CAPITULO III. MARCO TEÓRICO
3.4 FACTORES QUE INFLUYEN EN LA QUÍMICA DE LA LLUVIA
have assumed that the new proposals of 1926 were largely the
work of Latham, the new Attorney-General. However, Bruce took
such a personal interest in arbitration that he went to the
trouble of drafting the letters himself and he sent them a
week before Latham became Attorney-General. Moreover, he was
seeking the views of outside organizations when there ?/as already
an Arbitration Bill, the product of months of preparation,
printed, and ready to be submitted to Parliament.^
Thus the t?70 seemingly irinocuous letters of 8th December, 1925, show conclusively that Bruce was dissatisfied with the 1925 Arbitration Bill and was anxious to reconsider the wnole subject of industrial arbitration, let Bruce on
max-y occasions committed himself to granting the Couxt judicial power, reducing overlapping of awards, extending penalties and Droviding for umion ballots. The objects of the Bill were
completely acceptable but in one respect it was a conspicuous lail'Jire: if passed, it would perpetuate both the division of authority between the Commonwealth axid States, with the resul- ting duplication, inconsistencies, conflict and uncertainty, and also tne frustrating cons^itutional limitations on the exercise of the Commonwealth's industrial power. The failure was serious, but in the middle months of 1925 it was ujider- standaole: Bruce would not consider restoring complete industrial power to the States, wnile the Nationalist and Country Parties, all the employer organizations, and Moore and jyason strongly opposed seeking complete industrial powers for tne Commonwealth. By the end of 1925, however, Bruce was
^p :^tor^ev-Cener8l's Department had assumed that, with he re-election of the Covernment, the 1925 Arbitration
11 Roor he inxroduced in Parliameni. ine Bill i.
Bill woula soon oe inxroaucea in i^ar^: ^ _ was T^rinted on 2 Dec. 1925. (C.A.O. A26o:) Aroixra-
far more critical of a Bill which, in the most fundamental matters, preserved the chaotic status quo.
The change in Bruce's attitude in the last months of 1925 can only be explained hy the mounting problem of the 44 hour week, a problem which became critical in the first half of 1926. In 1920 niggins had granted the 44 hour week
to the engineering and timber industries. Previously, tri- bimals had generally awarded the 48 hour week, although some workers, such as the men in the mines and the smelters, were required to work fewer hours because of the hardships faced in their industries. After Higgins' resignation, the Full Arbitration Court restored the 48 horn- week, with some
exceptions, in the engineering and timber industries and re- fused all further applications for the 44 hours, on the grounds of worsening economic conditions. In New South Wales a Labour C-overrjment had put through legislation for the shorter week in 1920 but it was quickly repealed by the Fuller Government. In Jyjie, 1925 J Labom" returned to power and within a few
months had passed a Forty Fou-r Hours Act, thereby redeeming its foremost election pledge. The Queensland Government also introduced the 44 hou:r week in 1925. Overlapping awards were a grave problem; now the proolem was aggravated by Federal awards coriflicting with State laws, m-iichever prevailed there was boujid to be widespread discontent and industrial
3 either men working under Federal awards Y/ould work inresx.
different hours, depending in which State they lived, or else men in New South Wales and Queensland would work different hours, with the unfortunate men under Federal awards working an extra 4 hours. The legislation of the two Labour Govern- ments raised other problems. It seemed inevitable that pro-
duction costs would be increased in New South Wales and
Queensland and, with freedom of interstate trade, this would place industries in the two States at a serious disadvantage if they faced competition from industries in Victoria and the other States. Finally, the New South Wales election showed that the shorter working week was an effective vote-winner and there would soon be pressure on the other State Govern- ments to legislate on the subject. Working hours would
dominate every State election and the Nationalist Party would start with a handicap every time. There would be no stability, for the length of the working week would vary according to the party in power, as New South Wales had already shown.
