483:
not of the
Judiciary, to deal with social and economic problems; it is for the Judiciary to apply, and, when necessary, interpret the enactments of the Legislature. But here this whole controversial problem, with its grave social and economic bearings, has been committed to a judge, who is not, at least directly, responsible, and who ought not to be responsible to public opinion. even if the delegation of duties should be successful in this case, it by no means follows that it will be so hereafter. I do not protest against the difficulty of the problem, but against the confusion of functions and against the failure to define, the shunting of legislative responsibility. It would be almost as reasonable to tell a Court to do what is 'right' with regard to real estate, and yet lay down no laws or principles for its guidance. In the course of the long discussion of this case, I have been convinced that the President of this Court is put in a false position. The strength of the Judiciary in the public confidence is largely because the judge has not to devise great principles of action as between great classes, or to lay down what is fair and reasonable between contending interests in the community; but has to carry out mandates of the Legislature evolved out of the conflict of public opinion after debate in Parliament. I venture to think that it will not be found wise to bring the judicial department within the range of political fire....
607:, rejecting an application for equal pay for women, deciding that this would represent equal pay for unequal work. His Honour held that women should only be awarded the full male rate where there was the risk of cheap female labour displacing men, setting a common rate for fruit pickers of 1 shilling per hour. The work of packing at the factory was "essentially adapted for women with their superior deftness and the suppleness of fingers" and this apparently justified a lower minimum wage of 9 pence per hour, which would provide for the woman's food, shelter and clothing but not that of her family. Until World War II, the female basic wage was, generally speaking, approximately 54 per cent of the male basic wage. The assumptions of a male bread winner and female domestic carer have been criticised as a deliberate policy of discouraging women in the paid workforce, reflecting a flawed understanding of work and care where the normative worker of the labour market is without responsibilities to care for others. It thus ensured the continuance of the women's inferior place in the paid work force, only entitled to equal wages if their work threatened the position of men.
494:" for labour, with the pressure for bread on the one side, and the pressure for profits on the other. 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. If, instead of individual bargaining, one can conceive of a collective agreement – an agreement between all the employers in a given trade on the one side, and all the employees on the other – it seems to me that the framers of the agreement would have to take as the first and dominant factor the cost of living as a civilised being. If A lets B have the use of his horses on the terms that he gives them fair and reasonable treatment, I have no doubt that it is B's duty to give them proper food and water, and such shelter and rest as they need; and, as wages are the means of obtaining commodities, surely the State in stipulating for fair and reasonable remuneration for the employees means that the wages shall be sufficient to provide these things, and clothing and a condition of frugal comfort estimated by current human standards.
389:
354:. He successfully argued at the 1897-1898 conventions that the constitution should contain a guarantee of religious freedom, and also a provision giving the federal government the power to make laws relating to the conciliation and arbitration of industrial disputes. The industrial disputes proposal was initially unsuccessful, however Higgins was undeterred and succeeded in 1898. Despite these successes, Higgins J had opposed the draft constitution produced by the convention as too conservative, and campaigned unsuccessfully to have it defeated at the 1899 Australian constitutional referendum.
534:, which gave rise to Higgins's decision, was constitutionally invalid because the legislation was essentially concerned with the regulation of employment conditions, a power not held by the Commonwealth Parliament and not capable of being supported by the excise power. The High Court further found a tax based on compliance with certain labour conditions which could differ from State to State was a discrimination within the meaning of section 51(ii) and a preference within the meaning of section 99.
31:
422:
unions. Other applicants were told that the Court, in dealing with their application, would be limited to the information obtained in McKay's hearing unless there was some exceptional circumstances. Several large manufacturers were represented in the hearing, but did not call any evidence. The hearing took place in
Melbourne over 20 days between 7 October 1907 to 1 November 1907.
