victorian Government, wishing to
show the value of compulsory arbitration, sent a Com-
mission to New Zealand and New South Wales, every mem-
ber of which probably firmly believed in compulsory arbitra-
tion before he was appointed, otherwise we should hardly
find nine Commissioners unanimously signing a report,
which is out and out favourable to compulsory arbitration,
as the following passage from the report (p. xxiii) will
show : —

" Despite certain defects in detail, which have been re-
vealed by experience, the New Zealand Conciliation and
Arbitration Acts remain to-day the fairest, the most com-
plete and the most useful labour law on the Statute-books
of the Australasian States. And it is, on the whole, a wise
social law, on the one hand protecting the fair-minded em-
ployer from the dishonest competition of the sweater, who
keeps down the cost of production by paying miserably low
wages, and, on the other hand, the toiling thousands, to whom
a rise in wages of a few shillings a week when an industry
can fairly bear it, often means the difference between gripping
poverty and comparative comfort. But beyond that it has
the great merit of providing effective means for preserv-
ing unimpaired the industrial relationship of employer and
worker, in forbidding the miserable v,arfare, which displays
itself in strikes and lockouts, and the stem reprisals which
too often accompany them ; while ample opportunity is
given for conciliatory methods of settling disputes before
compulsion is invoked."

In spite of the compulsory arbitration law being the
" fairest, the most complete and the most useful labour law
on the Statute-books of the Australasian States," the present
Victorian Government has shown the value it attaches to the
report of this Commission, by carefully avoiding to follow
its recommendations.



16S CONCILIATION AND AKBITUATION.



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COMPULSORY 169

great majority of investigators go to show, that, with
certain exceptions, New Zealand employers as a class
are not in favour of compulsory arbitration. What
is probably the best evidence we have on this subject
are the answers to a set of questions sent by the
employers' associations in Wellington, Christchurch
and Dunedin to their members.* The table given
on page 168 is quoted by Mr. Clark and he adds the
following comment to it :f

" About thirty replies were received in each city, the
answers frequently being from the secretary of an in-
dustrial union of employers, voicing the opinion of all
the members of the society, so that the actual value
of each reply varied, some representing individual and
some collective opinions. But in no instance, so far
as the writer could learn, were opinions favourable to
the Act indorsed by more than a single individual. Upon
numerical rating, therefore, the balance of opinion ad-
verse to the law as it stands at present, would be con-
siderably heavier than it appears in the table."

It will be seen that the table is very complete,
containing answers to several questions dealt
with above. The majority of the answers are in
every case unfavourable to compulsory arbitration,
and whether these gentlemen could produce definite
proof of their assertions or not, it clearly shows that

* A similar set were sent in Auckland, but the tabular
statement is omitted, as the exact figures could not be
obtained, but the repUes averaged about the same as those
from the other cities, I have also before me a detailed set of
answers to a series of questions sent out by the Otago Em-
ployers' Association. The same opposition to the Act as
that indicated on page 168 can be clearly gathered from them.

t Industrial Conditions in New Zealand, p. 1246.



170 CONCILIATION AND ARRITHATION.

employers as a class are dissatisfied with the Act, and
it would be very surprising to find that they were not.
Turning from the attitude of employers to
that of employees, we find the position is almost
exactly reversed. Taken as a whole, the workers are
strongly in favour of the Act, and the explanation
undoubtedly is, that the decisions have almost always
been in their favour. Whenever the contrary has
been the case, much dissatisfaction has been expressed
by the employees, and this tends to make one very
doubtful as to what would happen, if, owing to a
depression in trade, a whole series of awards went
against them. The question of enforcing agreements
against the workers has so far been put to no serious
tost, and it is just the same with regard to the pro-
hibition to strike whilst proceedings are pending.
In this connection it is interesting to note what a
New Zealand gentleman, Mr. 0. T. J. Alpers, against
whom, so far as I know, no imputation of bias can be
made, has written on this subject.*

" It is true that an employer has but to lodge a dispute
and the men are bound to continue to work, till the
dispute is ended. But how bound ? The property of the
Union is liable to attachment and the members are in-
dividually liable up to £10 if they disobey. But the
chances are the Union has scarcely any funds, and the
remedy against the individual workmen is, for obvious
reasons, purely illusionary."

