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•""llllill 

OFFICE OF NATIONAL RECOVERY ADMINISTRATION 
DIVISION OF REVIEW 



3 9999 06317 392 4 



REGULATION OF INDUSTRIAL RELATIONS IN AUSTRALIA 

By 
Carroll B. Spencer 



WORK MATERIALS NO. 60 



LEGAL ENFORCEMENT SECTION 
March, 1936 



OIT ICE OF KATIOHAL SECCVEHY ADUIEISTBATION 
DIVISIOIT OF REVIEW 



SEG-ULATIOIJ OF IJTDUSTEIAL HELATIOIIS III AUSTRALIA 

by 

Carroll 3. Spencer 



LEGAL EITFORCKZEITT SECTION 
March, 1936 



9750 



FOREWORD 



This report on Regulation of Industrial Relations in Australia 
was prepared by Lr. Carroll 33. Spencer, as one of the studies of the 
Legal Enforcement Studies Section, LIr. Robert S. Denvir, in charge. 

flie Acts of the Australian Commonwealth and of the State Parlia- 
ments, decisions of courts, official and unofficial articles and 
studies and the Commonweal tli and State Constitutions constitute the 
basis of this report. An effort has been made to avoid too much detail, 
although sufficient facts and explanations have been incorporated, it 
is thought, from which the background of action and the manner of pro- 
cedure may be understood. 

There is condensed herein a sufficient outline of the laws and 
decisions of the courts with reference to jurisdiction and procedure in 
the regulation and settlement of industrial matters, without including 
details which would not be valuable, from which may be determined the 
manner of dealing with the problems which arise in industrial relations 
in Australia, and from which it nay be determined whether or not there 
may be profitably adopted in the United States any of the remedies 
existing in Australia. 

This study covers the method of dealing with industrial matters, but 
excludes the causes and. nature of disputes. The issues investigated deal 
almost entirely with the methods of preventing and. settling disputes and 
regulating industrial relations. 

The problem;. of nation-'-dde regulation under the Commonwealth Con- 
stitution of Australia is the central theme of the study and such facts 
as bring regulation of industries in Australia within the circle of 
federal jurisdiction and the coordination of Commonwealth and State 
tribunals, have been discussed with the view of showing the problems 
existing in Australia as compared with the recognized problems in the 
United States, especially with reference to the limited powers of tlie 
law-making authorities of each country as far as interstate commerce is 
concerned. 

At the back of this report will be found a brief statement of the 
studies undertaken by the Division of Review. 



L. C. Marshall, 
Director, Division of Review 
liarch 7,1936. 



S750 



CONTENTS 

Page 

Foreword i 

Prefatory Statement 1 

I. Regulation since 1900 2 

A. Federation of the Colonies and the 

Commonwealth Constitution 2 

II. Trade and Commerce 5 

III. Political Parties and their Economic 

Policies 7 

A. Protection 8 

IV. Courts of Conciliation and Arbitration.... 9 

V. Appeals from Courts of Conciliation and 

Arbitration 12 

VI. Industrial Tribunals of the Six States.... 13 

A. New South Wales 13 

B. Queensland 13 

C. South Australia 14 

D. Western Australia 16 

E. Victoria 16 

F. Tasmania 17 

VII. Rates of Wages and Hours of Labor 18 

VIII, Conclusions 2l 

Bibliography 23 



9750 ~ii~ 



-1- 

BEGULATION OF IiTSUSTItlAL RSLATIOIIS I" AUSTRALIA 

The scarcity of naterial renders a discussion of this subject, 
other than in a general way, practically impossible from the viewpoint 
of gleaning information which may prove of value in its application to 
the industrial problems with which the United States is confronted.. 
Certain similarities in the organic laws of Australia and of the United 
States indicate that the results of legislative enactments and of judi- 
cial decisions in Australia, should be of value in determining the ■ 
course that may be pursued in the United States in its efforts to solve 
some of its industrial problems. However, on account of complexities 
arising from the much larger population, the number of states and the 
training, education and temperament of the people, it is apparent that, 
although the fundamental laws of the two countries bear some similarity, 
the interpretation and application of the lavrs in each country depend 
upon the facts presented in each case. 

It is to be noted that the Courts of Australia are vested with 
wider functions than are the Courts of the United States, especially 
with respect to wages and hours, due to the provisions in the Consti- 
tution of Australia, specif ically authorizing the Parliament to make 
laws with respect to conciliation and arbitration. On the whole, how- 
ever, it appears that the United States has authority to enact laws 
containing practically all the favorable features of the Lavrs of 
Australia,, and that the law-making powers, as well as administration 
of the laws, in the United States, are now as comprehensive and effec- 
tive as they are in Australia, as far as regulation of industries by 
the Australian Commonwealth is concerned. 



9750 



... ; . chapter,!. ■;. ' . 

regulations si nce 1900 

Prior to the year 1900, regulation of industrial relations was of 
little, importance in comparison to the regulations that became neces- 
sary "tinder the increase in population and in domestic and foreign 
relations and commerce. It was not until 1S00 that Australia adopted 
a form of government which nay be compared with that of the United 
States, and only from that date can information as to the manner in 
which Australia has dealt with the question now under consideration, 
"be gathered which will be of benefit. As early as 1890 the doctrine 
of a basic wage was propounded, but it was not until 1907 that a Court 
in Australia established the first basic wage, although wage-fixing 
tribunals had "^cen in operation as early as 1896. And, too, prior to 
1900, provisions were made for the regulation of other industrial 
relations, but they were all -local inrnature- and application. After the 
federation of the colonies and the adoption of a constitution, however, 
these questions were dealt with from a broader viewpoint and it is after 
this date that we find. that industrial growth made it necessary for the 
States and the Commonwealth of Australia to attempt certain regulations. 

A. ' PEDEPATIOII 0? THE COLOIIIES OP AUSTRALIA AliD THE COllIOOTSALTH 

CONSTITUTIO N 

The six colonies of Australia . r ere federated -under the name of the 
"Commonwealth of Australia" . in 1901, the Commonwealth Constitution Act 
having received Royal Assent on the 9th day of July, 1900, and the 
Proclamation of Commonwealth having been signed September 17, 1900. 

The Constitution of Australia is modeled after the Constitution of 
the United States and contains certain provisions which are couched in 
language similar to the language used in the United States Constitution 
relating to the sane subject matter. Like the Constitution of the 
United States, the Constitution of Australia vests in the Federal law- 
making power, the Parliament, the power to regulate trade and commerce 
among the several States and with other countries, and judicial deci- 
sions have followed the decisions of the United States Supreme Court in 
construing and interpreting this provision of the Constitution. 

It is interesting to note in connection with the powers of the 
governments of the United States and Australia to regulate industrial 
relations, that under the Australian Constitution the Parliament is 
vested with the power to make laws with respect to "Conciliation and 
arbitration for the prevention and settlement of industrial disputes 
extending beyond the limits of any one State", thus limiting the 
powers of the Parliament to the regulation of interstate commerce. 
Due to the fact, however, that there are only a few states in Australia 
as compared with the forty-eight in the United States, it is compara- 
tively simple and possible of accomplishment for the several states 
to enact and enforce uniform laws pertaining to the regulation of 
industry, so that the obstacles encountered in the United States in 
all efforts to regulate industry may be avoided to a very great extent. 
'The varied interests of the large number of states in the United States 
make it impossible, apparently, to have uniform state laws enacted. 



-3- 

The relationship between capital and labor in the United St.; tes is 
unlike that in Australia where labor has controlled politics and, 
therefore, has built up protections which, under the industrial and 
political conditions in the United States can not be enjoyed. Capital 
in the United States, heretofore, has exercised at least an equal 
control with labor in political natters and has directed to some extent 
economical policies which have affected the whole- nation. On the whole 
it appears that regulation of industrial relations should be more 
easily accomplished in Australia than in the United States. 

Notwithstanding the apparent simplicity of regulating industries 
in Australia as compared with the apparent complications and diffi- 
culties in the United States, the fact remains that as far as constitu- 
tional powers and judicial decisions are concerned, it is difficult, 
if not impossible, to avoid the obstacles which arise by reason of the 
provisions of the constitution limiting the Parliament to the power of 
making laws affecting "Trade and commerce between other countries, and 
among the States". 

