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Making Liberal Citizens: Justice Higgins and His Witnesses
Mark Hearn*
In the Commonwealth Arbitration Court's treatment of women workers the contradictions and tensions of liberal citizenship in post-federation Australia are sharply manifest. A meaningful sense of citizenship required economic rights and economic independence as a basis for participation in the public sphere, a civic participation offered to men but denied to women. The Commonwealth and state industrial tribunals played a key role in defining the gendered spheres of citizenship: transforming citizenship from a vague concept of rights and duties to an active relationship between liberal subject and state required specific interventions to promote self-government, and within discrete systems of governance. The specific interventions under consideration here are two cases that established the Commonwealth Arbitration Court's discrimination against women in the payment of wages, as the Court's president, Justice Henry Bournes Higgins, grappled with the 'problem' of female labour: in the 1912 Fruitpickers case, where the witnesses called before Higgins, told him that discriminating against women in the payment of wages was unjust and could undermine the stable nation-building that Higgins' living wage was intended to promote; and the 1919 Clothing Trades or Archer case, as Higgins struggled to impose his conception of citizenship on women workers, whose needs and rights challenged Higgins, and confronted him with successful invaders of his new province for law and order.
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| The historiography of Australian clothing trades and fruit industry workers in the early twentieth century has considered their work relations, and the union mobilisation that both represented and at times marginalised their female membership.1 Ruth Ford has recently focused on the 1912 Fruitpickers case, where Justice Henry Bournes Higgins established the terms of discrimination against women workers that was subsequently developed in decisions handed down in the Commonwealth Arbitration Court during his term as president in the period 1907–21.2 This article elaborates on these themes by considering attempts by Justice Higgins to impose ideals of liberal citizenship on workers appearing before him, an acceptance of self-discipline and limited rights in exchange for the benefits provided by the Court, and to explore this process at work in the exchanges between bench, counsel and witness. It is in Higgins' resistance to the provision of equal pay for women workers that the contradictions and tensions of his notion of liberal citizenship in a civilised community were most sharply manifested. The transcripts of the Commonwealth Arbitration Court clarify that these contradictions were present from Higgins' first efforts to address 'the problem of female labour', as he described the task which confronted him.3 The transcript of two cases reveals the consequences of Higgins' attempts to grapple with the problem of imposing his views on the heterogeneous experience and problematic submissions of those appearing before him: in the Fruitpickers case, where the witnesses called before Higgins told him that discriminating against women in the payment of wages was unjust and could undermine the stable nation-building that Higgins' minimum wage was intended to promote, and in the 1919 Archer case, as women workers challenged Higgins with successful invaders to his self-styled 'new province for law and order', the term he employed to describe his mission.4 |
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Higgins' Liberal Citizenship | |
| Craig Campbell has argued that Australian liberalism in the period 1880–1920 was characterised by limited forms of state intervention in capitalist market forces to 'relieve the tensions of a class-divided society', while leaving the sources of those tensions untouched.5 Higgins championed the cause of compulsory industrial arbitration as a mechanism for easing class conflict within liberal capitalism as a delegate to the 1890s federal conventions that framed the new Australian Constitution, and in his subsequent career as a member of the Commonwealth Parliament. Higgins was sworn-in as a justice of the High Court of Australia in late 1906 and took up his duties as Arbitration Court president in the following year, believing he could help fulfil the liberal mission on behalf of the developing nation. His judgements frequently reiterated his concern to protect 'great Australian industry' such as the Sunshine Harvester works, the innovative irrigation industries of the Riverina and the 'national asset of manhood' found in the Boot Trades. As Higgins observed, his protective role would reflect restrained liberal interventionism, cultivating the right of managers to manage their enterprises, while relieving workers and their families, through the 'living' or minimum wage established as precedent in the 1907 Harvester judgement, of their 'materialistic anxieties' so their potential as producers and citizens might flourish, free from undue state interference, in a 'civilised community'.6 |
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Australian citizenship has been defined as simply involving the 'membership of a political community' enjoying certain rights and responsibilities within a liberal democracy.7 Hudson and Kane argue that in the early twentieth century 'Australian citizenship was conceived largely in statist and passive terms'.8 This interpretation underestimates the awakening of an awareness of rights and duties that influenced interventionist liberalism in the period, cultivating self-governing subjects.9 Stuart Macintyre observes that colonial liberalism in Australia encouraged 'the autonomous, self-sufficient individual', bearing the burden of 'self-government' into the public sphere. In the context of the emerging nation this liberalism was understood to have a rare opportunity for development, 'in terms of an absence of history and a corresponding freedom to invent the future'.10 As president of the Arbitration Court Higgins believed that he could play a role in inventing the liberal future, declaring his intention of creating a 'new province' in 1906, through his responsibility to implement the Commonwealth Conciliation and Arbitration Act 1904.11 |
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In the early twentieth century the industrial arbitration tribunals acknowledged that the entitlement of male breadwinners to a living wage for themselves and their families should establish a basis for male participation in the public sphere, as Higgins outlined in Harvester's list of the self-improving pleasures and duties of newspapers, church, charity and union dues, which he anticipated could be provided for in his minimum wage system.12 Transforming citizenship from a vague concept of rights and duties to an active relationship between liberal subject and state required specific interventions to promote self-government; interventions that could serve to promote the status of the male breadwinner or to deny challenges to that status. That was why Higgins applied the 'Harvester test' to Florence Wootten, a clothing trades worker and witness in the 1919 Archer case, and found her failure to provide for self-improving journals, church fees and sickness benefits from her modest wage emblematic of an inability or unwillingness to 'furnish the mind' of a dutiful citizen – revealing her own failings, but with an implication that it also justified the marginalisation of women in employment and the public sphere.13 |
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Higgins' opportunistic treatment of Wootten's evidence, a lesson he seized on and reiterated in the hearings and the subsequent judgement, reflects a notion of citizenship that was not a tightly structured declaration but evolved from the organic nature of liberalism, seeking the appearance of natural development by emerging from experience.14 Higgins observed that he had to create his new province 'with no book of instructions, no teacher other than experience'.15 Higgins fulfilled his responsibility as a self-governing subject by extending the scope and depth of liberal governance, and felt he was part of this process, a duty he had to bear and which must be borne by others, validated by the evidence of experience. Higgins' deployment of Florence Wootten's evidence is not an incidental feature of the Archer hearings and judgement, but a central expression of the gendered liberal governance he imposed. In the Fruitpickers case the testimony of Olive Gray provided Higgins with an opportunity to assert the fundamental significance of normal gender and patriarchal relations for the structure of his new province. |
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Higgins' judgements reflected, as Marilyn Lake argues, a gendered discrimination of citizenship,
a distinction between the public and private spheres ... public man or the active citizen was freed from the demands of the private sphere because slaves or women have attended to his domestic affairs.