There can be no doubt that the future success or

* The quotation is from tlio chapter written by Mr. Alpers
on Compulsory Arbitration in Irvine and Alpers, Progress
of New Zealand in the Century, p. 349.



COMPULSORY. 171

failure of the Act depends largely upon the attitude
of the workers, and from the indications of this
attitude, which have been given in the past, the
prospects of the success of the Acts in a period of
depression is none too rosy. M. Andre Siegfried is
distinctly of this opinion and Judge Backhouse, whilst
in favour of compulsory arbitration, hints gently at
the same thing, when he writes towards the end of
his report :

" If the award is to be accepted only when in favour
of one class, if it is to be flouted when against that
class, the Act had better at once be ^^aped out of the
statute books."

New South Wales*— The Industrial Arbitration

* The Industrial Arbitration Act, 1901, is published separ-
ately as a New South Wales Government paper and will
also be found in the Fifteenth Annual Report of the New
York State Board of Mediation and Arbitration, 1901, and in
the Bulletin of the United States Department of Labour,
No. 40. To understand fully the difference between the
New South Wales Law and the New Zealand Law, it is neces-
sary to read the Report of the N.S.W. Royal Commission
on the Working of the Compulsory Conciliation and Arbitra-
tion Law in New Zealand. The only investigation mto the
working of the Act is that of the Victorian Royal Comims-
sion, which was made after the law had been in existence only
a few months. Other ^Titings bearing on this Act are : B. R.
Wise • What I expect from the New South Wales Industrial
Arbitration Act, Review of Reviews (Australia), December,

1901 and The New South Wales Industrial Arbitration
Act, National Review, August, 1902 ; W. P. Reeves : The
New South Wales Industrial Arbitration Act, Economic
Journal, September, 1902, and State Experiments in Aus-
tralia and New Zealand, Vol. II. ; F. R. Sanderson, Industrial
Arbitration in New South Wales, Juridical Review, December,

1902 ; and Dr. CuUen's article against the Act m the Untted.
Australia, November, 1901.



172 CONriLIATION AND ARBITRATION.

Act, 1901, establishing compulsory arbitration in
New South Wales, was passed after the Report of the
New South Wales Royal Commission had been
published. In many ways the act closely resembles
the New Zealand law, but there are a few important
differences, and it is only these to which I intend
to draw attention in this essay. In the first place,
there are no boards of conciliation in New South
Wales, and all disputes are referred directly to
the Court of Arbitration. This alteration of the
New Zealand system can be traced to Judge
Backhouse's Report. The New South Wales Court
is authorised to establish by its awards "common
rules "for the whole colony and apparently does so
at every opportunity ; on the other hand, though
the New Zealand Court has power to make
Colonial awards, it uses this power but slightly.
Another distinguishing point of the New South
Wales system is that the registrar has power to
submit a reference to the Court, even against the
will of the contending parties. Perhaps the most
interesting section of the whole Act is Section 34,
which makes a strike or lockout a misdemeanour,
punishable by a fine not exceeding £1,000, or
imprisonment not exceeding two months.

With regard to the working of the Act, sufiicient
time has not elapsed for any definite judgment to be
made. It appears evident, however, that some
harm has been done, and the prejudicial effects of
certain judgments under the Act on the glass-blowing
industry, are clearly shown by the loUowing passage



COMPULSORY. 173

takon from a long and detailed article in the Sydney
Morning Herald, July 22nd, 1904: :

" To-day, instead of there being seven flourishing
factories only three of the smallest remain, and 50 per
cent, of the bottles used in Sydney are imported cheaper
than they can be made locally, despite a handicap of 50
per cent, in freight and duty."