Politics and economics are closely connected in Australia and the 
governments play a significant part in the economic life of the com- 
munity. In his article on "The Constitution and Economic Policy", 
Vol. 158, The Annals (November, 1931) K. H-. Bailey, Professor of Public 
Laws, University of Melbourne, states: 

"The Australian people have been very sensitive to the 
argument that a protective tariff enables a community 
to build up 'fair and reasonable' working conditions, 
free from the 'unfair' competition of goods produced 
by underpaid labbur. A tariff is in fact a counterpart 
of immigration restrictions". 

The Commonwealth, through its power of levying duties of excise, 
attempted to control industrial conditions and to this end, through 
the Excise Tariff 1906, imposed excise duties on agricultural machinery 
manufactured in Australia, but exempted machinery produced under ap- 
proved labor conditions. Had not this Act been declared invalid 
( The Kin g v. Barger , 6 Commonwealth Law Reports 4) on the ground that 
the apparently unlimited power of the Commonwealth must be restricted 
by reference to an implied prohibition, derived from the federal nature 
of the constitution, against trespassing upon the reserved powers of 
the states over intrastate industrial regulation, the Commonwealth 
would have been enabled to control conditions throughout the whole 
country. 

In 1909 the state governments attempted to surrender to the Common- 
wealth a portion of the purely intrastate industrial field, but the 
attempt proved abortive, and when in 1911, 1913, 1919 and 1926, the 
Commonwealth governments sought additional powers from the people, each 
referendum upon proposed alterations of the constitution failed. 
Through jtidicial interpretation the effects of the decision in the 
case of The King v. Barger , supra, have been counteracted, to a large 
degree, so that there have been vested in the Commonwealth certain 
powers which give it limited control over industries, one of which is 



Q7nn 



_4~ 

"with respect to conciliation and arbitration for the prevention and 
settlement of industrial disputes extending beyond the limits of any 
one State". This power, however, does not meet the necessities 
arising in disputes, because ttic High Court has- emphasized limitations 
of the nature and scor>e of the expedients which may be adopted for 
securing industrial peace. Under the decision in The Bookmakers' case , 
11 Comnonr.'ealth Law Reports 311, no rale can be made which will apply 
to industries as a whole, the award of an arbitrator binding only the 
actual disputants themselves. In the State Railway Servants' case , 
4 Commonwealth Law Reports 488, it was held that the Court of Arbitra- 
tion has "no jurisdiction to make an award binding state railways - 
the greatest and most important of the state instrumentalities". 
However, in 1920, the earlier decisions were reviewed, (see The Engi- 
neers' case , 28 Commonwealth Law Reports 129,) and the "true method 
of ascertaining state powers was declared to be, first, to give to the 
relevant grant of Commonwealth powers its full, natural, ordinary 
meaning, and then to attribute the residue to the state. If the Com- 
monwealth abused its powers to the injury of the states, the remedy 
was political and lay in the hands of the electors. There was nothing 
in the express words of the conciliation and arbitration power to ex- 
clude state instrumentalities from its scope, and the Railway Servants' 
case was definitely overruled". (See Australian Railways Union vs. 
Victorian Commissioners , Argus Law Reports, 37 at page 56. 

As illustrative of the jurisdiction of the Commonwealth Court of 
Arbitration, it is interesting to note that its awards override state 
laws. ( Clyde Engineering ¥orks v. Cowburn , 37 Commonwealth Law Reports 
466.) An outline of the manner in which the Courts of Arbitration and 
Conciliation were organized, their jurisdiction, etc., will be herein- 
after discussed. 



- - 

CHAPT3H II. 
tr.J £ .,::s c o:: hp.ci 

Under the Australian Constitution trade and commerce are divided 
"between Commonwealth and states. Although the sections of the Common- 
wealth Constitution follow closely the American model in respect to trade 
and commerce; there are some specific grants of power which enable the 
Commonwealth to legislate even intrastate. The Royal Commission on the 
Commonwealth Constitution remarked in 1929 that: 

"as the states of the Commonwealth are, on the 
average, larger than those of the United States 
and have their own coastlines, and as much of the 
trade rnd commerce of Australia in manufactured 
goods is in the capital cities of the states, 
which are large centres of population, and 
"between the capital city and the rest of a 
state, the -cowers of the Commonwealth Parlia- 
ment are in fact more restricted in this respect 
than those of Congress. In the United States 
it has proved in some instances so difficult to 
draw a distinction between interstate and intra- 
state commerce that Federal legislation has super- 
seded that of the states. This condition is not 
so likely to prevail in Australia, and has become 
less likely as the concentration of the population 
in the great cities of Hew South Uales, Victoria 
and South Australia has increased. " 

Section 92 of the Commonwealth Constitution provides that 
"trade and commerce and intercourse among the states shall be absolutely 
free", which has been interpreted by the High Court to mean that trade 
and commerce shall be "free from direct regulation or interference by 
state legislatures, hence this provision does not affect the control over 
interstate trade and commerce vested in the Commonwealth. " The existence 
of this section was considered as a ground for excluding the doctrines 
of "police "Dower" by which in the limited states the right of the states 
to safeguard the order and the health of their otoi communities has been 
preserved. The powers of the states in Australia were considered so 
doubtfri that before the war some states preferred, for exarrole, to 
rely on Commonwealth action to prevent the importation of diseased 
plants from other states. However, in the case of ITelson v. Coxich 4 
Commonwealth Law Reports, the Sigh Court sustained legislation enacted 
to prevent the importation of diseased stock from Queensland into iTew 
South TTales, In discussing the subject of Freedom of Interstate Com- 
merce, K. H. Bailey in his article entitled "The Constitution and 
Economic Policy", supra, states: 

"The test has been (as in the United States): 
'Is this law in substance and in fact a law with 
respect to interstate trade and commerce, or a 
law with res-oect to health or order as quarantine?' 

975Q 



-b- 

The present judicial -trend see: is, in fact, to "be to 
enlarge what nay be called the •police powers of the 
states. There is, of course, sone danger that under 
pretext of oolice power, strtes will seel: to under- 
line the freedom of interstate trade." 

The Comnonwealth's power over interst:te trade air>ears to be 
absolute, so_ long; as it does not disc:, ininate as between states . 



9750 



CHAPTER III. 

political parties ».: s t: rn: -<:cc"o: ic policies 

As hereinbefore stated politic - and economics are closely con- 
nected in Australia and this connection bears so strongly .upon indus- 
trial relations that no discussion of this subject would be complete 
without a brief statement relating to political parties. 

Prior to federation in 1901 there was a conservative party 
which was the exponent of free trade , and there were liberal parties 
that followed radical social ideals and had been induced .to make -pro- 
tection the main plank of their policy. The Labour Party first elected 
representatives in the eighties, but after the failure of . ? great 
shipping strike in 1391 it started to grow rapidly. The union element, 
as distinguished from the intellectuals, of the labour Part;'-, attended 
to the industrial requirements of large bodies of. men and developed •. 
considerable economic power. On accouiit of the fact that the Party, was 
weak and rarel" in a position to dominate Parliament, it was forced to 
support the more liberal policies being, tarried out at the time. 

TTith federation, the field of political action was' widened to 
cover the continent, and interests which had a scope as wide as the 
continent, fought for control of Federal politics. The three interests 
thus involved are manufacturing, trade .unions and agrarians. The manu- 
facturing interest had a varying interest in. the several- political-, 
policies and although there was a difference of opinion in the pro- 
tective states, the erotectionist policy in the Commonwealth became 
completely victorious. Trade unions which were formed in all, parts of 
Australia and which were merged into a Federal party exerted great in- 
fluence. Agrarians do not have the. same capacity, to organize as do 
trade unions and they do not have the political -sense, .in which the 
Labour Party excelled, and, therefore, they have. never been able to 
establish any -predominant, influence in politics. Prior to federation 
they were unable to cope with the protectionists. After federation the 
protectionists became supreme in the Commonwealth and the Agrarians in 
the states. Eventually the Labour' Party, by an opportunist polios'- and 
by modifying its practical policy, secured the vote of Agrarians. 