Yet with the passing of the Commonwealth Franchise Act 1902 providing women with the right to vote, Australia's pioneer feminists were determined to claim a space for the 'woman citizen' in the public sphere.16 |
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First-wave feminists believed that if women were to be fully recognised as citizens of the new Commonwealth of Australia they should be paid on equal terms with men, and these feminists drew a clear linkage between equal pay and citizenship. As Lake observes, this agenda was given focus by 'the personal dependence in men' that resulted from the imposition of male breadwinner 'family wage'. 'The contradiction between this condition of personal dependence and citizenship's promise of individual liberty was feminism's abiding preoccupation during the post-suffrage decades in Australia', generating a 'political program' which included equal pay.17 As Vida Goldstein declared in 1901: 'we've won the constitutional right of equality (the vote) now we must win the economic right of equality (equal pay)'.18 Desley Deacon draws attention to the network of women's political and industrial organisations in New South Wales which campaigned 'to widen women's political and economic participation' in the early twentieth century, including the demand for equal pay.19 First wave feminists sought trade union support for the equal pay campaign from unions, yet as the evidence of this article indicates, trade union attitudes towards equal pay in the period were ambiguous: there were divisions within the union movement over whether or not to support equal pay – or whether it was a practically achievable outcome in the context of prevailing values and industrial conditions. There were unions, such as the Federated Clothing Trades Union in the Archer case, simply resistant to the notion of representing women workers; yet in the context of 1912 Fruitpickers case the representative unions supported a claim for equal pay. |
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In his 1912 and 1919 judgements Higgins followed the prevailing gender convention that women should focus their lives around the home as mothers and dependent spouses, and should be discouraged from participation in the workforce. Higgins' adaptation of these assumptions was distinguished by his unusually influential position as the president of the Commonwealth Arbitration Court. As Ryan and Conlon observe, Higgins sat alone on the bench from 1907 until 1913, and exercised an extraordinary degree of discrimination in defining his powers, establishing the scope of his hearings and setting precedent under federal industrial law.20 Above all, Higgins' judgements were distinguished by his compelling ability to clarify his mission and the rule of the province of work. No other industrial arbitrator so well defined his task, nor had the ability to generate his own precedents, as George Anderson acknowledged in Fixation of Wages in Australia in 1929. Of the 1912 Fruitpickers case, Anderson observed: 'the principles enunciated by Mr. Justice Higgins in his judgement have been followed by the Court ever since'.21 Significantly A New Province for Law and Order, in which Higgins defined his principles, was a narrative that evolved over the course of Higgins' career on the bench and in which general values of liberal governance were distilled into discrete and practical codes of work regulation, carrying with them the validation provided by the accumulated experience of hearings and judgements.22 |
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Like all historical evidence, transcripts of court cases may be prone to unreliability, reflecting the now obscured agendas of the contesting parties and the partiality of witness evidence – both in the evidence tendered, and in the selective questioning applied by counsel or from the bench. Transcripts may also yield sharply clarifying evidence. The transcript of the Fruitpickers and Archer cases illustrate the developing process of gender discrimination in a detail available from few other sources. If concepts like citizenship mean anything in relation to the conduct of daily life, it is surely reflected in the exchanges between those who have been authorised to regulate that conduct and their subjects. The transcript of the Fruitpickers and Archer cases captures the unfolding interrogation of working life that soon slips into wider insights and judgements of the lives, and the potential for civic participation, of those called to the Court. |
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Normalising Gender Relations: The Fruitpickers Case | |
| In the 1912 Fruitpickers case Higgins considered an application from the Rural Workers Union and the United Labourers Union for workers in the Riverina fruit industry on the Victoria/South Australia border. Some 2,000 workers picked and packed the fruit in an industry Higgins praised as 'great and growing', developed for the nation from the pioneering irrigation enterprise of the Chaffey Brothers, 'supplying wholesome food for the people'.23 Higgins appeared to support the principle of equal pay by awarding a shilling per hour for both male and female pickers, although he observed in his judgement that there were few women pickers and that 'fortunately for society', most breadwinners were men. Higgins awarded nine pence per hour for the packers – predominantly women who could be paid less for what he deemed was 'lighter' women's work.24 In setting out a lower minimum wage for women workers in the packing sheds, Higgins began to outline the principles that established discrimination in wages paid to men and women, principles which the Court adopted thereafter and which Higgins would elaborate in the Archer case.25 |
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The hearings in the Fruitpickers case were held in Mildura, the centre of the Murray River irrigation and fruit-growing district, in June 1912. The transcript of the case reveals the challenges that were raised to Higgins' denial of equal pay for the women packers, challenges that he chose either to explicitly reject or ignore in his judgement. In his opening submission, D.L. McNamara, the secretary of the Rural Workers Union, told Higgins:
We claim that there should be equal pay for equal work. Where a woman can do equal work with a man there should be no class discrimination and she should be paid equal rates.