365:, but was in broad agreement with the Labor party's social reforms. When the Labor Party sought to amend the Conciliation and Arbitration Bill to cover state railway employees, Higgins was one of the radicals who supported the amendments and helped bring down Deakin's government. When Labor formed a minority government in 1904, Higgins became Attorney-General in the
447:, led evidence from employees of McKay's factory and also their wives, union officials and others dealing with everything from the conditions at the factory and elsewhere to the cost of living, including the "reasonable enjoyments that a man enjoys in that state of life". Higgins J gave his judgment on 8 November 1907.
431:
reasonable wages that took into account their level of skill, experience, age, qualifications, complexity of work, equipment used, and level of danger. The employees at the
Sunshine Harvester factory required less skill, judgement and discretion because of mechanisation which had simplified and standardised the work.
585:
In response to the High Court decision, McKay stated "The Excise Act was declared to be ultra vires - The
Federal Parliament had gone beyond its powers, all the ingenuity and eloquence spent on the measure, all the litigation devoted to its practical enforcement, and all the elaborate conditions laid
482:
One finds that the
Legislation has not indicated what is meant by 'fair and reasonable,' what is the model or criterion by which fairness and reasonableness are to be determined. It is to be regretted that the Legislature has not given a definition of the words. It is the function of the Legislature,
507:
Higgins J thought the probable effect of the decision would be that McKay must elect between paying wages according to the standard he set or paying the excise duties. McKay did neither and both McKay and another manufacturer of agricultural machinery in
Melbourne, William Barger, were prosecuted by
232:
which imposed an excise duty on goods manufactured in
Australia, £6 in the case of a stripper harvester, however if a manufacturer paid "fair and reasonable" wages to its employees, it was excused from paying the excise duty. The Court therefore had to consider what was a "fair and reasonable" wage
593:
on the subject of wages boards and collective bargaining, stating "I do not agree with the basic wage for the
Commonwealth. In other parts of the world it is a minimum wage for the minimum man and a maximum wage for the maximum man - each man according to his ability and capacity. God did not make
335:
are, on an application made for the purpose to the
President of the Commonwealth Court of Conciliation and Arbitration, declared to be fair and reasonable by him or by a Judge of the Supreme Court of a State or any person or persons who compose a State Industrial Authority to whom he may refer the
502:
I regard the applicant's undertaking as a marvel of enterprise, energy and pluck… he is allowed – if my view of the Act is correct – to make any profits that he can and they are not subject to investigation. But when he chooses, in the course of his economies, to economise at the expense of human
1096:
The unions were the
Agricultural Implement Makers' Society; the Amalgamated Ironmoulders; the Amalgamated Iron Foundry Employees; Tinssmiths' and Iron-workers' Society; and the Iron-workers' Assistants' Society, the Federated Sawmill, Timber Yard, and General Woodworkers' Union; the Amalgamated
430:
McKay's case was that fair and reasonable wages should be calculated according to the worth of each individual to the business and led evidence from eight witnesses, including from the factory superintendent, McKay's brother George. George McKay's evidence was that the workers received fair and
421:
McKay's was one of 112 applications by manufacturers of agricultural machinery in Victoria and his application was selected as a test case because the factory was one of the largest, and had the greatest number and variety of employees and because his application was strongly opposed by various
557:
described the Harvester judgment as foundationally important, stating "The philosophy was so right and so in tune with the Australian ethos that it spread. And not just through federal jurisdiction - it became embraced by various state jurisdictions. I think it is impossible to overstate the
455:
Higgins J held that for McKay to pay a fair and reasonable wage meant paying his employees a wages that met "the normal needs of an average employee, regarded as a human being in a civilised community", regardless of his capacity to pay. This gave rise to the legal requirement for a
470:
of 1891, an open letter to all the bishops that addressed the condition of the working classes. Higgins ruled that remuneration "must be enough to support the wage earner in reasonable and frugal comfort." A 'fair and reasonable' minimum wage for unskilled workers of 7/-
602:
The Court determined that a fair and reasonable wage was to be determined according to the needs of a male worker not according to the worker's value to the employer. What then was a fair and reasonable wage for a female worker? Higgins J considered this in 1912 in the
512:
1906 was invalid. That objection was referred to the Full Court of the High Court for hearing. While this is sometimes referred to as an appeal, this was not a direct challenge to the Harvester judgement and Higgins sat as one of the five judges in the High Court.