Residents of cities and towns, professional classes, business 
men, traders and financial organizations, who had no common interest 
which could be served by political action, were "forced into what may 
be called a residual party which has been called by various names, such 
as 'liberals', and, later, 'nationalists'". In discussing the un- 
organized voters in his article entitled "Political Parties and their 
Economic Policies", Hon, F. ¥. Eggleston, says: 

"The aggressive affirmative power of a vested 
interest is far greater than the -power of a majority 
advocating general principles for the good of all. 
The residual parties have always been on the de- 
fensive *****, in the circumstances, it has been 
in-possible for their members to refrain from competing 



with other parties for the votes of interested sections. 
In our view, therefore, there is in Australia a series of 
powerful interests on the one side and on the other the 
mass, - the fen°ral -oublic-consumers, inroerf ecf v organized. 
In the cases of Lahour Party arid the Agrarians, the material 
•interest' is the 'oarty'. The manafacturins; interest has 
a relation to all parties. " 

A. PROT?C :p IOW 

As the Lahour Party be^an to adopt a more strenous wage policy and 
to use political means to secure higher wages, the manufacturers, as 
employers of labor, had a divided interest. They could not, however, 
resist the wage policy of the Labour Party an' 5 at the same time advocate 
higher duties than those advocated by the Liberal protectionists. The 
protectionist manufacturers were willing to put the interest of the 
trade as a recipient of assistance from the 'tariff , above vase policy. 
Small businesses were dependent on the tariff and, being strong in all 
manufacturers' organizations, everything was sacrificed by the manufact- 
urers to the necessity of getting higher 'duties. Manufacturers have, 
therefore, supported both the Liberal and Labour Parties. 

In the struggle for control the Labour Party, wi.th its policy of 
modified socialism, has become dominant as against Agrarian policies 
involving protection for the farmer to compensate for the protection 
for the manufacturer by the tariff and prot-cUon for the worker by the 
was-e policy and the Nationalist -ooliCy of national development . 

Thus it appears tnat in the consideration of any policy which has 
been or may be adopted t<"> aid economic recovery, as well as the estab- 
lished methods of dealing with industrial relations, politics play an 
important part in Australia. This is true irrespective of the provisions 
of the Commonwealth Constitution and is worthy of aerioua study in con- 
nection with plans for economic recovery that may be adopted in the 
United States, the Constitution of ^hich is similar in many respects to 
the Australian Constitution, where political parties do not play the 
same important part that they do in Australia, 



9750 



r 9- 
CHAPTEE IV 

COURTS 0? COi'CILIAIIOil AhD ARBITRATION 



Among the powers delegated to- the Parliament under the Australian 
Constitution is that oj making laws with respect to "conciliation and 
arbitration for the prevention and settlement of industrial disputes 
extending "beyond the limits of any one state", pursuant to this power 
the Commonwealth Court of Conciliation and Arbitration was established 
under an Act of Parliament passed in 1904. Each of the six states of 
Australia lias its own industrial laws and tribunals and the function- 
ing of the Commonwealth Court of Conciliation and Arbitration has com- 
plicated the settlement of industrial disputes and the regulation of 
industrial relations, for the reason that the Commonwealth operates in 
tne same industrial field, in the same industries, as do the courts of 
the several states. The matter of jurisdiction of the Commonwealth 
Court is well defin'ed, and, as a matter of fact it is limited by the 
Constitution, but as is hereinafter shown, serious obstacles, neverthe- 
less, arise to defeat the accomplishment sought. Lack of coordination 
between the Commonwealth Courts and the State Courts lias resulted in a 
considerable amount of overlapping and duplication of awards. Wages 
have been awarded on different oasis rates; hours of work and condi- 
tions of work have varied even in the same industry. 

It is obvious that the provisions of the Constitution giving the 
Parliaient power to make laws with respect to "conciliation and arbi- 
tration for the prevention and settlement of industrial disputes ex- 
tending beyond the limits of any one state" were incorporated for the 
reason that no state had the power to deal with industrial disputes 
extending beyond the limits of its own boundaries. Disputes arising 
in one state might easily spread to other states and thus become an 
Australian dispute which could not be settled as such because there 
was no authority with the necessary paver to do so. Hence, it was 
necessary to give the Commonwealrh Parliament jurisdiction over inter- 
state industrial disputes. 

It was originally considered that only a few industries of a 
national character would come with the jurisdiction of the Court, 
However, State trade unions federated and registered in the Court and 
prepared a. log of claims in regard to wages and working conditions for 
its members, and served it together with a letter of demand, on em- 
ployers engaged in the inc. us try which employed their members in two 
or more states. If the employer refused to grant the claims, or ignor- 
ed them, an interstate dispute was created, or was threatened or im- 
pending or probable, and thus came within the jurisdiction of the 
Court. Under such procedure , then, the jurisdiction of the Court was 
extended to cover many industries and, although its jurisdiction was 
well defined and limited by the Constitution, as hereinbefore stated, 
it was not possible to follow a line of demarcation because, by such 
procedure as above outlined, the facts in particular cases would change 
the question presented from one of an intrastate to one of interstate 
nature. On account of the fact that the Commonwealth Court, as a rule, 
av/arded higher rates of wages and better conditions of work than state 
tribunals, it soon became very popular with the unions, so that within 



-10- 

twenty— five years from the establishment of the Court, one hundred 
thirty-seven trade "onions, with a mbership di approximately seven 
hundred seventy-one thousand members representing 85.6 per cent of 
the total membership of all trade unions in Australia, had registered 
in the Court and thus brought themselves within its jurisdiction. It 
is not to be understood, however, that all Commonwealth awards apply 
to all the six states in Australia or that there are seven hundred 
sevanty-one thousand uni mists working under Co. wealth award's. It 
is estimated that four hundred ti.~enty ti -Mid unionists work under 
Commonwealth awards and th t about one hundred fifty-eight have their 
wages and working eruditions determined by the industrial tribunals of 
the states in w rich they live. The fact that the Commonwealth Court 
does not have the power to declare o common rule, that ".is, it can not 
extend the whole or a part of 2.: award which has been made in settle- 
ment of 0. dispute between actual parties, to all persons engaged in 
the industry covered by the award within a defined area, prevents its 
awards from covering as many as it atherwisev would. Its jurisdiction 
being limited by Section CI (XXXV) of the Constitution to conciliation 
and arbitration ior the prevention and settlement of interstate indus- 
trial disputes, it can prevent or settle disputes between actual part- 
ies only. On the other hand, all State industrial tribunals have the 
power t" declare an award, .wo any provision ;f an award, g common rule 
of an industry. 

Much confusion arises fro - this dual c ntrol of the States and of 
the Commonwealth, An award if the Commonwealth Court usually binds 
the union involved in r particular question, and, also, the members 
of the union n... : number of employers, all who ore parties to the 
dispute; but all of on employer's workmen ore not, as a rule, members 
of the union co .corned. The wages and the conditions of work of the 
non-unionists are regulated ~'o;' the State award or determinati m. In a 
given case, ore ~>f the non-unionists may join the union and thus bring 
himself uider t ie Comra . > Lth Courts award. On the other hand, a 
unionist may l^ave the union and he then carries under State control. 
An employer may not have been a party to the dispute, and would, not, 
therefore, be bound by the Commonwealth - Court * s award. It may thus be 
seen that the system tends to conflicting jurisdiction. Although an 
award made ''oy the Commonwealth Court prevails over any State law or 
State award or determination which is inconsistent with it, inconsist- 
ency o/rises where the State law or award, if effective, would clestroy 
or vary adjustment cf industrial relations established ay the Common- 
wealth award. In an article b3^ C-eorge Anderson, barrister and Solicit- 
or, entitled "Begulation of Industrial Relations", Vol. 158, The Annals, 
at gage 158, on the question of the results of the' control of the Coinmon- 
wealth and 00' the States over industrial disputes, it is stated: 

"ITothing but complications, conflict and overlapping 
could result from the activities of two entirely in- 
a - endent authorities operating in the same industrial 
field". 