The employer's advocate, W.R. Cater, responded that women working the fruit picking blocks and in the packing sheds were 'content' to work for rates less than male rates.26 |
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McNamara's submissions were followed by a number of women workers who testified that their labour and skills were comparable with the men they worked with, or that they were burdened with the same responsibilities placed upon men. Olive Gray packed dried fruits for the Mildura Co-Operative Fruit Company and worked predominantly with other women in the packing sheds. Due to the death of her father she had taken on a breadwinner's role on behalf of her widowed mother and four siblings, the eldest of whom was just fourteen. She received 4s 6d per hour, a rate less than male wages, for an 81/2-hour day. Asked if she was 'perfectly satisfied' with that rate, the 'witness hesitated'. 'Is that a hard question to answer?', Higgins asked, and the employer's advocate explained that the chairman of the Mildura Co-Op's board of directors was present in the hearing room. Higgins pressed her:
His Honor (to witness): Why is it a hard question to answer, (Tell me frankly) whether you are perfectly satisfied with the 4/6 or not. You have just promised to tell the truth, the whole truth and nothing but the truth. I want you to tell me frankly why, and I shall see there is no injury come to you from the answer.
Witness: No, I am not satisfied.
His Honor: Why are you not satisfied? -- A-- Because it does not seem enough. It would be if I only had myself, but I have others to support.
His Honor: I cannot fix wages for those who have others dependent on them and those who have not. By your father's death you have to help your mother. At the same time is that the only reason? -- A -- That is the only reason I have.27
Earlier in the proceedings, as McNamara had elaborated on the Rural Workers Union claim for equal pay, Higgins had cut him off in mid-sentence:
How would you fit that [claim for equal pay] in with the principle I have started with and acted on throughout all the cases of fixing the minimum by the necessity of a small family. A woman is not under an obligation to maintain a husband and children I suppose.
McNamara responded that the Rural Workers Union would present evidence from women breadwinners, who should be paid the same wage as male breadwinners. Higgins replied that 'you must leave exceptional cases out of account, and must deal with normal average cases ... I have to go with the normal case'.28 For Higgins, there was apparently no contradiction between his defence of higher wages for the male breadwinner and telling Olive Gray that 'I cannot fix wages for those who have others dependent on them and those who have not'. Marriage, Higgins decreed in the Harvester judgement, was 'the normal fate of a normal man', from which his function as a breadwinner normally flowed. To emphasise this point, Higgins repeated the Harvester formula in the judgement in the Fruitpickers case.29 A woman could not be a normal breadwinner; a woman breadwinner must be identified as an exception, and the minimum wage, Higgins repeated in the Fruitpickers judgement, 'cannot be based on exceptional cases'. Higgins apparently felt compelled to offer some examples of these exceptions in his judgement, which he had gathered from the tendered evidence, but whose contradictions and suggestions of hardship he obscured with a suggestion of female self-indulgence:
The employer cannot be told to pay a particular employee more because she happens to have parents and brothers and sisters dependent on her; nor can he be allowed to pay her less, because she has a legacy from her grand parents, or because she boards and lodges free with her parents, and merely wants some money for dress. The State cannot ask that an employer shall, in addition to all his other anxieties, make himself familiar with the domestic necessities of every employee; nor can it afford to let a girl with a comfortable home pull down the standard of wages to be paid less fortunate girls who have to maintain themselves.30
That Higgins resorted to disparagement suggests that he struggled to rationalise wage discrimination, and his own rationale seemed to expose the injustices he would perpetuate in the name of imposing a standard of industrial and social normality. Higgins' deployment of the word 'normal' may appear natural, but it was only in the mid-nineteenth century that the term normal assumed its modern meaning, and 'the capacity to identify, measure, instil and regulate through the idea of the norm becomes a key technique of government'. The 'expert' became the key interpreter of normality, the bearer of 'the liberal strategy of government through the inculcation and shaping of private responsibility'.31 As president of the Commonwealth Arbitration Court Higgins had an extraordinary capacity not only to shape discrete employment relationships, but to apply the liberal ideal of intervening in economic relationships between employers and employees which would have the consequence of promoting social and behavioural conventions in the workplace and in the home, for which the individual would bear responsibility. As Foucault observes, although 'normalization imposes homogeneity', it also adjusted individual difference to the requirements of normalisation.32 While Olive Gray was an inauthentic breadwinner, she was none the less bound to her duty as a self-governing subject on behalf of her family, and bound to endure the terms of her employment, as Higgins solemnly reminded her: 'By your father's death you have to help your mother'. Olive Gray was bound to both private and civic duty in the hearing room, in this extraordinary public theatre of liberal governance that had been conveyed by the state to her community, a room filled with her fellow workers, her union representatives, her employer. She could only respond to Higgins' injunction by acknowledging her circumstances with a simple dignity: 'That is the only reason I have'. And which, she seems to imply, was sufficient justification of a fair and reasonable equal wage. |
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Although several woman workers provided detailed testimony in the case, including lengthy periods of cross-examination, little of their testimony was acknowledged in Higgins' judgement. There was a brief acknowledgement of the submissions provided by William Guthrie Spence, the president of the Australian Workers Union, a number of whose itinerant bushworker members also held tickets in the Rural Workers Union. Of the principle of equal pay for equal work, Higgins observed in his judgement that 'Mr Spence, in his thoughtful speech on behalf of the Australian Workers Union, expressly repudiated the phrase', conveying an impression that Spence and the Australian Workers Union supported Higgins' wage discrimination.33 |
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By the time Spence provided a lengthy and indeed thoughtful submission, several days of hearings in Mildura were drawing to a close.34 Significantly, Spence could provide not only a statement of the union position, but also an assessment of the evidence already tendered, as he had been present from the first hearing day; an assessment enhanced for Higgins by Spence's long experience since 1874 as a union official, industrial advocate and ardent supporter of compulsory arbitration.35 Higgins announced to the Court that he welcomed an official from an organisation that shared his peaceful nation building ambitions:
