Rohan Price | 'In bramble of chicanery belated justice stands': Early Judicial Interpretations of the Factories and Shops Act 1896 (Vic) | Labour History, 96

'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.

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.

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.

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.

Academic literature on anti-sweating movements has by-and-large become a feminist domain and it is useful to refer to such writings as a source of context of this article. In their day, the Act of 1896 and the Trade Boards Act 1909 (UK) were proclaimed to protect lowly paid women and children. Thus, the unfulfilled promise of anti-sweating measures has justifiably been a focus of feminist critique. In the UK, Shiela Blackburn has written prolifically on anti-sweating, and in particular has assessed the efforts of British chainmakers to be the first to establish a minimum wage under the Act of 1909. In other articles, she has concluded that the Act of 1909 was a small and less than comprehensive Liberal concession which under-estimated the impact of sweating by defining it as predominantly a problem of women who did subcontracted work in their homes.² For her part, Jenny Lee contended that the Victorian wages board system was established to stabilise the division of labour in small manufactories in favour of men, to restore them to jobs they once took for granted and to stem the pace with which mechanisation was deskilling manual trades.³ In a similar vein, Rae Frances has argued that a coordination of sexist and racist ideologies was used purposefully by policy makers to keep the wages of women low.⁴ Kevin James surveyed the legacy of Scottish trade unionist Margaret Irwin and her concern that the dispersed and rural outworking of Irish women in the Ulster shirt trade had a deleterious effect on women attempting to secure better wages in England.⁵ This issue, construed broadly, is evident in a number of Australian feminist contributions. It is concerned with the effect of regulation on the distribution of wages in an industry, namely, who was recognised as belonging to an industry, who got paid what and why.

In the Australian context, M.B. Hammond argued that Victorian wages boards were only ever intended to cover the worst of the sweated trades and that the greatest employer resistance came when the wages board system was extended to trades where sweating was not evident.⁶ Charles Fahey has argued that the number and diversity of places in the Edwardian ecomomy where unskilled male labour was found propelled Victoria toward a wages board system.⁷ John Rickard found that there were demonstable links between the Trade Boards Act 1909 (UK) and earlier Victorian anti-sweating legislation, and that British reformers including Dilke, MacDonald and the Webbs travelled Australia to study factory and wage-fixing legislation.⁸ P.G. Macarthy, like Rickard and Fahey, was not one for gender analysis and viewed the Victorian wages board system as the model preferred by Melbourne capitalists to avert local or federal arbitration and saw the wages board as little more than a 'formalised collective bargaining unit'.⁹ The general line pursued here, in contrast to many of the above contributions, is that the interpretation of legislation needs to be more widely regarded by labour historians as causative of events and not merely instrumental. The anti-sweating law is not to be regarded as merely a messenger for Liberal reform policy interests. The promulgated law left room for the judiciary to endorse some claims and to delimit others on jurisdictional grounds and do so with apparent independence. Thus, judges were an effective force in sustaining and legitimising the prevailing laissez faire model. The question remains however: what evidence is there that both the Victorian bench and legislature relied on this essentially dualistic reasoning to hold back the impetus toward a broader and more inclusive wage-setting mechanism under arbitration which had started in the failed strikes of the 1890s?

The Limited Nature of the Act of 1896

Throughout the late nineteenth and early twentieth century, the political forces of Victorian labour were weak and this was recognised by trade unions in the wake of their defeat in the 1890s strikes.¹⁰ The governing Liberals drew much support from working-class constituencies and it was middle-class reformers, including Alfred Deakin and Alexander Peacock, rather than Laborite agitators who brought the Act of 1896 into existence.¹¹ It has been noted, in particular, that Peacock's introduction of the Act of 1896 'brought him widespread popularity as a humane politician'.¹² Several attempts by Labor members to enact private members' Bills seeking to establish compulsory arbitration had been repeatedly rejected by the Upper House which was hostile to such measures.¹³ This was of little surprise to a seasoned observer of the chamber; the Act of 1885 had commenced in the Lower House as a substantial reproduction of similar UK legislation but was amended significantly in the Upper House. The political figure most disillusioned was the member for Richmond, Mr. William Trenwith, who although a veteran proponent of arbitration, came eventually to agitate for the betterment of the wages board system.¹⁴ During Parliamentary debates over the Factories and Shops Act Amendment Bill 1896, Trenwith proposed that there be established a board, 'which would fix the minimum wage' and be 'a perpetual board of arbitration which would do away with harassing, vexatious and painful strikes'.¹⁵ His rhetoric did not sway the House, and so he failed to carry his measure.