There seems to be no remedy for this unsatisfactory method because 
the jurisdiction of the Commonwealth is limited, by the Constitution and 
four attempts to have the Constitution so amended as to enable the 
Commonwealth to extend its industrial powers have failed. The Common- 



-11- 

wealth can not vacate the industrial field and leave the control of 
industries to the States because labor is opposed t; this policy and 
is strong enough to rev at its ado] 

The Commonwealth Court of Conciliati . . Arbitration, usually 
referred to as the "Arbitration Court" consists of a Chief Judge and 
such other judges as are appointed by t le Governor-General in Council. 

aintr.'.ents are for life, As a prerequisite to appointment one must 
have been a barrister or solicitor for at least five years. The number 
of judges may vary, but there must be at least three. In most instances 
the jurisdiction of the Court may be exercised by the Chief Judge or 
another Judge. The Court has full arbitral and judicial powers, in- 
cluding, among others, the following: Ehe power to hear and determine 
all industrial disputes within its jurisdiction; to make orders and 
awards; to _""'x maximum penalties for breaches or non-observance of any 
term of on or v der or award; to impose penalties; to set as 5 ie an award 
or any of its terms; to vary orders and awards ; and to giv: an inter- 
pretation of any term of mi award altering the standard hairs of work 
in an industry or altering the basic wage or the principles on which 
it is computed, or to vary or give an interpretation of an award where 
the variation or interpretation would result in any such alteration, 
unless the question is heard by the Chief Judge and not less than two 
other Judges, and approved hy a majority. 

Commissioners, known as Conciliation Commissioners, with all the 
arbitral powers of a Judge of the Court but with no judicial powers 
may be appointed by the Governor-General. A Commissioner is in the 
position of a Judge in regard t: the basic wage and standard hours. 
From orders or awards of a Commissioner affecting wages, hours, or 
conditions of employment which, in the opinion of the Court, arc likely 
to affect the public interest, an appeal lies to the Court itself. 



Q7Rn 



-12- 



ciapter v 



APPEALS FUG: J COURTS OF CCITCILIATIOIT A1TD ARBITRATION 

Tlie High Court of Australia (which is the equivalent of the Supreme 
Court of the United. States) exercises jurisdiction in cases which in- 
volve the question as to whether an "interstate dispute exists, or is 
threatened, or impending, or probable", when alleged industrial dis- 
putes are submitted to the Commonwealth Conciliation and Arbitration 
Court. The decision of the High Court on the question, when it is 
presented by any party concerned, is final. The jurisdiction of the 
High Court in such cases is similar to the jurisdiction of the United 
States Supreme Court upon similar questions when they come up from 
the lower Federal Courts. Furthermore, the Court of Conciliation and 
Arbitration may, itself, state a case in writing for the opinion of 
the High Court upon any question of law arising in a proceeding. The 
judgment of the High Court is conclusive and is binding on the Court 
and on the parties. The High Court has original jurisdiction under 
the Constitution to issue prohibition to the Court, if it acts without 
or in excess of its jurisdiction. 

Industrial agreements which are filed in the Court have the 
force of awards of the Court and encouragement is given by the Court 
to employers and organizations of employees to file such agreements. 
It is advantageous to have such agreements filed because there is an 
arbitration authority to settle disputes and make awards thereunder 
when the parties in dispute fail to reach an agreement. 



-13- 
CHAPTER VI ,_, 

II'DUSTfilAL T5I3UNAL5 OF THE SIX STATES 0?' .xC~>T2ALlA 

A. Hew South ,7ale s , . 

Without reference to previous Acts it is considered sufficient 
for the purposes of this report to "briefly outline the provisions of 
the Act which is now in force, which, as a matter of fact is the origi- 
nal Act passed in 1908, as finally amended in 1926. This Act is known 
as Industrial Arbitration Act and provides for an Industrial Commission 
to exercise the powers of the Court of Industrial Arbitration and for 
conciliation committees in industries. The Industrial Commission is 
the chief industrial tribunal. There are three members of the Commis- 
sion, the senior being called the President. A Judge of the Commission 
must at the time of his appointment be qualified to be a Judge of the 
Supreme Court. 

One of the functions of the Commission is to determine, not 
more frequently than once in every six months, after public inquiry, a 
standard of living, and to declare what shall be the basic wage based 
upon such standard for adult male and female employees. 

The Act provides for the establishment of conciliation com- 
mittees by the Minister for Labor and Industry, for the different in- 
dustries or callings to which it applies. Each committee consists of 
an equal number of representatives of employers and employees, and a 
Chairman. A committee has cognizance of and power to enquire into any 
industrial matters in the industry for which it is established, and in 
respect thereof may make an order or award binding on any or all em- 
ployers and employees in the industry. In cases in which the committee 
fails to make an order or award upon an application, or deals only 
partially with it, the Chairman, who takes no part in the decisions of 
the committee and has no vote, refers the application or part to the 
Industrial Commission, which then proceeds to hear and determine the 
matters in dispute between the parties. Only upon the failure of the 
committee to which a matter has been referred, to make an order or 
award can the Commission, assume jurisdiction of that particular matter. 
There is an appeal to the Commission from any order, determination, or 
award of a committee, or of any refusal, ..of a committee to make an order 
or award. The Act provides for the making" and the filing of industrial 
agreements, preference to unionists in certain causes, strikes and 
lockouts, breaches of awards and other offenses, trade unions, state 
labor exchanges and private employment agencies. 

B. Queensland 

Under the Industrial Conciliation end Arbitration Act of 1930 
(by which the Act of 1916 and Amending Acts and the Basic Wage Act of 
1925 were repealed), an "Industrial Court" was established with auth- 
ority to declare general rulings relating to any industrial matter, 
such as the cost of living, the standard of living, the basic wage, or 
standard hours. The Judge and two conciliation commissioners consti- 

9750 



. -14- 

tute the Court for the purpose of making such declarations. Conciliation 
Boards are constituted by the Court for different industries or trades 
and provision is made in the Act for the appointment of two conciliation 
commissioners. Each Conciliation Board consists of a chairman and 
either two or four other members, employers and employees having equal 
representation among the members of the Board except the chairman. 
Disputes must be referred to a board or commissioner before they are 
referred to the Court. In the event a settlement of the dispute is 
reached by the parties, the terms are set forth in an agreement which 
is filed in the office of the registrar and has the force of an award 
of the Court. If no settlement is reached, the dispute is referred 
to the Court for settlement. Conciliation commissioners have author- 
ity to make awards when acting as conciliation boards under authority 
of the Court, but neither the commissioner nor a board can make an 
award or enter into industrial agreements for wages lower than the 
declared basic wage, or for a number of weekly hours more than the 
Court's standard hours. ' 

The Act provides for the making of industrial agreements, payment 
for certain holidays, the cancellation of an award or agreement in the 
case of a depressed industry, the registration of industrial unions of 
Government employees, breaches of awards and other offenses such as 
striking and locking out. 

C. South Australia 

In South Australia the Industrial Court has jurisdiction to 
deal with all industrial matters and is a court of appeal. The Presi- 
dent of the Court has power as a mediator to deal with all industrial 
matters in all cases in which it appears to him that his mediation is 
desirable in the public interest, and such matters would, if submitted 
to the court, be within its jurisdiction. 

There is a Board of Industry consisting of the President of 
the Court and four commissioners, two of whom represent the employer, 
and two the employees, the chief function of which is to declare the 
basic wage. This Board is empowered to hold an enquiry for the pur- 
pose of declaring the basic wage whenever it thinks that circumstances 
re- ■ ^er it just and expedient that the question of the basic wage 
should be reopened and renewed; but it can not make a new declaration 
until the expiration of at least six months from the date of its 
previous declaration. The Board also exercises the function of group- 
ing the industries or callings for the purpose of the appointment of 
industrial boards and the making of recommendations for new boards and 
for the dissolution of old boards, etc. The Minister of Industry on 
the recommendation of the Board of Industry has power to constitute 
an industrial board for any industry or calling, half of the members 
of which, except the chairman, consisting of four or six or eight, 
represent employers and one-half represent employees. 