The same observation with regard to the attitude
of the employees towards the Act can be made in New
South Wales as in New Zealand.

" The arbitration law in New South Wales has been
in operation over a year, and it has been found, that
so long as its decisions are in accordance with the wishes
of the employees, there has been no resistance ; but
whenever a decision has been adverse to them, they have
shown a spirit of resistance."*

On one occasion already, the Newcastle (N.S.W.)
colliers refused to work in defiance of a decision of
the Court, but they submitted unconditionally,
before proceedings were taken under the Section
making strikes misdemeanours. This attitude of
the workers hardly promises well for the future.

As far as one can judge from reading through the
Industrial Arbitration Recordsj the cases brought
before the New South Wales Court are very similar to
those in New Zealand. One recent judgment is

* The passage quoted is from the American Consular Re-
ports, May, 1904.

t These records are got up very similarly to the ordinary
law reports. The indexing, headnotes and method of cita-
tion all tend to make the resemblance more striking.



171 CONCILIATION AND ARBITRATION.

worth mentioning. The case is that of in re Ranse-
lius* and the head-note is as follows : —

*'A master of a foreign ship trading to this port is subject
to the jurindiction of the Court of Arbitration, and is
liable to a penalty, if ho employs his crew in discharging
cargo, contrary to the terms of the wharf-labourers*
award."

In this particular case the Court fined the master
of an American ship X.0O.

One cannot but be of the opinion, that the Court
would do better to restrict its activity to regulating
home industries, instead of doing its best to draw
down upon itself international protests by interfering
with foreign shipping. The author of the Act once
defined the court as " a sort of elastic and self-acting
Factory Act which will assimilate the conditions of
employment in each trade to those which prevail in
the best conducted establishments." f Even this
definition does not seem broad enough to cover all
the self-imposed activities of the court.

Other Countries. — A compulsory arbitration law
was enacted in Western Australiain 1900, and in 1902
another law, the Industrial Conciliation and Ar-
bitration Act, 1902, was passed. Throughout, this
latter Act closely follows the New Zealand law, but
there is little evidence forthcoming \vith regard to its
working, and what little there is, is contradictory.
From a conversation I had with the Hon.W. P. Reeves,
I gathered that so far the Ac t had worked successfully.

* [1904] A. R., p. 54.

•j- B. R. Wise, The New South Wales Industrial Arbitration

Act, National Review, August, 1902, p. 895.



COMPULSORY. 175

On the other hand, a recent article* takes a much
more unfavourable view of the question :

" The Western Austrahan Chamber of Mines declares
that, far from blending the interests of the employer
and the workers for mutual good, it {i.e., the Compulsory
Arbitration Act) has set up a continuous process of
irritation, which is assuredly driving these two factors
wider apart. The Council of the Chamber say, that
striking illustrations of the absolute futility of the AcfS
in practice is afforded by the action of the timber em-
ployees in the South West District (W.A.), andtheTeralbo
Coal Mines (N.S.W.) In both cases the award was
instantly repudiated, when it operated in the slightest
extent in a manner unfavourable to the workers."

In South Australia the Conciliation Act, 1894,
provided for compulsion, but it has been a dead
letter ever since 1895, and at present there seems to
be no probability of an effective Act being passed.
In August, 1904, the labour ministry of Australia at-
tempted to pass a Compulsory Arbitration Act for
the Commonwealth. It was to apply to irfeer-state
disputes only, so that its application would certainly
have been attended with considerable difficulties.
The Act, however, as the reader will no doubt be
aware, was not passed, the ministry resigning after
suffering defeat on the subject of preference to
unionists. In Victoria the Royal Commission re-
ported in favour of compulsory arbitration on the
New Zealand system. One modification the Com-
mission suggests, is the enlargement of the powers of
the Conciliation Boards, so as to make an award for

* R. H. in the Manchester Evening Chronicle, September 21,
1904.



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Online LibraryDouglas KnoopIndustrial conciliation and arbitration → online text (page 13 of 18)