Trenwith's failure was to have a more general aspect. The waning fortunes of pro-labour representatives in the Victorian Parliament at the turn of the century also contributed to the expansion of wages boards as the next best option. Arguably, the Parliament's rationale centred on the improvement of a piecemeal system rather than implementation of a fully protective one. The strength of Victorian trade unions during our study period should also be noted. In the very times when the protective features of arbitration were becoming standard elements in the industrial law of other states in the federation, the union movement of Victoria was too narrowly conceived, weak and divided to pursue the enactment of legislation which set up the rudiments of an industrial arbitration system.¹⁶

If we are to contend that Victorian wages board system was limited in scope and conception then it is fair to ask what benchmarks were extant in 1896? The wages board system while more protective than unregulated collective bargaining was nowhere near as protective as the truly progressive systems that were developing contemporaneously in other jurisdictions. New Zealand's arbitration system led the way in 1894.¹⁷ At the federal level in Australia, a progressive arbitration system came fully into existence in 1907.¹⁸ In Victoria, Trenwith had agitated throughout the 1890s and in 1896 for the inclusion of an arbitration clause in Act of 1896. A system based on arbitration and a living wage was an obvious policy option. Victorian legislators and judges opted against such a system. Writing in the early 1970s, John Portus explained that the object of the Victorian wages board system, 'was not the settlement of disputes by arbitration instead of strikes but the prevention of the payment of unfair wages'.¹⁹ It was based on the idea that it was adequate enough to offer some protection to a worker on the issue of low pay rather than give him or her, through trade union recognition and a dedicated legal forum, a strong legal standing which an employer was bound to respect. As we will later see, the limited scope of protection offered by the 1896 Act was obligingly confirmed by the Victorian Supreme Court in the cases which came before it.

As mentioned above, the depressed economic conditions could be given as a reason not to expand the scope of wages boards. Therefore, as preliminary matters it is useful to consider two contextual issues: first, the level of industrialisation and the economic fortunes of Victoria in the 1890s; second, the history of minimum wage legislation prior to the 'landmark' Act of 1896.

The Economic and Legislative Contexts of the 1896 Act

It is helpful to set the stage by taking some economic soundings of Victoria in the 1890s. Both the scope and timing of the Act of 1896 were determined by a number of historical factors and among them were the state of Victorian industry until 1890 and, of course, the pronounced economic depression of 1891–95. Also material were factors such as the growth and influence of the anti-sweating and broader reformist agitation throughout the early 1890s.

The economic outlook of the late 1880s was positive because of the land boom that had been made possible by the emergence of friendly societies and lax parliamentary controls on their activities. Speculation on land and borrowing money from London banks was widespread. As Michael Cannon pointed out, in his short study of pre-federation social unrest in Victoria,²⁰ members of the Victorian middle class borrowed more than their assets were worth in order to speculate on land, and so during the collapse were hit hard by insolvency. In December 1891, four banks and a building society collapsed and, in 1892, 133 limited companies went into liquidation.²¹ In 1893, the Federal Bank of Australia failed and the Colonial Bank of Australia, the Commercial Bank of Australia in Melbourne, the Bank of Victoria and the City of Melbourne Bank all suspended payment.²² Bankers became nervous about overdrafts and questioned the ability of borrowers to repay debt. There followed five years of land devaluation, unemployment, and destitution that destroyed the fortunes of thousands of people.²³ With the depression in full swing by 1892, British banking officials were predictably of the view that the colony had lived out of the 'mother country's' pockets and that the time to account had arrived.²⁴ An article in The Age summed up the view of the British: 'the panics and failures of Sydney and Melbourne are due to the wild speculation on land'.²⁵