Bruce was therefore faced with the daunting prospect of intense industrial conflict, which in 1925 had been confined to shipping, spreading to all the major industries in 1926 and intensifying as the other three Labour Governments followed
the example of the Lang and McCormack Governments. The position would still be serious if the State tribunals, rather than the Governments, began to award the 44 hour week. (The Western
Australian Arbitration Court did so in 1926.) Conflict would be avoided for the time being if the i^'ederal Court granted the shorter week, but this would be interpreted, whether justifiably or not, as a surrender to pressure at the State level. The only real solution was a uniform working week for the whole of Australia determined by a single body. During the 1925 election campaign Bruce and Page began to proclaim the need for a conference of Commonwealth and State Arbitration Court judges which would determine the number of working hours on the basis of the health and productivity of the workers and the state of the economy. Bruce still referred publicly to the need for such a conference in April, 1926.^ However, there were obvious practical difficulties. Victoria and Tasmania had no arbitration courts and, more importantly, the decision of the conference would only have moral force; the State Governments would still be free to legislate for a shorter or longer working week, either directly or by arbi-
tration laws which would bind the State tribunals. In addition, some of the State arbitration judges were believed to show as
little impartiality as Lang himself.^
There was nothing in the 1925 Arbitration Bill which would prevent the Commonwealth judges meeting the State judges
to determine a uniform working week. Bruce's dissatisfaction with the Bill suggests that by December, 1925, he felt that much stronger measures, which would not depend on the goodwill of the State Governments, would be needed to cope with the crisis that was looming over working hours. The events of April and May, 1926, confirmed this belief and provided the backgroujid to the detailed proposals which he worked out with Latham and his advisers.
The 44 hour week came into operation in New South 7/ales on 4th January, 1926. A large number of Federal unions
instructed their New South Wales members either to work the shorter week, by staying at home on Saturdays, or to work the usual 48 hours, but to claim 4 ho'urs overtime pay. This policy caused a great deal of friction and confusion but there
1. The arbitrators who were most frequently condemned as Labour ^artisans were A.B. Piddington, who was appointed sole Irdustrial Commissioner in New South Wales in April, 1926, and W.J. Lunstan and W.N. Gillies, who were
appointed Lay Judges of the Queensland Board of Trade and Arbitration in October, 1925. Dunstan had been Secretary of the Queensland branch of the A.W.U. 1913-25 ^id Gillies had been Deputy Premier 1921-25 and Premier of Queensland 1925.
was no outright confrontation between employers and unions, pending a decision of the High Court on whether the Federal award or the State law should prevail. On 19th April, 1926, the Co'ort gave its famous judgement in the case of Cowhurn Y. Clyde Engineering Company.^ Dixon appeared for the
employers and the Court accepted his argument about the true test of inconsistency of laws, rejectin.^ the V/hybrow doctrine that the test was whether each law could be obeyed without disobeying the other. The Court declared that a Federal award became part of the law of the Commonwealth. The decision of the Federal tribunal was therefore final and inconsistency depended on the intention of that tribunal. If it entered a field of legislation and showed its intention to regulate the conduct of the parties in respect of the
subject matter of the legislation, its a¥/ard was to prevail over both State laws and awards. If the Federal Court awarded 48 hours, it had thereby shovm its intention to regulate the working hours of the parties concerned, and no State authority could grant the same parties 44 ho^jjrs.
The High Court's decision in the Clyde Engineering case was welcomed by the employers, as it removed the worst form of overlapping. Employees could no longer work under a Federal award and a State award, enjoying the benefits of
both. Once they were bound by a Federal award they would have
to relinquish their State award, in so far as it was incon- sistent, and the employers quickly realized that if they registered under the Commonwealth Arbitration Act they could almost always ensure that their workers remained bound by Federal av/ards. The employers bound by Federal awards would also be free from many of the onerous industrial laws intro- duced by State Labour Governments. Justice Powers, who was very critical of the decision, said that Federal awards would be sanctuaries for the employers and the unions would leave the Federal Court in great numbers.^ To some extent this was an accurate prediction. At least in New South Wales,
employers suddenly became defenders of Federal arbitration, while several unions sought to withdraw from the Federal Co'ort, especially when A.B. Piddington became State Indust- rial Commissioner. However, the Federal Court allowed very few ujiions to leave its jurisdiction.
While the Government could see long-term benefits arising out of the Clyde Engineering Case, its immediate effect was to convince the Government that differing working hours made industrial peace impossible. The day after the
Co^art's decision was given union leaders in New South Wales instructed their members to work only 44 hours. The metal 1. 23 C.A.H. 386.
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