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.53 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 recommendations 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." 54 For this reason preference was refused in the case of shearers, etc.; 55 in the case of seamen; 56 in the case of builders' labourers.57 Yet the Court recognizes the 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

53 Sec. 40.

❝ Engine-drivers, 5 Com. Arb. 9, 25 (1911); 7 Com. Arb. 132, 147 (1913); Tramways, 6 Com. Arb. 35, 47 (1912).

difficulty of the position - every man who is not too much of a partisan to look sometimes at the other side of the hedge. 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 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 consideration 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, &c., 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 nonunionists 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." 58

The only case in which the Court has ordered preference is the case of a tramway company which deliberately discriminated against unionists and refused to undertake not to discriminate in future.59 It is to be observed that the Court is not given power by the Act to order that the employer shall not discriminate against unionists in giving or withholding employment.

The imposition of a minimum wage, a wage below 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 employee. 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." 60 Low wages are bad in the worker's eyes, but unemployment, with starvation in the background, is

worse. The position was put luminously once, as well as with unconscious humor, 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. part; that ends the whole. . . . all struggles, not legislation." 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 starved." 61 If the Court did nothing else than drag such theories into the light of day, and into free discussion, it would be doing good service to the community. 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 conditions 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.

If we cannot agree, well, we will Love is the power which will end Other respondents pin their faith,

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 puts 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 Conciliation 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.

61 Engine-drivers, 5 Com. Arb. 27, 28 (1911); Ship's Officers, 6 Com. Arb. 6, 18 (1912); Marine Engineers, 6 Com. Arb. 95, 101 (1912).

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 proceedings cannot be otherwise than lengthy, as the 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; 62 570 in the case of the Builders' Labourers; 63 650 in that of the Fruit-growers; 64 and 2549 at least in that of the Shearers.65 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 undertakings 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.6 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 in the trade. In one case, that of the boot-factories,67 the difficulty was met by the employers and employees 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 68 enabling the Court to appoint a board of reference, assigning to it the function of determining

Com. Arb. 1 (1910); Builders' Labourers, 7 Com. Arb. 210, 235 (1913).

68 Sec. 40 a.

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 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." 69 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,70 but the Court cannot generally help them. Sometimes, however, 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."1

There are two important powers of which the Court has frequently availed itself, or threatened to avail itself, with very excellent effect.72 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"; 73 and (b) the power to vary an award. Sometimes, the employees, though seeking an award, have taken up an obstinate attitude, intimating 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.75 It cannot be for the public interest

69 Engine-drivers, 7 Com. Arb. 132, 144 (1913).
70 Seamen, 6 Com. Arb. 59 (1912).

"Engine-drivers, 7 Com. Arb. 132, 135 (1913).
72 Fruit-growers, 6 Com. Arb. 61, 78 (1912).
Tз Sec. 38 h.

74 Sec. 38 0.

Gas Employees, 7 Com. Arb. 58, 62 (1913); Broken Hill Mine, 3 Com. Arb. 1, 20 (1909).