Robin (Bob) Gollan's analysis of the relative degree of industrialisation in the colonies is enlightening and shows that Victoria was industrially advanced in the early 1890s and capable of supporting a more centralised form of wage fixation. He found that the pace of Victorian industrialisation was decreasing relative to New South Wales by 1891, that the average number of employees in Victorian workshops in 1881 was 16, compared to 11 on average in the workshops of New South Wales; and that by 1891, there was an average of 19 workers in Victorian workshops and 19 in New South Wales.²⁶

Gollan further found that in Australia by 1890 industry was more important than pastoralism and mining combined.²⁷ In terms of the level of industry and the number of workers employed, the Victorian manufacturing sector was well established by the last quarter of the nineteenth century. For instance, in the early 1880s, the Melbourne Woollen Mill Company works at Yarraville and the Phoenix Company's iron foundry at Ballarat were high profile marvels of the industrial age. In 1878, Victorian manufacturing concerns employed 32,013 workers; by 1890, and with economic depression near, 58,036 workers were thus employed.²⁸ In 1881, Victoria had 2,488 factories; by 1891, 3,141 existed.²⁹ In 1881, 16.47 per cent of the Victorian population was employed in commerce and manufacturing; by 1891, 23.49 per cent of the population were employed in this way. This position can be compared to New South Wales, where the figure stayed at around 20 per cent over the period.³⁰

Although factory production had become widespread in Victoria, the political efforts of radical liberals William Trenwith, Samuel Mauger and Alexander Gosman in support of the Anti-Sweating League were important nevertheless. Grant and Serle noted that '[t]aking the three worst sweated trades in the metropolitan area, viz., the boot, clothing and dressmaking trades ... there were 5,893 more persons engaged outside the factories than inside'.³¹ The boot-making trade received the particular notice of the Anti-Sweating League in Henry Hyde Champion's self-titled newspaper which observed in 1895 that

in the shops at which the public deal buy indiscriminately from good and bad employers alike, it is not possible to give the purchaser assurance that he is safe in dealing at any shop; even the Union factories that have retail shops that offer therein many lines of boots made by sweated labour.³²

In essence, in the early 1890s Victoria had a high proportion of employees engaged in manufacturing and while the factory system was widespread, so too was outworking. The ability of trade unions to keep abuses in check was very limited. It is also significant that agitation against 'sweating' gained momentum in Victoria when there was the first hint of economic recovery. By the mid-1890s, progress on the low-pay issue had become more economically affordable than it had been in the early years of the decade. In 1896, the National Anti-Sweating League held a well attended meeting in the Melbourne Town Hall which discovered that even some groups of skilled workers, such as butchers, were close to penury.³³ By 1896, economic conditions had improved enough to highlight the particularly disadvantaged position of outworkers. Concerned citizens believed that a greater degree of community control over wages was possible and desirable. The meeting was a good example of this new mood. However, it should be noted that the Anti-Sweating League's concern to limit the amount of work done by the sweated trades via the expansion of the factory system was just as important to it as limiting the hours of work of Chinese furniture manufacturers and the securing of rest days for public servants.³⁴

The Statutory Position Before the Act of 1896

The second crucial preliminary matter to consider is how the anaemic legislative position on minimum wages prior to the Act of 1896 allowed its portrayal as 'break through' social justice legislation, when in effect it was a limited measure designed to not undermine economic recovery. It is a matter of record that in 1896, the Factories and Shops Act was amended to include provisions relating to Special Boards which could make legally enforceable determinations in respect of employees' wages in lowly paid industries.³⁵ It was subsequently refined by amending Acts in 1898 and 1900.³⁶ The Act of 1896 merely established Special Boards to fix prices for certain work,³⁷ provided that half of each Board be constituted by occupiers of factories and half by manufacturing workers,³⁸ and ensured that the determination of a Board be affixed in a conspicuous place near the entrance of a factory.³⁹ It also established – after a good deal of Parliamentary debate⁴⁰– a somewhat derisory minimum wage of two shillings and six pence for factory workers.⁴¹