486:
The provision for 'fair and reasonable' remuneration is obviously designed for the benefit of the employees in the industry; and it must be meant to secure to them something which they cannot get by the ordinary system of individual bargaining with employers....
562:
was critical of the decision, describing it as a deeply flawed decision representing a failed policy that was strong on sentiment that failed to consider the ability of employers to pay nor acknowledged geographical differences in the cost of living.
243:
that was sufficient for "a human being in a civilised community" to support a wife and three children in "frugal comfort", while a skilled worker should receive an additional margin for their skills, regardless of the employer's capacity to pay.
261:, the judgment nevertheless continued to be the basis for the minimum wage system that extended to half of the Australian workforce in less than 20 years. The decision was credited as the foundation for the national minimum wage included in the
403:
was one of Australia's largest employers, manufacturing agricultural machinery, most notably the Sunshine Harvester. McKay had a reputation for discouraging union membership, and had previously closed his factory at Ballarat and moved to the
412:
1906, he was required to pay an excise tax unless he paid wages that were fair and reasonable. McKay applied to the Commonwealth Court of Conciliation and Arbitration for a declaration that the wages paid by him were fair and reasonable.
287:"New Protection" policy was to provide tariff protection to employers in exchange for "fair and reasonable" wages for employees. In implementing this policy, the Commonwealth government introduced two bills, that would become the
503:
life, when his economy involves the withholding from his employees of reasonable remuneration, or reasonable conditions of human existence, then, as I understand the Act, Parliament insists on the payment of the Excise duty.
550:, Higgins regarded the minimum wage as sacrosanct and applied the Harvester reasoning to subsequent judgments in his career as president of the Conciliation and Arbitration Court.
594:
men equal - it is no use trying to pretend He did, or to make laws as though He did, or to pay people according to their requirements instead of according to their services."
1191:
577:
described it as a triumph of Equity and that it marked the beginning of an epoch, with the inclusion of the last phase of human life left outside the scope of law.
717:
311:
Provided that this Act shall not apply to goods manufactured by any person in any part of the Commonwealth under conditions as to remuneration of labour which—
967:
952:
767:
1121:
Kevin Blackburn, The living wage in Australia: a secularization of Catholic ethics on wages, 1891–1907, Journal of Religious History 20 (1996), 93-113.
319:
225:
41:
1164:
911:
542:
The judgment dominated Australian economic life for the next 60 to 80 years. Higgins's 1907 Harvester decision was regarded as a benchmark in
850:
1445:
616:
388:
1087:
in the case name is used to indicate "on the application" of McKay, not in the alternate sense of being heard in the absence of a party.
299:
and spoke in support of the bills that imposed custom and excise duties that were payable on certain agricultural machinery, including
1250:
472:
957:
H Higgins at p. 782, vote at p. 793, 12 in favour, including Higgins & Isaacs, 22 opposed, including Barton & O'Connor.
307:
1906 contained a proviso that the excise would not be payable if the manufacturer paid "fair and reasonable" wages as follows:
1006:
475:), which is around 70 cents, or 42/- per week. Later surveys showed that this minimum was adequate to provide subsistence.
1391:
1475:
858:
444:
993:
728:
1465:
1229:
796:
155:
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103:
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95:
91:
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79:
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the Commonwealth for failing to pay the excise. The defences of Barger and McKay included an objection that the
1470:
998:
825:
380:
resigned as President of the Commonwealth Court of Conciliation and Arbitration and was replaced by Higgins J.