I shall be very glad to get the assistance of an organization so well organised and so powerful as the Australian Workers' Union which has always as far as I know gone for peace and accepting a peaceful arbitration in place of continual strikes.36
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Spence argued that while he did not wish to encourage the employment of women in what should be 'distinctly men's work', he also acknowledged that equal pay 'is a universal idea now and [women] will not rest ... till they secure [it]'. Spence also asserted that 'we have not heard anything to justify the making of a difference between the rates for women and the others' in the employers' submissions.37 It emerged during the hearings that Higgins was inclined to draw a distinction between the predominantly male workers in the fields, workers who might be paid an equal wage without disturbing his living wage system, and the women in the packing sheds, who might be paid less for the careful presentation of the fruit in trays and boxes. This was not 'man's work', Higgins explained to Spence, and could be assessed 'on the normal needs of the average [female] worker' – who needed less than a male breadwinner. Spence replied that if an increased minimum for 'picking and pitting' in the field was 'fair', then 'it must be paid for the whole, otherwise there is a disparity'. Spence added that on the evidence tendered, 'it had not been proved that men could not do the packing of clusters [of raisins] and apricots. That had not been tested'.38 |
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Spence exposed the weaknesses in Higgins' rationalisations of wage discrimination, which forced Higgins to concede that this discrimination could not be sustained by arbitrary assumptions about whether or not men or women were better suited to pack fruit boxes. Higgins bridled at paying a young woman the same as a male breadwinner, anticipating not only the disruption to his carefully crafted wage system, but the reckless subversion of social values and gender roles:
You would not pay a single woman's wage on the same basis as that of a man with a family. It would be absurd. A daughter comes back to her home and her father is earning the living wage and she says, 'I earn as much as you do'.
Spence retorted that 'we would have no right to put the responsibility of an adult grown up girl on her parents'.39 He urged Higgins to recognise the problems facing unmarried women, who required a higher wage than men. 'I think it costs more to clothe a woman than a man'. An unemployed woman was particularly 'handicapped' by virtue of her gender: 'A young man can sleep under a tree or anything but a woman cannot. She has more need to save up'. To which Higgins haughtily replied: 'I am dealing with civilised life'.40 |
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Throughout his submissions, Spence reassured Higgins that he strongly supported the recognition of the male breadwinner provided by the Court's minimum wage, acknowledging the 'public duties' the male worker must fulfil.41 Yet Spence also seemed sensitive to changes underway in Australian society, in employment patterns and social attitudes that were reconstituting the public sphere. While Higgins repeated formulas from one decision to another to fix an ideal of normalised gender relations and nation building, Spence was more willing to accept that normality was relative. 'Change is life', Spence observed in a speech in 1915, a 'characteristic of progress'.42 The context of potential industrial discontent, Spence reminded Higgins, was 'the very wide discontent...of this age of ours'; 'very serious disturbances' might have arisen, had it not been for the promotion of 'peaceful conditions' by Higgins' Court. In was in this context that Spence invoked the restless and universal demand by women for equal pay, a demand spurred by the 'leaders of the women's movement' – that is, a new and organised voice that had emerged in liberal polity in an age of discontent.43 |
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Higgins was unmoved, and despite his discouragement of equal pay in his judgement, The Woman Voter welcomed the decision as a 'most signal victory', from a 'good friend to women'. Perhaps eager for any sign of state support for the principle of equal pay, The Woman Voter believed that Higgins 'saw clearly that, where a man and a woman did exactly the same work the pay should be equal'. The Woman Voter's assessment was a reflection of Higgins' reputation as a liberal progressive, a champion of easing the class and gender conflicts from which the young nation strove to escape. 'We know that his whole desire is for justice between employer and employee, between man and woman'. The Woman Voter did criticise as a 'grave error' Higgins' assertion 'that women wage earners are not responsible for the support of home and dependents', but persisted with a positive reading of Higgins' intentions, sure that 'when the position of women as industrial workers has been considered in all its bearings by the Court', Higgins 'will take a definite stand for a fundamental principle of justice'.44 Higgins had taken a stand on a principle of gendered interventionism, revealing the limits of his liberalism by providing marginal redress of male breadwinners and their dependents – as Ryan and Conlon argue, no breadwinner could keep a family on the basic wage – while leaving women wage earners unacknowledged as both economic providers and as citizens.45 By 1915 the Commonwealth Statistician estimated that there were 394,719 women breadwinners in Australia.46 |
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Furnishing the Mind? Higgins' Citizenship and the Archer Case | |
| In the years between the Fruitpickers case and the Archer hearings in April 1919, Australia experienced a world war whose aftershocks resounded, not least in a savage influenza pandemic, introduced to the nation by its returning troops and which disrupted the hearings opened in Melbourne barely six months after the war's end. The war stimulated the demand for female labour while worsening women's working conditions and increasing the cost of living. By 1916 one in three Victorian factory workers were women; and rising wartime wages could not match the increasing cost of living – food and grocery costs rose by 29 per cent in Melbourne between 1914 and 1917.47 Wartime decisions by state and federal industrial tribunals continued to exacerbate the wage gap between men and women; unions, fearful of the post-war impact on male employment, increasingly resisted the presence of women in the workforce, and sometimes championed equal pay as a device for shutting lower-paid women out of employment.48The Woman Voter lamented the rationales applied in a May 1918 case by Justice William Jethro Brown in the South Australian Industrial Court, who described his struggle to find a minimum wage rate for women that did not 'shackle' the Court's responsibility to provide for the 'progressive improvement' of men: The Woman Voter sardonically observed that women were apparently 'still the source of all trouble ... If she gets lower pay than men, she is a trouble ... if she gets exactly the same pay, she is a trouble'.49 |
