The standard of‘fair and reasonable’must therefore be something else, and
I cannot think of any other standard appropriate than the normal needs of an
average employee, regarded as a human being in a civilised community.
(CCA 1907, p. 34)Thus, enshrined in this process was the principle that the labour market, left
to its own devices, could not be relied on to deliver desirable outcomes and,
indeed, would deliver undesirable outcomes. Therefore, it was necessary for
government (or their appointed judiciary) to impose what they regarded as
desirable. Strangely, to some at least, this view still holds sway among many in
Australia today, probably best manifest in the 2007 election where the defin-
ing issue was the LNP Coalition’s attempt to deregulate the labour market.
The Harvester judgement was made under the Excise Act of 1906, not the
Conciliation and Arbitration Act of 1904. Higgins’judgement was resisted by
Sunshine Harvester, and, in 1908, the High Court declared the use of the
Excise Act to set a wage unconstitutional (High Court of Australia 1908). For
all that, the‘Harvester Judgement’is often thought of as a defining point for
the Australian awards system, and, certainly, the repudiation of‘capacity to
pay’established by Higgins became the basis of the setting of the minimum
wage, and, indeed, the authority for setting wages above the minimum.
In addition to the‘basic’(i.e. minimum) wage, in 1919‘penalty rates’for
work during‘unsocial’hours was introduced by the Court for work on Sundays:
The [extra rate for Sunday work] is given because of the grievance of losing Sunday
itself—the day for family and social and religious reunion, the day on which one’s
friends are free, the day that is the most valuable for rest and amenity under our
social habits...
The norm of work should be six week days and Sundays free, the departure
from the norm should be two time-and-a half rates, which is equivalent to one
double rate. (CCCA 1919)In 1947 penalty rates were extended to Saturdays,‘the great day of recreation...
on which competitive sports and various forms of organised social activities and
public entertainment are held’(CCCA 1947), and in subsequent awards a myr-
iad of other penalty rates for working‘unsocial hours’were introduced.
But, contrary to common myth, Arbitration and Conciliation—which was
the legal basis for tribunal-determined wage rates—had, in origin, nothing to
do with setting‘decent’living standards, but everything to do with settling
industrial disputes.
Whether the Act succeeded in‘preventing and settling’industrial disputes is
arguable, on both empirical and a priori grounds. In terms of frequency of
disputes, one international comparison of the 1940s found disputes in Aus-
tralia three times as frequent as in the UK,five times as frequent as in the USA,
and ten times as frequent as in Canada (Higgins 1951). It could also be argued
Phil Lewis