With respect to the industry for which it has been consti- 
tuted, the Board may determine any industrial matters, but it has no 
power, as regards adult employees, to fix wages below the basic wage. 
Proceedings before a board are usually commenced by reference to the 



-15- 

board or the Court, or by application to the board by employers or em- 
ployees in the industry or calling for which the board has been con- 
stituted. An appeal to the Court lies from the determination of a 
board. In the event a board is unable to exercise and discharge its 
powers and duties, the Court has power to exercise its functions; 
otherwise the Court has no jurisdiction over any industrial matter 
concerning any industry for which a board has been appointed and as 
to which matter the board has jurisdiction. 

The Industrial Acts also deal with registered associations, in- 
dustrial agreements, strikes and lockouts, breaches of awards and other 
offenses, apprenticeship, and factories and shops. 



9750 



-16- 
-B. Western: Australia 

: The Industrial Conciliation and Arbitration Act 1902 - 1909 was 
repealed "by the Industrial Arbitration Act of 1912. The Act of 1912 has 
been amended several times and under it, as amended, tribunals have been 
created- to. deal with industrial matters, the chief of which is the Court 
of Arbitration. This Court consists of three members, one of whom is 
designated as President, all appointed by the Governor. One member is 
•appointed on the recommendation of the industrial unions of employers, 
and .one is appointed upon the recommendation of the industrial unions 
of workers. , 

The Court has jurisdiction on its own motion to deal with and de- 
termine all industrial matters, and to prevent, settle and determine all 
industrial disputes if the dispute has caused a cessation of work. It 
has also jurisdiction to settle and determine all industrial matters and 
disputes referred to it by any party or parties under the Act. The 
Court's decision that a mrti-er referred to it is, or is not, an indus- 
trial dispute is ^inal and ccnclusive. One of the chief functions of 
the Court is to do* ermine and declare a basic wage to be paid to adult 
male and female employees. 

On the recommendation of the Court, industrial Boards may be con- 
stituted by the Governor for any industry, calling or undertaking. Each 
board must consist of a Chairman and two or four other members, as 
recommended by the Court. One-half of such members represent the em- 
ployers and one-half the employees. All the powers of a board may be 
exercised by a majority thereof. The Court may remit to an industrial 
board for inquiry and report any industrial matter or disp te upon which 
the Court desires information for the purpose of making an award; or 
the Court may remit to a board any industrial dispute for determination 
and award, the awards having the same force as awards made by the Court. 

The existing Industrial Arbitration Act also deals with industrial 
unions and associations, industrial agreements, apprentices, breaches 
of awards and other offenses, and strikes and lockouts. 

S. Victoria 

Unlike the States of New South Wales, Queensland, South Australia 
and Western Australia, Victoria has no central industrial tribunal and 
no tribunal to fix a basic wage for the state. In 1898 the wages board 
system of small independent industrial tribunals was introduced in 
Victoria and this system has been retained. Tne Act governing the 
appointment of wages boards and their powers and functions is the 
Factories and Shops Act, 1928. Under '.his Act the law relating to the 
supervision and regulation of factories, wages boards, and other indus- 
trial matters. A wages board is appointed for a trade Ij" trade" includes 
a process or business or occupation or a branch of a trade or a group 
of trade) , by the governor in Council, and consists of not less than 
four and not more than ten members and a chairman. One-half of the 
members represent the employers and one-half the employees, the appoint- 
ments being made, usually on the recommendations of organizations of 



-17- 

emcloyees and employers, by the Minister of L a bcr. All the powers of a 
board may be exercised by a majority of the members thereof. 

A wages bonrd is empowered under the Act to determine weekly hours 
of work, to fix time and casual rates of wages, overtime rates, piece- 
work rates, and special rates for work done on Sunday or on a public 
holiday. In addition to exercising the powers conferred upon it by the 
Factories and Shops Act, a wages board dealing with any question not 
covered by such powers may, by a unanimous decision, determine any 
matter whatsoever with respect to conditions of employment in any trade 
for which such board has been appointed. The validity of the action of 
wages boards may be challenged before the Supreme Court. There is a 
Court of Industrial Appeals, consisting of a president and two other 
members, one representing employers and one the employees, which decides 
all appeals against a determination of a wages board, and deals with any 
determination referred to the Court by the Minister of Labor. In dealing 
with appeals and references, the Court has and may exercise all or any 
of the powers conferred on a wages board by the Act, and is y amend the 
whole or any part of a determination. 

F. Tasmania. 

Like Victoria, Tasmania has no central industrial court and no 
tribunal for declaring a basic wage for tne state. The Wages Boards 
Acts 1920 - 1928, govern the powers and functions of the wages boards. 
Under authority of the Parliament, the Governor establishes wages boards 
for a particular trade or calling or group of trades or callings. Each 
board consists of a chairman and as many representative members as the 
Minister of Labor detarmines. One-half of the representative members 
are appointed for the employers and one-half for employees. The powers 
of a board may be exercised by a majority of the members thereof. Half 
of the members who represent the employers and half who represent the 
employees, together with the chairman, constitute a quorum. 

A board has full power to determine time rates of wages, casual 
wages, piecework, overtime rates', and 'sp-ecial rates for work 3one on 
Sundays and holidays; to determine weekly hours of work; to deal with 
apprenticeship and all matters relating to apprentices; to determine 
that wages and piecework rates shall be automatically adjusted at stated 
periods to accord with variations in the cost of living as indicated by 
the Statistician's retail price index numbers; and, by a unanimous de- 
cision of the board, hut not otherwise, to allow holidays on full pay, 
not exceeding fourteen during each year. A determination of a board may 
be challenged before the Supreme Court on the ground of illegality. 

The Wages Boards Acts also deal with agreements, stri es and lock- 
outs, penalties for offenses against the Acts, inspection of factories 
and other matters. 



r\DCrt 



-18- 

CHAFTER VII 

RA TES OF WAGES A MD HCURS OF LABOR 

Both the Commonwealth and State tribunals give much time to the 
questions of wages and hours of labor, especially the former, as may be 
understood from the provisions of Acts under which such tribunals are 
created, as well as from a study of reports and of court decisions. 
The wage rate question is outstanding and the problem is far from solved. 
There are no uniform principles upon which wage rates are based and there 
remains certain difficulties to be dealt with, including the question of 
the standard of living. 

In 1920 a Royal Commission appointed by the Commonwealth Government 
held an inquiry into the basic wage, and kindred matters, for the purpose 
of finding the cost of living, according to reasonable standards of com- 
fort, of a family of five/ irr order that the amount so ascertained might 
be made the basic wage. This commission found an amount of L 5.16s.- 
an amount considerably in excess of basic wages then being paid. At the 
time the report of the Commission was made, the Commonwealth Arbitration 
Court's basic wage for Sydney and Melbourne was L 4.13s. The difference 
between the two rates was due to the fact that the Commission had deter- 
mined reasonable standards of comfort b;v the needs which were common to 
all employees, and the Court, by the needs of the unskilled employee. 
The recommendations of the Commission were disregarded. 

A basic wage provides for the average worker who is unskilled and 
who has a wife and children. However, there is no agreement among the 
different basic wage-fixing authorities in regard to the size of the 
family unit. The Commonwealth Arbitration Court's basic wage provides 
for man, wife, and thrae children; the wages boards of Victoria and 
Tasmania usually adopt the Commonwealth Court's basic wages; the Queens- 
land Industrial Court and the South Australian Board of Industry also 
declare a basic wage for the five-unit family; the Western Australian 
Court of Arbitration's basic wage provides for man, wife and two children; 
the New South Wales Industrial Commission determines a basic wage for 
man, wife and one child; but in New South Wales, there is also a Family 
Endowment Scheme which endows dependent children over one. 

The most important wage- fixing; tribunal in Australia is the Common- 
wealth Court of Sonciliation and Arbitration. Although, as hereinbefore 
stated, a basic wage was propounded in Australia in 1890 and the same 
principle that was then announced was enunciated in 1905, it was not 
until 1907 that the first basic wage, as such was declared by a Court in 
Australia. In vhat year in a tase popularly known as the "Harvester 
Judgment" on account of its having been determined in cor -ction with 
H. V. McKay's Sunshine Harvester Works, the rate of wage declared was 
Vs. per diem or L 2.2. s. per week for Melbourne, the amount considered 
reasonable for &a family of about five". The "Harvester" basic rates 
for all other towns throughout Australia were fixed at practically the 
same rates until 1913. Thereafter the basic rates for towns were fixed 
on their respective index-numbers. It is noted that the judgment de- 
livered in the "Harvester" case was the outcome of an application by an 
Australian employer for a declaration that the conditions as to the re- 
muneration of labor in his factory were "fair and reasonable." 