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In the Archer case Higgins fulfilled the logic of his Fruitpickers judgement by setting the rate for women's wages at 54 per cent of the male basic wage, a minimum that remained in force until 1950, when it was increased to 75 per cent of the male basic wage.50 Yet it is an exaggeration to claim that in doing so, Higgins simply reflected community values and standards. As in the Fruitpickers case, Higgins was forced to negotiate and construct a rationale of discrimination in resistance to the appeals for wage and gender equality from the witnesses appearing before him. Just as Jethro Brown struggled with his responsibilities to provide for male and female workers, Higgins' struggle was reflected in the ambiguities of his judgement. Higgins' concern over tough working conditions in the clothing trades prompted the extraordinary reform of reducing women's working hours to 44 hours per week, previously enjoyed only by coal miners.51 There was also a number of employment classifications for which he granted equal pay and even asserted that 'the burden lies on the employers to show that sex should be a ground for differential rates for the same occupation'. Yet from the evidence tendered, Higgins was satisfied that when equal pay was provided in some sectors of the industry, it was more likely that men would be employed to women.52 |
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In the Commonwealth Arbitration Reports the judgements proceed from a list of disputed claims that the Court has resolved. In Archer, these included the prescription of 65 shillings per week as the male basic wage and 35 shillings as a lower basic wage for adult women, solving the problem of how the Court should provide for the women's 'reasonably necessary requirements ... in a civilised community'. Higgins' list also included propositions that were not distilled from the negotiated resolution of a disputed issue between the parties, but apparently stood in the list by virtue of a claim of inherent moral value:
There is much more danger incident to the forcing of men out of an industry to which they are suited than to the forcing out of women, even if they are equally suited.53
Higgins may have drawn some comfort from the reassurance provided by Alex Scovell, the employer's advocate, that clothing trades' firms would prefer male employees, if equal pay was granted across the industry; the employers also argued that any increase in the basic wage for women be restricted to 32 shillings per week. In the hearings Scovell proved enthusiastic in identifying allegedly extravagant expenditure by the women witnesses.54 |
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The transcript of the Archer case reveals that constructing pay inequity was not just a matter of applying precedent: faced with detailed evidence of daily experience, the rationales of discrimination had to be reconstructed. In the Archer hearings Higgins was directly confronted by the reality of the experience of women workers who testified to their expenditure in 1918 on behalf of the Federated Clothing Trades Unions' claims. An apparently technical examination of their economic requirements soon became a contest over the terms of citizenship. In his judgement Higgins singled out the evidence provided by witness 'C', who spent more of her wages than justified on 'dress and adornments', and for whom
it is significant that any little indulgence of vanity in dress is at the sacrifice of other things. For there is nothing in her schedule of expenditure for amusements, holidays, newspapers, lodge, toilet requisites, church. Moreover, C is supplied with considerable gifts of money by her sister in Sydney.
Family support that Higgins implied was squandered by 'C'.55 |
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Witness 'C', Florence Wootten, told the Court that she was paid 26s 6d per week of which she spent 18s 6d on board. 'I haven't got a room to myself. I sleep on the balcony'. She had moved from a room inside to make way for the family's brothers, who had returned from the war, although she said she did not mind sleeping outside on the balcony which she shared with others. Wootten felt that she got her board 'cheap'; she knew that other girls paid more. The family provided her with meals, including her lunch, and she had access to a fire in winter. Her married sister in Sydney helped her out: 'she knows I have no people and she supplies me with [a few shillings] every week' although she added a little later, 'not every week'. Wootten worked up to 50 hours a week, which, as for many clothing trades workers, was crammed into five days of work rather than spread over into the traditional Saturday half-day. She worked from 8am until 6pm, with half an hour for lunch, which was not enough time to eat it properly. Of her skilled work machining coats after the cloth was passed on from the cutters, she said that 'it is tiresome sitting in the one position all day ... the vibration [of the sewing machines] shakes you all day'. Wootten supported the union's claim for a 44-hour week with 3/4 an hour for lunch. Under cross-examination by Scovell she admitted she did not have a bankbook – and hence did not save. In 1918 she had spent £32 on dresses 'yes it is a big sum things are so dear now you have to pay'. She had also purchased 12 'cheap blouses' at 5 shillings each; these 'only last a year'. Wootten also went through 14 pairs of hose: 'there might be a few pairs to carry on with but they would have to be darned and sewed', that is, repaired in her own scarce free time. Asked by Scovell if she felt that it was 'extravagant' to spend £6 on hats in a single year, Wootten replied: 'no, not at all'. It was at this point that Higgins had heard enough, and launched from the bench into an interrogation of Wootten's failure to provide for 'church fees' and 'journals' from her wages, publicly identifying her failure as a self-governing subject.56 |
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Lake has argued that the entitlement to leisure and recreation endorsed by state intervention was an important civil right for men.57 Higgins expected women to provide for their recreation, and despite lower wages this expenditure should conform to his liberal self-improving expectations. That Higgins found Florence Wootten symbolic of a failure to appreciate the responsibilities of prudent citizenship was reinforced later in the hearings. A number of days after Wootten had given evidence Higgins returned to the example of her extravagance and repeated his disapproval of her 'nil' expenditure on 'newspapers, journal, church fees', providing an indication, Higgins sardonically observed, 'of the relative value between adorning the body and furnishing the mind'.58 It was apparently not acceptable that Wootten lived her life on her own terms. Wootten stimulated Higgins' frustration with how to manage women as citizens beyond the home, women active in asserting their workplace rights and exhibiting their adorned bodies in the public sphere, a form of behaviour beyond his sympathy and difficult to regulate. Wootten's example served as a justification for a wage restraint generally imposed on the women in the clothing trades: '[I]f the girls will have their finery at the sacrifice of other things more necessary, that is their business; but probably it is not fair to force their employers to pay for all that a girl may fancy'.59 |
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The other women workers who gave evidence confirmed the often hard and at times isolated nature of boarding house life, and the long hours of repetitive labour that were not concluded when they knocked-off work. Coat maker Mary Jane Levy did her landlady's sewing and assisted around the house, responsibilities that influenced Higgins' subsequent decision to reduce working hours:
