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'In bramble of chicanery belated justice stands': Early Judicial Interpretations of the Factories and Shops Act 1896 (Vic)
Rohan Price*
In the late nineteenth century the Victorian judiciary carried out the policy objective of the parliament to respond to the evil of sweating without jeopardising economic recovery or promulgating a living wage. It did this through a legally formalistic interpretation of the Factories and Shops Act 1896 which precluded the backpayment of underpaid employees, rejected a universal living wage and any significant role in setting economic policy. The bench effectively complemented the approach of the legislature which wished to avoid a fully-blown system of arbitration.
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| This article assesses a crucial era in Victorian history and is concerned with why anti-sweating legislation of the late 1890s was enacted and interpreted in the limited way it was. Unlike a number of other contributions to this field of study, we focus here not on the effect of wages boards on a particular segment of the working population, but rather on the demonstrable legal and economic origins of the Factories and Shops Act 1896 (Vic) (hereafter the 1896 Act). This focus raises a key question. Why was the wages board system conceived so narrowly and held generally in abeyance by Victorian parliamentary and judicial officers throughout the late nineteenth and early twentieth centuries? This article assesses the merits of two possible answers. |
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Firstly, wages boards and the promotion of minimum wages on an industrial basis in 1896 were conceived as mere 'add-ons' to the occupational health and safety ideals of the extant Factories and Shops Act 1885 (Vic) (hereafter the Act of 1885). There were, after all, only a few of the worst sweated trades covered by the 1896 Act, including the baking and boot-making industries and the manufacturing of men's and boys' clothing, shirts, cuffs and collars, and women's and girls' underclothing. This narrow scope informed and justified a limited judicial interpretation of the work of wages boards and, in particular, legitimised a general view that a comprehensive approach to wages could await implementation in a way that factory safety initiatives clearly did not after 1885. |
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Secondly, the Supreme Court's limited reading of the legislation as it pertained to wages boards could draw on an alternative rationale from the generally depressed economic conditions prevailing in the 1890s. The dualism was broadly this: even if the legislation gave employees rights to minimum wages, their employers could scarcely afford to pay them. Thus, the focus of the Supreme Court's decision in Fromison v Smith (1897)1 was about the payment by an employer of a penalty for underpaying wages, not back-payment of wages to the aggrieved employee. The rhetoric of the bench was about keeping the employer in business and not the recognition of a truly remedial right of an employee in a case of underpayment (in the absence of evidence that this was the intention of parliament). A host of other decisions by the Court also attest to the narrow and legalistic treatment of the wages board system to secure economic outcomes usually contrary to the interests of employees. |
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