-19- 

The application was made by the employer so that he might get exemption 
from the payment of excise duties- on certain classes of agricultrual im- 
plements which had been imposed by the Corrrronwealth Excise Tariff Act. The 
duties did not apply to goods which were manufactured under conditions, as 
to the remuneration of labor » which were "fair and reasonable". The ques- 
tion to be decided was wnat the Act meant by "fair and reasonable". After 
much consideration it was decided that the only appropriate standard of a 
living wage was "the normal needs of the average employee, regarded as a 
human being living in a civilized community". • By this test it was decided 
that no wage less than 42/ - per week for an unskilled worker would be fair 
and reasonable. The average unskilled wage at the time the "Harvester Judg- 
ment" was rendered was about 33/ - per week. It is apparent, therefore, that 
the Harvester wage represented a marked increase in the standard of living 
or real wages of the workers who later came under the Court's awards, or 
under state awards or determinations which had been influenced- by the Har- 
vester Judgment. Since 1907 the general policy of the Court in regard to 
wages has been the maintenance of the Harvester standard, but there was add- 
ed to this wage certain increased to meet the increased cost of living so 
that the true equivalent of the Harvester wage would at all times be paid to 
employees. However, in 1922 the Court added 3/ - per week to the basic wage 
and this continued in force until 1934, although from the period 1922 to 1934 
there were times when the need for it had passed. 

There has always been doubt as to the adequacy of the "Harvester" stan- 
dard, as supplemented by the method of increasing the rate, upon occasions 
for the purpose of maintaining the standard, and a review thereof was deemed 
necessary, but no action was taken until 1934, this method of fixation and 
adjustment of the basic wage remaining in force. It was superseded in 1934 
by a judgment of the Pull Arbitration Court after the Economic depression, 
which made itself felt severely in Australia in 1930, had forced employers to 
seek relief from the Court of a part of the burden of wages on industrial re- 
covery. Fursuant to hearings and determinations by the Court upon applica- 
tions of employers all wages under the jurisdiction of the Court were reduced 
by ten percent from February, 1931. In June, 1932 and May, 1933 the Court re- 
fused to rescind this order on application made by the unions. By a judgment 
of the Full Court in 1934, however, the ten percent reduction of wages ceased 
to operate in a majority of awards as from the 1st of May, 1934. At the same 
time the Court indicated that although restoration general" to the standard 
rate existing prior to the ten percent reduction had been refused, it was 
possible that certain industries were in a condition to justify the restora- 
tion and that it would be prepared to hear applications upon that ground. A 
number of full and partial restorations were made by the Court, and also vol- 
untarily by employers. 

After the pronouncement by the Court that it would hear applica- 
tions for rescission of the order putting into effect the ten percent 
reduction upon the ground that certain industries might be in a con- 
dition to justify the restoration, applications by organizations 
generally renewing the request for rescission were made. The case 
submitted by the unions was mainly directed to prove that "the 
national finances had improved substantially; that commerce and in- 
dustry had revived, and that balance sheets, enchanced prices of stocks 
and shares, increased productivity and other ready means of measuring 
prosperity had proved the ability of industry to bear complete restora- 
tion of former wage standards; that the continuation of the reduction' 

9750 



-20- 

was iiaoipering progress towards complete recovery; and that had the con-, 
ditions prevailing in 1930 been similar to those of 1954, the Court 
would not have made the reduction. The employers denied generally the 
position as stated by the unions , that although Common- 
wealth finances had apparently improved, the condition of State 
finances was still parlous; that the position of the railways and 
tramways was desperate, and that State deficits were largely due to the 
losses in those services." 

Under the judgment of a divided Court the ten percent reduction 
was rescinded, new basic rates wore awarded for various capital cities 
and county towns, and provision was made for adjustment of wages on 
account of cost of living in cases in which such amount reached 2s. 
per week. 

At the present the basic wage rates fixed by arbitration 
tribunals differ from tnose obtaining in the Federal sphere not only as 
regards amount, but also in respect of constitution of the family unit 
whose needs it purports to supply. In the majority of cases, however, 
the practice of the Commonwealth Arbitration Court oi adjusting wages 
in accordance with the variations r in the "Cost, of Living" index- 
numbers has been followed by the state arbitration tribunals, so that 
the "Harvester Judgment" award is not now effective, either directly 
as 'governing the Commonweal th method or as influencing the state 
methods. 

"Tith respect to one of the most important problems in industrial 
relations - that of establishing basic wages, - it is to be understood, 
therefore, that no satisfactory solution has been found for either the 
Commonwealth or tie States and that this problem, as arc all others 
which arise between labor and industry, is subject to dual control and 
that although there arc established and well functioning tribunals to 
deal with them, practically the same" obstacles are encountered in 
Australia as these which must be overcome in the United States. 



9750 



-21- 

CIIAFT3R VIII 

cohCLuSi ors 

1. Australia does not have the extensive territory nor the large 
number of units, - states, - that the United States as, nor are its 
industries as varied or as large; furthermore, its political situa- 
tion admits of greater flexibility with respect to legislative enact- 
ment and judicial constructions for the reason that one Party practi- 
cally controls. 

2. The constitutions of Australia and of the United States both 
limit the law-making powers to making laws in respect of interstate 
commerce only, "but the Parliament of Australia has constitutional 
authority, also, to make laws with respect to "conciliation and 
arbitration for the prevention and settlement of industrial disputes 
extending "beyond the limits of any one state". This aithority does 
not make it possible for the Parliament to regulate intrastate 
commerce, of course, but by exercising its power under this provision 
of the constitutions by establishing Commonweal th Courts of Concilia- 
tion and Arbitration it sets an example for the six States and they 
likewise have established such courts. The adoption of procedure and 
standards of the Commonwealth tribunal by the state tribunals almost 
inevitably followed with the result that in Australia their are at 
least consti tilted authorities with more or less uniform standards 
which may dead with industrial disputes and although conflicts arise 
on account of the Commonwealth and state control, nevertheless both. 
the employer and employee have an authority to which they may appeal 
which is constituted for the sole puroose of rendering awards in their 
particular fields, thus avoiding the delays, speculations and doubts 
incident to ordinary judicial hearings. 

3. The Courts of Conciliation and Arbitration and other 
tribunals which deal with industrial relations, are set up under the 
Commonwealth and state constitutions and laws in a definite manner with 
well defined functions and jurisdiction, but in spite of this fact, 
conflicts arise and, so far, no method of satisfactorily adjusting 
industrial disputes and putting in force a common rule, has been 
evolved. Although the Courts of Australia in construing Acts of 
Parliament relating to the Commerce clause of the Constitution, 
closely followed the decisions of the United States Supreme Court in 
cp,se involving the interstate commerce clause of our constitution, the 
effects have not been quite so disastrous for the reason that it has 
been possible in Australia, through the Courts of Arbitration to 
adjust disputes as they arose, especially in view of the fact that the 
state tribunals have adopted the methods of the Commonwealth Court. 
Furthermore, it seems that the high Court of Australia no longer feels 
impelled to follow quite so closely the United States Supreme Court 
decisions and a, more liberal construction in'-later decisions has been 
given the commerce clause of the Australian Constitution. 



0750 



-22- 

4. Eie Australian tribunals soelc to adjust industrial rela- 
tions rdt'.i r view to giving: employees an opportunity to live comfort- 
ably, witliout doing injustice to employers, as is indicated in efforts 
made to establish reasonable basic raiies. 



-23- 



BIBLIOGRAPHY 

Anderson, George. Industrial Relations. The Annals, Vol. 158 

Anderson, George. Fixation of Wages in Australia, Melbourne. 

Anderson, George. Wage Rates and the Standard of Living. 