That assisting in the house is a consideration with regard to the hours. Nearly all women assist in the house where the man can go and have his meal and take his pipe and go out.60
In some boarding houses the restrictions on any enjoyment of leisure time that were imposed in the apparently unceasing round of paid and unpaid labour were compounded by the behavioural controls imposed by the boarding house owners. Visitors were usually restricted or forbidden; and one owner, testifying about the rent she charged her lodgers, added that she turned the gas lighting off each night at 10.30 pm. Higgins asked, 'if they go beyond 10.30 reading and so on, what then? -- A -- They do not as a rule, they know it is my rule and they generally abide by it'. Higgins seemed troubled by this restriction on the women's self-improvement.61 |
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Many of the women took pride in their dress and refused to concede that their expenditure would 'encourage extravagance': 'there's no chance of that', Nellie Storr reassured Scovell. The women also believed that they were as skilled and worked as hard as their male counterparts. Coat maker Katherine Ryan told Higgins that 'Yes, I consider that I can make a coat equal to the average man, and I am as quick as the average man'. Asked by Higgins if 'the other girls' wanted equal pay, even at the risk that the employer might prefer to employ a male worker, Ryan replied: 'yes, they do'.62 Coat maker Louisa Miatke believed that 'it was only through custom that we women were paid less wages'. Higgins asked her, 'what is the root of this custom?' Miatke replied that 'I think they get more out of a woman than they do out of a man ... for less wages'. Gender discrimination was becoming harder to justify: as Miatke pointed out to Higgins, the number of female workers in the industry was increasing.63 |
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During the hearings Higgins expressed a frustration that the evidence was insufficiently thorough, and suggested to the advocates that some evidence from 'women inspectors' would be 'useful'.64 As a result Margaret Cuthbertson, an Inspector of Factories in Victoria, gave evidence. Cuthbertson, who in 1894 became the first woman to hold such a position, had a long experience of investigating and reforming employment conditions, including those of women workers in the clothing trades. Active in the Women's National League, Cuthbertson shared Higgins' improving liberalism, although she believed that factory work could have a beneficial effect on the character of young women, encouraging 'self-restraint and industriousness'.65 |
28
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Cuthbertson unsettled the ideal of citizenship that Higgins evidently hoped that her testimony would validate. From the bench Higgins invited Cuthbertson to imagine 'a normal, healthy girl' working for a living with no family support and compelled to find her own board and lodging. 'Supposing if you have an idea of a room that is healthy and properly furnished', Higgins proposed, what would the 'ordinary rate' be for such a room in Melbourne? To which Cuthbertson offered a deflating response: 'I think we would have to eliminate the room to herself straight away', because such a room would cost 25 shillings a week, a prohibitive rate for a woman employed in the clothing trades. Higgins persisted with his preferred vision of the healthy girl: 'Girls ought not to be forced in the company of other girls', a concern that Cuthbertson dismissed: 'very often girl friends share a room'.66 Cuthbertson was equally unhelpful on the issue of where the girls chose to live – some might like to walk to work, but there were other factors that might influence their choice. 'You cannot lay down a general rule', she sensibly concluded, but it was a general rule that Higgins sought to establish, a uniform notion of the healthy and restrained conduct of the normal girl in a civilised community.67 |
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Cuthbertson's evidence was no more helpful when it came to disapproving of the extravagant expenditure on dress of some of the witnesses, particularly that of Florence Wootten. Asked by Scovell if £34 per annum was an excessive budget for 'dress and adornments', Cuthbertson rebutted this leading question by simply observing: 'I do not know what the young lady got'. Higgins interceded, 'what would you say would be a fair sum ... having regard to civilising conditions'. Cuthbertson replied, 'it is very difficult to state a sum'. Tailoresses could make and repair their own clothes, which would impact on their expenditure in relation to other women. Under re-examination by union secretary Herbert Carter, Cuthbertson concurred that Florence Wootten's budget of £34 11s 6d on dress and adornments was not excessive, given that the cost of clothing had increased 30–40 per cent due to the impact of the war on the Australian economy. Higgins appears to have overlooked that impact in his judgement, while recalling Wootten's extravagance.68 |
30
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By 1919 clothing industry employees and the Clothing Trades Unions' members were predominantly women.69 The union officials were predominantly male, a reflection of the once male dominated trade of 'tailoring'. In his opening submissions Herbert Carter asked the court to clarify how far the Court would go 'with the claim of equal pay for the sexes'. Carter submitted that 'we have a basic wage applying to a section, which is exclusively women. That would be another matter then where they are in competition with men'.70 Carter pointed the way towards the discrimination embraced by Higgins, creating a wage disparity where women predominated, while awarding equal pay in other sectors to protect the employment of men. |
31
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Carter explained that:
formerly men were employed in making the whole of the garments years ago, and one of the first sections that women encroached upon in the industry, if I may use that term, was the trousers and vest.71
Utilising new machine technology, women had supplanted the skilled handcraft of journeymen tailors like Robert Armstrong, who testified that
the tailor has shown the girls how to make the garments and they have gradually worked him out with the result now that the tailor has no need to apply in those places.72
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In his judgement Higgins' arguments and language took up this theme of illegitimate infiltration. Women were 'gentle invaders' in the tailoring trade. Despite Robert Armstrong's evidence, Higgins recorded the belief 'there is a mysterious masculine gift which enables men to give shape and "character" to a body coat ... an art which women can never acquire'. If the male craft of tailoring was protected by the payment of equal wages, and women were to some extent driven from the industry that would be 'better for society'. Higgins repeated the same objection to the revolutionary reversal of gender roles that he had rejected in his exchanges with Spence in 1912:
the tendency of lower wages for women, in jobs for which men and women are in competition, is to make the woman the wage-earner and to leave the man to look after the house.