972:
vote at p. 212, 22 in favour, including Higgins & Isaacs, 19 opposed, including Barton & O'Connor.
1327:
1450:
879:
1460:
1455:
1411:
1325:
Rural Workers' Union v Mildura Branch of the Australian Dried Fruits Association (Fruit pickers case)
644:
558:
significance of both the judgement and its author, Henry Bournes Higgins." Conservative commentator
69:
968:"Official Record of the Debates of the Australasian Federal Convention, Melbourne, 27 January 1898"
405:
1375:
1217:
1097:
Carpenters; the Coachbuilders' and the Wheelwrights' Society and the Certificated Engine-drivers.
814:
753:
373:
358:
248:
1362:
953:"Official Record of the Debates of the Australasian Federal Convention, Adelaide, 17 April 1897"
460:. In defining a 'fair and reasonable wage', Higgins (without explicit acknowledgement) employed
1342:
1192:"Dairy Industry Adjustment Bill 2000-Constitutional Issues (Current Issues Brief 14 1999-2000)"
862:
491:
347:
300:
280:
276:
1280:
988:
923:. Commonwealth of Australia: House of Representatives. 21 September 1906. pp. 5138–5150.
573:
543:
296:
221:
1395:
695:
176:
1304:
8:
724:
699:
362:
267:
2009. As well as national ramifications, the decision was of international significance.
180:
1308:
776:. Commonwealth of Australia: House of Representatives. 25 November 2008. p. 11189.
490:
The remuneration could safely have been left to the usual, but unequal, contest, the "
1225:
1143:
1020:
1012:
1002:
934:
892:
821:
792:
664:
439:
435:
400:
315:
are declared by resolution of both Houses of Parliament to be fair and reasonable; or
586:
down by the Arbitration Court and by the Customs authorities, crumbled to nothing."
1246:
559:
393:
239:
declared that "fair and reasonable" wages for an unskilled male worker required a
366:
1354:
1275:
1065:
1045:
1434:
1084:
1016:
466:
461:
284:
263:
1024:
408:
to avoid paying workers under the determination of a wages board. Under the
328:
are in accordance with the terms of an industrial agreement filed under the
30:
1165:"The Federal Conciliation and Arbitration Power: from Cradle to the Grave?"
590:
416:
351:
236:
201:
882:
requires separate laws that deal exclusively with customs and with excise.
392:
Sunshine Harvester on display at the Campaspe Run Rural Discovery Centre,
1284:. 14 November 1907. p. 12 – via National Library of Australia.
240:
1054:. 8 October 1904. p. 11 – via National Library of Australia.
690:
526:
457:
361:, Higgins was a member of the Australian Parliament as a member of the
257:
171:
1374:
Chapman, A "Industrial Law, Working Hours and Work, Care and Family"
1131:
1074:. 9 August 1906. p. 8 – via National Library of Australia.
554:
1139:
1070:
1050:
919:
772:
1294:
Hugh Victor McKay, Museum of Victoria, Old Mckay Archives, B6/81
571:
Then, as now, the reaction to the Harvester decision was mixed.
516:
369:, because Labor had no suitably qualified lawyer in Parliament.
1105:
1103:
1100:
791:. Sunshine & District Historical Society Incorporated.
417:
The hearing in the Court of Conciliation and Arbitration
1392:"Waltzing Matilda and the Sunshine Harvester Factory"
718:"Waltzing Matilda and the Sunshine Harvester Factory"
318:
are in accordance with an industrial award under the
1412:"Fact and myth: Reflections on why Higgins made the
637:
635:
633:
631:
1410:WM Robbins; I Harriss; R Macklin (February 2005).