The Annals, Vol. 158. 

Bailey, K. H. The Constitution and Economic Policy. The Annals, 

Vol. 158. 

Official Year Book of Australia, 1934. 

Acts of the Parliament of Australia Crepting Courts of Conciliation 
and Arbitration and Acts of the Parliaments of the States. 

The Commonwealth of Australia Constitution Act. 

Laws of the Commonwealth of Australia, annotated and indexed. 
Brian Joseph McGrath, William Jonn Sigmon and Girard Joseph 
0' Sullivan. (1933) 

Annual Reports, Bureau of Commerce and Industry of Australia. 

Commonwealth Labor Reports. 

Hunt, American Precedents in Australia. 1930. 

Decisions of the High Court of Australia, including: 

The King v. Barger, 6 Commonwealth Law Reports 41. 
The Bookmakers' Case, 11 Commonwealth Law Reports 311. 
Australian Railways Union v. Victorian Railways Commissioners, 

Argus Law Reports, 37 
State Railway Servants' Case, 4 Commonwealth La^ Reports 488. 
The Engineers' Case, 28 Commonwealth Law Reports, 129. 
Nelson v. Crouch, 4 Commonwealth Law Reports. 
Peterswald v. Bartley, 1 Commonwealth Law Reports, 497. 
New South "Tales Industrial Gazette, No. 2., Vol. 28. 
Report of the Poyal Commission. 
Western Australian Industrial Gazette. 
Family Endowment Act. 



9750 



OFFICE OF THE NATIONAL RECOVERY ADMINISTRATION 
THE DIVISION OF REVIEW 

THE WORK OF THE DIVISION OF REVIEW 

Executive Order No. 7075, dated June 15, 1935, established the Division of Review of the 
National Recovery Admiristration. The pertinent part of the Executive Order reads thus: 

The Division of Review shall assemble, analyze, and report upon the statistical 
information and records of experience cf the operations cf the various trades and 
industries heretofore subject to codes of fair competition, shall study the ef- 
fects of such codes upon trade, industrial and labor conditicns in general, and 
other related matters, shall make available for the protection and promotion of 
the public interest an adequate rsvie.v of the effects of the Administration of 
Title I of the National Industrial Recovery Act, and the principles and policies 
put into effect thereunder, and shall otherwise aid the President in carrying out 
his functions under the said Title. I hereby appoint Leon C. Marshall, Director of 
the Division of Review. 

The study sections set up in the Division of Review covered these areas: industry 
studies, foreign trade stud ies, labor studies, trade practice studies, statistical studies, 
legal studies, administration studies, miscellaneous studies, and the writing of cede his- 
tories. The materials which were produced by these sections are indicated below. 

Except for the Code Histories, all items mentioned below are scheduled to be in mimeo- 
graphed fo rm by April 1, 1936. 

THE CODE HISTORIES 

The Code Histories are documented accounts of the formation and administration of the 
codes. They contain the definition of the industry and the principal products thereof; the 
classes of mecbers in the industry; the history of code formation including an account of the 
sponsoring organizations, the conferences, negotiations and hearings which were held, and 
the activities in connection ,vith obtaining approval of the code; the history of the ad- 
ministration of the code, covering the organization and operation of the code authority, 
the difficulties encountered in administration, the extent of compliance or non-compliance, 
and the general success or lack of success of the code; and an analysis of the operation of 
code provisions dealing with wages, hours, trade practices, and other provisions. These 
and other matters are canvassed not only in terms of the materials to be found in the files, 
but also in terms of the experiences of the deputies and others concerned with code formation 
and administration. 

The Code Histories, (including histories of certain NRA units or agencies) are not 
mimeographed. They are to be turned over to the Department of Commerce in typewritten form. 
All told, approximately eight hundred and fifty (850) histories will be completed. This 
nusber includes all of the approved co^zz ar.d some of the unapproved codes. (In Work Mate- 
ri als rjo. 18, Contents of Code His tories , will be found the outline which governed the 
preparation of Code Histories.) 

(In the case of all approved codes and also in the case of some codes not carried to 
final approval, there are in NRA files further materials on industries. Particularly worthy 
of mention are the Volumes I, II and III uhich constitute the material ofiicially submitted 
to the President in support of the recommendation for approval of each code. These volumes 
9768—1. 



- 11 - 

set forth the origination of the code, the sponsoring group, the evidence advanced to sup- 
port the proposal, the report of the Division of Research and Planning on the industry, the 
recommendations of the various Advisory Boards, certain types of official correspondence, 
the transcript of the formal hearing, and other pertinent matter. There is also much offi- 
cial information relating to amendments, interpretations, exemptions, and other rulings. The 
materials mentioned in this paragraph were of course not a part of the work of the Division 
of Review. ) 

THE WORK MATERIALS SERIES 

In the work of the Division of Revie*' a considerable number of studies and compilations 
of data (other than those noted below in the Evidence Studies Series and the Statistical 
Material Series) have been made. These are listed below, gr:uped according to the char- 
acter of the materia] . (In Work Materials No . 17, T entativ e Outli nes and S ummari es of 
S tudies in Process , these materials are fully described). 

I ndust ry Studies 

Automobile Industry, An Economic Survey of 

Bituminous Coal Industry under Free Competition and Code Regulation, Economic Survey of 

Electrical Manufacturing Industry, The 

Fertilizer Industry, The 

Fishery Industry and the Fishery Codes 

Fishermen and Fishing Craft, Earnings of 

Foreign Trade under the National Industrial Recovery Act 

Part A - Competitive Position of the United States in International Trade 1927-29 through 

1934. 
Part B - Section 3 (e) of NIRA and its administration. 
Part C - Imports and Importing under NRA Codes. 
Part D - Exports and Exporting under NRA Codes. 

Forest Products Industries, Foreign Trade Study of the 

Iron and Steel Industry, The 

Knitting Industries, The 

Leather and Shoe Industries, The 

Lumber and Timber Products Industry, Economic Problems of the 

Men's Clothing Industry, The 

Millinery Industry, The 

Motion Picture Industry, The 

Migration of Industry, The: The Shift of Twenty-Five Needle Trades From New York State, 
1926 to 1934 

National Labor Income by Months, 1929-35 

Paper Industry, The 

Production, Prices, Employment and Payrolls in Industry, Agriculture and Railway Trans- 
portation, January 1923, to date 

Retail Trades Study, The 

Rubber Industry Study, The 

Textile Industry in the United Kingdom, France, Germany, Italy, and Japan 

Textile Yarns and Fabrics 

Tobacco Industry, The 

Wholesale Trades Study, The 

Women's Neckwear and Scarf Industry, Financial and Labor Data on 

97S8 — 2 



- iii - 

Women's Apparel Industry, Some Aspects of the 

T rad e Prac tice Stu dies 

Commodities, Information Concerning: A Study cf NRA and Related Experiences in Control 
Distribution, Manufacturers' Control of: Trade Practice Provisions in Selected NRA Codes 
Distributive Relations in the Asbestos Industry 
Design Piracy: The Problem and Its Treatment Under NRA Codes 
Electrical Mfg. Industry: Price Filing Study 
Fertilizer Industry: Price Filing Study 

Geographical Price Relations Under Codes of Fair Competition, Control of 
Minimum Price Regulation Under Codes of Fair Competition 
Multiple Easing Point System in the Lime Industry: Operation of the 
Price Control in the Coffee Industry 
Price Filing Under NRA Codes 
Production Control in the Ice Industry 
Production Control, Case Studies in 

Resale Price Maintenance Legislation in the United States 

Retail Price Cutting, Restriction of, with special Emphasis on The Drug Industry. 
Trade Practice Rules of The Federal Trade Commission (1914-1936): A classification for 
comparison with Trade Practice Provisions of NRA Codes. 