Higgins invoked the model of Penelope's 'virtuous sabotage', sewing and spinning, making garments, the 'recognised work of women ... as part of their domestic function, not for the earning of wages'.73 For all the years that Ulysses struggled to return from vanquished Troy, Penelope resisted her suitors by stoically weaving a robe and once finished, promised to break her fidelity to a husband apparently lost to the world and choose a new partner from amongst her insistent admirers. Each night Penelope would unpick that day's weaving and start again in the following morning, yearning for Ulysses return: a labour never fulfilled, created and undone in an endless and dutiful cycle.74 |
33
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Conclusion | |
| Although Higgins told Spence in 1912 that whether or not men and women could do the same class of work was 'a social question for members of Parliament', Higgins had been willing to undertake 'legislative work' since his appointment as president, as he conceded to his friend and fellow liberal, Prime Minister Alfred Deakin, soon after handing down the Harvester judgement.75 There is little doubt that in appointing Higgins, it was Deakin's intention that Higgins would fulfil the terms of a liberal 'people's peace', as Deakin described the ambitions of the Commonwealth's Conciliation and Arbitration legislation. The Parliament could not realise this 'new phase of civilisation', in its necessary and complete detail; only a Court presided over by a wilful and imaginative individual, with a precise conception of the terms of this new realm of law, could so legislate.76 In the Fruitpickers and Archer cases Higgins returned to his pioneering legislative task, helping to develop the general discrimination against women workers and equal pay into specific forms and precedents. |
34
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From 1902 feminists pursued diverse strategies to give meaningful expression to the citizenship of Australian women.77 Feminist progress was frustrated over the rights of equal work and pay, despite the fact that Olive Gray, Florence Wootten and Louisa Miatke had established their right to self-government and a place in the public sphere: the right to an equal wage, to provide as a breadwinner, to choose display over the price of a journal or church fees. Higgins could not make them citizens in his own image, but he could help shape their economic conditions and their marginalisation in the public sphere. Spence had reminded Higgins of the injustice of creating new limits and exclusions in the lives of those called before him, a warning Higgins overlooked to facilitate the normal gender discriminations and citizenship of his new province. |
35
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Mark Hearn teaches Australian history at Macquarie University. He is currently researching the Fin de Siècle imagination in Australia, 1890–1914.
<m.hearn@humn.mq.edu.au>
Endnotes
* This article has been peer reviewed for Labour History by two anonymous referees. The author wishes to thank them for their criticisms and suggestions.
1. Edna Ryan and Anne Conlon, Gentle Invaders: Australian Women at Work, 2nd ed., Penguin Books, Ringwood, Vic, 1989; Bradon Ellem, In Womens' Hands? A History of Clothing Trades Unionism in Australia, University of New South Wales Press, Kensington 1989; Raelene Frances, The Politics of Work, Gender and Labour in Victoria, 1880–1939, Cambridge University Press, Cambridge, 1993.
2. Ruth Ford, 'I am Not Satisfied: Identity, Unionism and Rural Women's Labour in 1912 Australia', History Australia, vol. 2, no.1, December 2004.
3. Transcript of Proceedings in 19 of 1911 Rural Workers Union and others and the Australian Dried Fruits Association, Commonwealth Arbitration Court, Vol. 1 B1958/2 National Archives of Australia (NAA), p. 70. Hereafter cited as Fruitpickers Case Transcript.
4. H.B. Higgins, A New Province for Law and Order, Dawsons of Pall Mall, London, 1968.
5. Craig Campbell, 'Liberalism in Australian History, 1880–1920' in Jill Roe (ed.), Social Policy in Australia, Cassell Australia, Sydney, 1976, p. 29.
6. Higgins, A New Province, pp. v, 38; Mark Hearn, 'Securing the Man: Narratives of Gender and Nation in the Verdicts of Henry Bournes Higgins', Australian Historical Studies, no. 127, April 2006.
7. Brian Galligan and Winsome Roberts, Australian Citizenship, Melbourne University Press, Carlton, 2004, p. 2.
8. Wayne Hudson and John Kane (eds), Rethinking Australian Citizenship, Cambridge University Press Melbourne, 2000, p. 2.