813:
350:and in 1896 supported the trial introduction of a
330:Commonwealth Conciliation and Arbitration Act 1904
226:Commonwealth Court of Conciliation and Arbitration
42:Commonwealth Court of Conciliation and Arbitration
816:Australia: A Concise Political and Social History
628:
1432:
1359:Women, 'Atypical' Work Relationships and the Law
1320:
1318:
1245:
1198:. Parliament of Australia, Parliamentary Library
1171:. Parliament of Australia, Parliamentary Library
1162:
789:Harvester Town: The making of Sunshine 1890-1925
701:
183:
1305:"Letter from HV McKay to William Morris Hughes"
927:
982:
980:
978:
1315:
1189:
937:Commonwealth Conciliation and Arbitration Act
912:"Excise Tariff (Agricultural Machinery) Bill"
425:
372:In October 1906 Higgins was appointed to the
321:Commonwealth Conciliation and Arbitration Act
1426:Full text of Judgment in Ex Parte H.V. McKay
746:
715:
685:
683:
681:
679:
659:
657:
655:
653:
975:
945:
885:
811:
617:White Paper on Full Employment in Australia
566:
1224:. Sydney: Allen & Unwin. p. 101.
1216:
29:
1409:
1276:"The Harvester Excise and Human progress"
1130:
1109:
960:
676:
650:
597:
1078:
869:
387:
1421:. airaanz.econ.usyd.edu.au/papers.html.
986:
589:In 1922, McKay wrote to Prime Minister
546:. Despite the High Court's reversal in
346:H. B. Higgins had been a member of the
1433:
845:
843:
841:
839:
837:
989:"Higgins, Henry Bournes (1851–1929)"
786:
580:
478:Higgins's judgment read as follows:
383:
279:was in power, with support from the
1251:"Failed policy strong on sentiment"
855:Federation Story: A Fair Go Economy
13:
1446:Employee compensation in Australia
994:Australian Dictionary of Biography
834:
295:1906, Higgins was a member of the
14:
1487:
1384:
498:Higgins also said the following.
1163:Dr Andrew Frazer (28 May 2002).
1136:Foundations of the Welfare State
341:
1368:
1348:
1333:
1297:
1288:
1268:
1239:
1210:
1183:
1156:
1124:
1115:
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1058:
1038:
920:Parliamentary Debates (Hansard)
904:
773:Parliamentary Debates (Hansard)
537:
450:
1376:[1993] MonashULawRw 31
1222:100 Years- The Australian tory
1190:Bernard Pulle (7 March 2000).
999:Australian National University
805:
780:
760:
709:
214:, commonly referred to as the
16:Australian labour law decision
1:
820:(2nd ed.). p. 188.
622:
520:struck down by the High Court
270:
1363:[1993] MelbULawRw 18
1307:. 10 March 1922 – via
941:. Commonwealth of Australia.
899:. Commonwealth of Australia.
671:. Commonwealth of Australia.
233:for the purpose of the act.
7:
610:
434:The unions, represented by
228:. The case arose under the
10:
1492:
1476:Australian labour case law
716:Hamilton, RS, ed. (2011).
426:The evidence and arguments
1343:[2011] FWAFB 2700
1255:The Sydney Morning Herald
851:"The Harvester Judgement"
197:
192:
166:
161:
75:
65:
57:
47:
37:
28:
23:
1466:1907 in economic history
567:Contemporaneous reaction
524:The High Court found in
406:Sunshine Harvester Works
277:second Deakin government
1340:Equal Remuneration Case
1046:"The strangling tariff"
376:and the following year
359:federation of Australia
249:High Court of Australia
1441:1907 in Australian law
1196:Law Internet Resources
1169:Law Internet Resources
987:Rickard, John (1983).
861:. 2001. Archived from
598:No equal pay for women
553:Former Prime Minister
505:
496:
492:higgling of the market
397:
396:, Victoria, Australia.
348:Parliament of Victoria
339:
313:
253:Excise Tariff Act 1906
251:in 1908 held that the
230:Excise Tariff Act 1906
1471:Industrial agreements
768:"Fair Work Bill 2008"
696:[1908] HCA 43
544:Australian labour law
500:
480:
391:
309:
297:Australian Parliament
222:Australian labour law
177:[1908] HCA 43
1396:Fair Work Commission
1249:(18 December 2007).