Labor S tudies 

Cap and Cloth Hat Industry, Commission Report on Wage Differentials in 

Earnings in Selected Manufacturing Industries, by States, 1933-35 

Employment, Payrolls, Hours, and Wages in 115 Selected Code Industries 1933-1935 

Fur Manufacturing, Commission Report on Wa~es and Hours in 

Hours and Wages in American Industry 

Labor Program Under the National Industrial Recovery Act, The 

Part A. Introduction 

Part B. Control of Hours and Reemployment 

Part C. Control of Wages 

Part D. Control of Other Conditions of Employment 

Fart E. Section 7(a) of the Recovery Act 
Materials in the Field of Industrial Relations 
PRA Census of Employment, June, October, 1933 
Puerto Rico Needlework, Hcmeworkers Survey 

Adm i nist rative Stu d ies 

Administrative and Legal Aspects of Stays, Exemptions and Exceptions, Code Amendments, Con- 
ditional Orders of Approval 

Administrative Interpretations of NRA Codes 

Administrative Law and Procedure under the NIRA 

Agreements Under Sections 4(a) and 7(b) of the NIRA 

Approve Cedes in Industry Groups, Classification of 

Easic Code, the — (Administrative Order X-61) 

Code Authorities and Their Part in the Administration of the NIRA 
Part A. Introduction 
Part E. Nature, Composition and Organization of Code Authorities 

9768—2 . 



- iv - 

Part C. Activities of the Code Authorities 

Part D. Code Authority Finances 

Part E. Summary and Evaluation 

Code Compliance Activities of the NRA 

Cc '- Making Program of the NRA in the Territories, The 

Code Provisions and Related Subjects, Policy Statements Concerning 

Content of NIRA Administrative Legislation 

Part A. Executive and Administrative Orders 

Part B. Labor Provisions in the Codes 

Part C. Trade Practice Provisions in the Codes 

Part D. Administrative Provisions in the Codes 

Part E. Agreements under Sections 4(a) and 7(b) 

Part F. A Type Case: The Cotton Textile Code 
Labels Under NRA, A Study of 

Model Code and Model Provisions for Codes, Development of 

National Recovery Administration, The: A Review of its Organization and Activities 
NRA Insignia 

President's Reemployment Agreement, The 

President's Reemployment Agreement, Substitutions in Connection with the 
Prison Labor Problem under NRA and the Prison Compact, The 
Problems of Administration in the Overlapping of Code Definitions of Industries and Trades, 

Multiple Code Coverag3, Classifying Individual Members of Industries and Trades 
Relationship of NRA to Government Contracts and Contracts Involving the Use of Government 

Funds 
Relationship of NRA with States and Municipalities 
Sheltered Workshops Under NRA 
Uncodified Industries: A Study of Factors Limiting the Code Making Program 

Legal Studies 

Anti-Trust Laws and Unfair Competition 

Collective Bargaining Agreements, the Right of Individual Employees to Enforce 

Commerce Clause, Federal Regulation of the Employer-Employee Relationship Under the 

Delegation of Power, Certain Phases of the Principle of, with Reference to Federal Industrial 
Regulatory Legislation 

Enforcement, Extra-Judicial Methods of 

Federal Regulation through the Joint Employment of the P ower of Taxation and the Spending 
Power 

Government Contract Provisions as a Means of Establishing Proper Economic Standards, Legal 
Memorandum on Possibility of 

Industrial Relations in Australia, Regulation of 

Intrastate Activities Which so Affect Interstate Commerce as to Bring them Under the Com- 
merce Clause, Cases on 

Legislative Possibilities of the State Constitutions 

Post Office and Post Road Power — Can it be Used as a Means of Federal Industrial Regula- 
tion? 

State Recovery Legislation in Aid of Federal Recovery Legislation History and Analysis 

Tariff Rates to Secure Proper Standards of Wages and Hours, the Possibility of Variation in 

Trade Practices and the Anti-Trust Laws 

Treaty Making Power of the United States 

War Power, Can it be Used as a Means of Federal Regulation of Child Labor? 

9768—4. 



- V - 

THE EVIDENCE STUDIES SERIES 

The Evidence Studies were originally undertaken to gather material for pending court 
cases. After the Schechter decision the project *as continued in order to assemble data for 
use in connection with tne studies of the Division of Review. The data are particularly 
concerned with the nature, size and operations of the industry; and with the relation of the 
industry to interstate commerce. The industries covered by the Evidence Studies account for 
more than one-half of the total number oi workers under codes. The list of those studies 
follows: 



Automobile Manufacturing Industry 
Automotive Parts and Equipment Industry 
Baking Industry 

Boot and Shoe Manufacturing Industry 
Bottled Soft Drink Industry 
Builders' Supplies Industry 
Canning Industry 
Chemical Manufacturing Industry 
Cigar Manufacturing Industry 
Coat and Suit Industry 
Construction Industry 
Cotton Garnent Industry 
Dress Manufacturing Industry 
Electrical Contracting Industry 
Electrical Manufacturing Industry 
Fabricated Metal Products Mfg. and Metal Fin- 
ishing and Metal Coating Industry 
Fishery Industry 

Furniture Manufacturing Industry 
General Contractors Industry 
Graphic Arts Industry 
Gray Iron Foundry Industry 
Hosiery Industry 

Infant's and Children's Wear Industry 
Iron and Steel Industry 



Leather Industry 

Lumber and Timber Products Industry 

Mason Contractors Industry 

Men's Clothing Industry 

Motion Picture Industry 

Motor Vehicle Retailing Trade 

Needlework Industry of Puerto Rice 

Painting and Paperhanging Industry 
Photo Engraving Industry 

Pluibing Contracting Industry 

Retail Lumber Industry 

Retail Trade Industry 

Retail Tire and Battery Trade Industry 
Rubber Manufacturing Industry 
Rubber Tire Manufacturing Industry 
Shipbuilding Industry 
Silk Textile Industry 
Structural Clay Products Industry 
Throwing Industry 
Trucking Industry 

Waste Materials Industry 
Wholesale and Retail Food Industry 
Wholesale Fresh Fruit and Vegetable Indus- 
try 
Wool Textile Industry 



THE STATISTICAL MATERIALS SERIES 



This series is supplementary to the Evidence Studies Series. The reports include data 
on establishments, firms, employment, payrolls, wages, hours, production capacities, ship- 
ments, sales, consumption, stocks, prices, material costs, failures, exports and imports. 
They also include notes on the principal a.uali fications that should be observed in using- the 
aata, the technical methods employed, and the applicability of the material to the study of 
the industries concerned. The following numbers appear in the series: 
9T6S— 5. 



- VI - 

Asphalt Shingle and Roofing Industry Fertilizer Industry 

Business Furniture Funeral Supply Industry 

Candy Manufacturing Industry Glass Container Industry 

Carpet and Rug Industry Ice Manufacturing Industry 

Cement Industry Knitted Outerwear Industry 

Cleaning and Dyeing Trr.de Paint, Varnish, and Lacquer, Mfg. Industry 

Coffee Industry Plumbing Fixtures Industry 

Copper and Brass Mill Products Industry Rayon and Synthetic Yarn Producing Industry 

Cotton Textile Industr„ Salt Producing Industry 

Electrical Manufacturing Industry 

THE COVERAGE 

The original, and approved, plan of the Division of Review contemplated resources suf- 
ficient (a) to prepare some 1200 histories of codes and NRA units or agencies, (b) to con- 
solidate and index the NRA files containing some 40,000,000 pieces, (c) to engage in ex- 
tensive field work, (d) to secure much aid from established statistical agencies of govern- 
ment, (e) to assemble a considerable number of experts in various fields, (f) to conduct 
approximately 25% more studies than are listed above, and (g) to prepare a comprehensive 
summary report. 

Because of reductions made in personnel and in use of outside experts, limitation of 
access to field work and research agencies, and lack of jurisdiction over files, the pro- 
jected plan was necessarily curtailed. The most serious curtailments were the omission of 
the comprehensive summary report; the droppir.g of certain studies and the reduction in the 
coverage of other studies; and the abandonment of the consolidation and indexing of the 
files. Fortunately, there is reason to hope that the files may yet be cared for under other 
auspices. 

Notwithstanding these limitations, if the files are ultimately consolidated and in- 
dexed the exploration of the NRA materials will have been sufficient to make them accessible 
and highly useful. They constitute the largest and richest single body of information 
concerning the problems and operations of industry ever assembled in any nation. 

L. C. Marshall, 
Director, Division of Review. 
9768—6.