9. Nikolas Rose, Powers of Freedom, Cambridge University Press, Cambridge, 1999, pp. 20–23, 133–34; see also Michel Foucault, 'Governmentality', in Michel Foucault, Power, Essential Works Vol.3, Allen Lane, the Penguin Press, London, 2001.
10. Stuart Macintyre, A Colonial Liberalism, Oxford University Press, Melbourne, 1991, pp. 5, 12.
11. John Rickard, H.B. Higgins: The Rebel as Judge, George Allen & Unwin, Sydney 1984, p. 171.
12. Greg Patmore, Australian Labour History, Longman Cheshire, Melbourne, 1991, p. 113.
13. Transcript of Proceedings of the Federated Clothing Trades Union of Australia v J.A. Archer and others, B1958/1 66/1918, NAA, pp. 131, 263. Hereafter cited as Archer Case Transcript.
14. Patrick Joyce, The Rule of Freedom, Verso, London, 2003, pp. 4, 102.
15. Higgins, A New Province, p. v.
16. Marilyn Lake, 'Feminists Creating Citizens', in W. Hudson and G. Bolton (eds.), Creating Australia, Allen and Unwin, Sydney, 1997, p. 97.
17.Ibid., p. 102.
18. Melanie Nolan, 'Sex or Class? The Politics of the Earliest Equal Pay Campaign in Victoria', in R. Frances and B. Scates (eds.), Women, Work and the Labour Movement in Australia and Aotearoa/New Zealand (also published as Labour History, no. 61), Australian Society for the Study of Labour History, Sydney, 1991, p. 110.
19. Desley Deacon, Managing Gender, The State, the New Middle Class and Women Workers 1830–1930, Oxford University Press, Melbourne, 1989, pp. 187–188, 191–192.
20. Ryan and Conlon, Gentle Invaders, p. 87.
21. George Anderson, Fixation of Wages in Australia, MacMillan & Co, Sydney, 1929, pp. 397, 419.
22.A New Province of Law and Order was first published as an article in the Harvard Law Review in November 1915, supplemented by further articles published in the Review in January 1919 and December 1920, and was expanded by Higgins into a book length volume and published in 1922 by the Workers Educational Association of NSW.
23. Vol. 6 CAR [Commonwealth Arbitration Reports] pp. 65, 76.
24. 6 CAR p. 70.
25. Ryan and Conlon, Gentle Invaders, pp. 100–102.
26. Fruitpickers Case Transcript, pp. 42, 163.
27.Ibid., p. 226.
28.Ibid., pp. 42–3.
29. 6 CAR p. 71.
30.Ibid., 71–2.
31. Rose, Powers of Freedom, pp. 74–5.
32. Michel Foucault, Discipline and Punish, Penguin Books, London, 1991, p. 184.
33. 6 CAR p. 71.
34.Age, 12 June 1912.
35. Coral Lansbury and Bede Nairn, 'William Guthrie Spence', Australian Dictionary of Biography, Vol. 6, Melbourne University Press, Melbourne, 1976, p. 168.
36. Fruitpickers Case Transcript, pp. 33, 346.
37.Ibid., pp. 575, 582.
38.Ibid., pp. 594–5; Age, 12 June 1912.
39. Fruitpickers Case Transcript, p. 600.
40.Ibid., p. 599.
41.Ibid., pp. 580, 592.
42. W.G. Spence, 'Trade Union Administration and Industrial and Craft Unionism', in Meredith Atkinson (ed.), Trade Unionism in Australia, Workers Educational Association, Sydney ,1915, pp. 41–2.
43. Fruitpickers Case Transcript, pp. 578, 582.
44.The Woman Voter, 11 July 1912.
45. Ryan and Conlon, Gentle Invaders, p. 111.
46. A. Booth, The Payment of Women's Work, Pritchard Brothers, Adelaide, 1915, p. 6.
47. P. Grimshaw et al, Creating a Nation, 1788–1990, Penguin Books, Melbourne, 1996, pp. 209, 215–6.
48.Ibid., p. 209; Deacon, Managing Gender, pp. 197–99.
49.The Woman Voter, 2 May 1918.
50. Patmore, Australian Labour History, p. 170.
51. Hearn, 'Securing the Man', p. 18.
52. 13 CAR 648, 699.
53. 13 CAR 648.
54. Archer Case Transcript, p. 21.
55. 13 CAR 693.
56. Archer Case Transcript, pp. 125–131.
57. Lake, 'Feminists Creating Citizens', p. 101.
58. Archer Case Transcript, p. 263.
59. 13 CAR 695.
60. Archer Case Transcript, p. 155.
61.Ibid., pp. 114, 205.
62.Ibid., pp. 142, 155.
63.Ibid., pp. 161, 171–2.
64.Ibid., p. 172.
65. Joy Damousi, 'Margaret Cuthbertson, Factory Inspection and the Political Lives of Working Women, 1890–1914', in Mark Hearn and Greg Patmore (eds), Working the Nation, Working Life and Federation 1890–1914, Pluto Press, Annandale, NSW, 2001, p. 261.
66. Archer Case Transcript, pp. 258–9.
67.Ibid., p. 260.
68.Ibid., pp. 260–64.
69. Ellem, In Womens' Hands?, pp. 81–85.
70. Archer Case Transcript, p. 5.
71.Ibid., p. 21.
72.Ibid., p. 269.
73. 13 CAR 701–2.
74.The Illustrated Odyssey, Book Club Associates, London, 1981, pp. 38–39.
75. Higgins to Deakin, 22 November 1907, Deakin Papers, MS1540/15/3443, National Library of Australia.
76.Commonwealth Parliamentary Debates, 30 July 1903, p. 2864.
77. Lake, 'Feminists Creating Citizens'.
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