865:on 18 February 2002.
812:Clarke, F G (1992).
787:Ford, Olwen (2001).
52:Ex Parte H.V. McKay
725:Fair Work Australia
642:Ex parte H.V. McKay
363:Protectionist Party
301:stripper harvesters
211:Ex parte H.V. McKay
156:Fri 1 November 1907
152:Thu 31 October 1907
148:Wed 30 October 1907
144:Tue 29 October 1907
140:Mon 28 October 1907
136:Fri 25 October 1907
132:Thu 24 October 1907
128:Wed 23 October 1907
124:Tue 22 October 1907
120:Mon 21 October 1907
116:Fri 18 October 1907
112:Thu 17 October 1907
108:Wed 16 October 1907
104:Tue 15 October 1907
100:Mon 14 October 1907
96:Fri 11 October 1907
92:Thu 10 October 1907
1309:Museum of Victoria
1066:"New Wages Boards"
895:Customs Tariff Act
754:Fair Work Act 2009
605:Fruit pickers case
398:
289:Customs Tariff Act
167:Subsequent actions
88:Wed 9 October 1907
84:Tue 8 October 1907
80:Mon 7 October 1907
24:Harvester Judgment
1451:Arbitration cases
1355:Owens, Rosemary J
1008:978-0-522-84459-7
667:Excise Tariff Act
581:McKay's criticism
410:Excise Tariff Act
401:Hugh Victor McKay
384:Hugh Victor McKay
305:Excise Tariff Act
293:Excise Tariff Act
283:. Prime Minister
207:
206:
1483:
1461:1907 in politics
1456:1907 in case law
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1247:Gerard Henderson
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727:. Archived from
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687:
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672:
661:
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639:
560:Gerard Henderson
530:(1908) that the
442:
224:decision of the
220:, is a landmark
193:Court membership
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33:
21:
20:
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1490:
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1398:
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1387:
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1373:
1369:
1353:
1349:
1338:
1334:
1328:(1912) 6 CAR 61
1323:
1316:
1303:
1302:
1298:
1293:
1289:
1274:
1273:
1269:
1259:
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1215:
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1201:
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1142:. p. 383.
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1101:
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828:
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806:
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781:
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765:
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751:
747:
737:
735:
734:on 5 March 2016
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720:
714:
710:
688:
677:
663:
662:
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640:
629:
625:
613:
600:
583:
569:
540:
532:Excise Act 1906
522:
518:Excise Act 1906
453:
438:
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344:
273:
255:was invalid in
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61:8 November 1907
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5:
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1385:External links
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645:(1907) 2 CAR 1
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162:Case history
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473:7 shillings
281:Labor party
241:living wage
76:Transcripts
1435:Categories
1401:29 October
1281:The Worker
1218:Paul Kelly
1112:, p 488-9.
1030:22 October
827:0729513092
738:29 October
691:R v Barger
623:References
574:The Worker
548:R v Barger
527:R v Barger
510:Excise Act
458:basic wage
378:O'Connor J
374:High Court
357:After the
271:Background
258:R v Barger
247:While the
172:R v Barger
1416:decision"
1414:Harvester
1365:at p 407.
1260:28 August
1202:28 August
1175:28 August
1132:Pat Thane
1017:1833-7538
880:s 55
700:(1908) 6
555:Bob Hawke
202:Higgins J
182:(1908) 6
1220:(2001).
1134:(1982).
1085:Ex parte
1025:70677943
611:See also
285:Deakin's
66:Citation
1140:Longman
1071:The Age
1051:The Age
336:matter.
58:Decided
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394:Elmore
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325:,; or
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1403:2016
1345:at .
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1144:ISBN
1032:2016
1021:OCLC
1013:ISSN
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443:and
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