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4-240 (Text)

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addressee author,male,Royal Commission,un
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Clark, 1975
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What has been said above as to the great distinction to be observed as to the cause of strikes necessarily leads to the remark that the same distinction must be observed when treating of their cure.  All those disputes which arise from a demand on the part of employees that they should have something more, or an effort on the part of the employers to give them something less, have their origin in a conviction on one side or the other that the consideration given for labour is not satisfactory. This conviction is either well founded or ill founded, or it may have some justification, but not so much as is supposed. Obviously the thing to be done under such circumstances is to get at the truth, and in doing this it is necessary to get rid of everything that disguises the truth. It is frankly admitted that a great many disputes originate in ignorance, in mutual misunderstanding, in unfounded suspicions, in exaggerated alarms, and that very much is gained if all these disturbing accessories can be got rid of, and the controversy can be narrowed to its simple issue. No better method of dispersing the mists that surround a controversy of the sort under our consideration can be found than a friendly conference.
A very large experience has shown that the difficulty is often cleared up in this way, and reduced to such dimensions as admit of a fairly satisfactory settlement, it is this experience which leads to the conclusion that the very first thing to be done in order to promote the settlement of a labour dispute is to try the effect of conciliation. And, in using this term conciliation for the first time in this Report, it is convenient to remark here that the terms conciliation and arbitration are often employed somewhat vaguely as if they were interchangeable, and yet they really represent two distinct things. The function of any conciliation agency is to get the parties to a dispute to come to a common agreement voluntarily, without any opinion being pronounced on the merits, or any instructions given. The function of arbitration is distinctly to determine the merits and to give a positive decision to be abided by. If the declaration of such a decision can be avoided it is well that it should be, because decisions are generally more or less adverse to both parties for even splitting the difference is an equal censure upon both. But conciliation, if it is a success, allows of a friendly settlement on a mutual agreement, and leaves no opening for discrediting the understanding or the impartiality of the arbitrators. That being so, the practical question that arises is - how should this primary remedy of conciliation be applied? it may naturally be said that no fresh law, no new appointments, are necessary for the purpose. It is always possible for people who quarrel to meet together, with or without the intervention of third parties. It has been done frequently on a small scale, and also on a large scale, and with satisfactory results. In different localities too, and as respects -different trades, as is the case in England, Boards of Conciliation have been voluntarily established, have lasted for several years, have done good work and often very difficult work. But, while this is admitted, it seems to us that the work of conciliation would be greatly assisted if there were in this colony an established organisation instituted by the State, and always ready to be called into action by either of the parties to a dispute.  The evidence on this point is not unanimous, some witnesses on each side being of opinion that no good would come of any State Board. But the great weight of the testimony is distinctly to the effect that the existence of a State Board of Conciliation would have a wholesome and moderating effect. Such an institution, clothed with the authority of the State, would stand before the public as a mediatory influence always and immediately available, and public opinion would be adverse to those who, except for a very good cause shown, refused to avail themselves of its good offices.
But though, in the majority of cases, disputes will be settled by the preliminary process of having them thoroughly sifted before a Board of Conciliation, there will remain some cases in which, despite all explanation and mediation, there will survive an irreducible residuum. Under such circumstances the question arises whether everything that can be done has been done, and whether the task of settling the dispute must be abandoned. All the experience hitherto gained goes to show that this need not be. Either under the term conciliation or under the term arbitration, Boards have to a very large extent been empowered to give decisions - that is to say, have practically exercised a judicial function. When conciliation has failed, then is the time for arbitration to begin. It is admitted that in some cases decisions have been given in error, and have been practically neutralised even by the consent of the parties. But in the immense majority of cases, both in France and England, the decisions given have been reasonably equitable, and have served to settle the dispute, till circumstances altered, and raised the same or a similar question again. It is impossible to resist the moral effect of the vast body of evidence which exists on this point. It is a demonstrated fact that decisions can be given as to industrial disputes which practically solve the immediate difficulty. Adjudication, therefore, is applicable between employers and employed, and, consequently, when conciliation falls short of doing what is wanted, the resources of arbitration can be effectively brought to bear.
When this point is taken as settled, the next question that arises is whether the Board of Conciliation that is already seized of the matter shall be the adjudicating body, and in many trades this custom has been advantageously followed. The Board tries first to settle the dispute without a decision, and, if required, finally exercises its authority to 'give a decision, and this plan has met with a large degree of success. The principal objection made to it is that the persons most suitable to act as conciliators are not necessarily the most suitable to act as arbitrators, and that the two separate functions will he better exercised by two separate agencies.  Two reasons are adduced in support of this view. The first is that conciliators should be selected in virtue of their knowledge of the details of the trade in question - knowledge not so necessary for arbitrators who have to deal only with the residuary difficulty after all minor matters have been disposed of. Arbitrators, whose special work is judicial, should be chosen mainly for their judicial temperament and ability. Secondly, in a Board of Conciliation all the members but the Chairman will he chosen respectively from the two bodies of employers and employed. They will inevitably have the bias of their class, and will feel some responsibility towards their associates for upholding their class interests, and therefore at the Board will act in the mixed capacity of advocates and judges. On the other hand, it must be borne in mind that in the absence of compulsion to enforce the award it is all-important that it should be voluntarily acquiesced in, and therefore both sides should be contented with the constitution of the tribunal. It is clear from the evidence that in this colony the Trades Unions will not accept readily the decisions of any Court in which Unionism is not represented. This implies, of course, that the employer must have a corresponding representation. It follows that the Arbitration Court cannot consist exclusively of independent judges, but must consist predominantly of persons chosen to represent class interest, the purely judicial function being performed only by the umpire, who would decide when the votes were equal. It is true that the members of the Court would be chosen on account of their high character, and would be expected to he fair and impartial; still their special function is to see that their class is not wronged. Under these circumstances, seeing that an absolutely judicial Court is not possible, and that it must, to a large extent, be composed of the same material as a Board of Conciliation, the argument for having two separate bodies is weakened.
It is obvious that the reference of the dispute to a second Court requires that all the details should be gone over again and explained to a second set of persons - an expenditure of time and trouble that could only be justified by results of corresponding value. The expense of adjudication would thereby he considerably increased, and there might be some difficulty, unless that course were made compulsory, in passing the question on from the Board of Conciliation to the Court of Arbitration.
Taking all these things into consideration we recommend that, in the first instance at least, and until circumstances justify some further differentiation in the constitution of the labour tribunal, there should be only one Board, but that this one Board should be empowered in some form to discharge, as occasion may require, the double duty of conciliation and arbitration. That is to say, that its first effort should be towards bringing about a voluntary agreement between the parties, and, failing that, that the Board, or the permanent part of it, should discharge the duty of adjudication and pronounce a decision.