The wages board system contained in the Act of 1896 was grafted on to the Act of 1885 which was, in essence, occupational health and safety legislation based on the British model. After a Royal Commision in 1884 and a short parliamentary debate led by Deakin the same year,⁴² the Factories and Shops Act 1885 (Vic) set up an Inspectorate⁴³ with a limited range of powers over matters such as sanitary conditions,⁴⁴ overcrowding in factories,⁴⁵ ventilation,⁴⁶ the age of persons employed in factories,⁴⁷ and safety precautions to be taken with machinery.⁴⁸ Various fines could be imposed on an employer by an Inspector if the employer's premises was found to be in contravention of the Act.⁴⁹ Interestingly, the Governor in Council could prescribe a 'mode of arbitration' when the occupier of a factory was required by the Inspector to fence machinery.⁵⁰ Another novel section provided that if a worker was injured as a result of an unfenced machine, he or she could benefit from the conversion of the fine imposed into penal compensation of up to £100.⁵¹ There was also a new restriction on working hours: workers under the age of 16 were not to work more than 48 hours a week.⁵² Although the 1885 Act had no provisions relating to wages, it was visionary for protective legislation in its time and place.

The Acts of 1890 and 1891

In the early 1890s, the doctrine of 'freedom of contract' ruled supreme.⁵³ Unemployment, reduced wages, and insolvency severely unsettled the populace of pre-federation Victoria.⁵⁴ The strikes in the maritime, shearing and coal industries were in support of the right to bargain collectively and had the effect of exacerbating the economic crisis. Thus, the claims of workers to a right to collectively bargain and to an impartial arbitration system were put forward in a time when they were least likely to succeed. High levels of unemployment made the offering of low wages possible and allowed employers to specify that non-union labour would be preferred.⁵⁵

Victorian minimum wage legislation was conceived to clean up low pay abuses in very limited sectors of the economy.⁵⁶ The 1896 Act offered to workers on the margins of employment wages which gave a greater fairness to piece-rate practices, as well as a board system to assess their claims. The conception of anti-sweating legislation was, by its nature, far from an economic or social revolution. Out-workers (typically the worst off of the sweated workers) did not work in a factory and were paid on a piece-rate (or per item) basis. This put them, as a category of workers, beyond the law's effective regulatory grasp. Even though by 1890 manufacturing industries were well advanced in Victoria, there remained legions of hidden workers who did not work in a factory and worked cost-effectively outside of its environs.⁵⁷

The 1885 Act was followed some five years later by the Employers and Employés Act 1890 (Vic)⁵⁸ (hereafter the Act of 1890). The conservative government of James Munro (including Deakin as the Minister of Labour) was defeated in October 1890 on the issue of a proposed railway construction and the use of a militia to protect non-union labour in the maritime strike. In this context, the Act of 1890 was a response of sorts to the maritime dispute which ended in November 1890. However, its significance and that of its successor Act in 1891 stand as more than merely reactive pieces of legislation relevant only to their day. The Act of 1890 was amended in 1891.⁵⁹ The Councils of Conciliation Act 1891 (Vic) (hereafter the 1891 Act) was thus a forerunner to the Act of 1896. The 1891 Act proved to be a dead letter. However, by ignoring it historians have underestimated an early conceptual framework upon which the 1896 system of Victorian wages boards⁶⁰ was undoubtedly modelled.⁶¹ Thus, given what had proceeded before the expectations of anti-sweating campaigners would be met by an enforceable, board-based system and this fell well short of an artbitration model with a living wage concept.

The 1891 Act set up Councils that attempted to conciliate on an industrial dispute, and also allowed for the appointment of an arbitrator, should the parties fail to resolve their dispute. In Victoria, during the strikes of the 1890s, industrial relations were marked by unprecedented bitterness over the issue of freedom of contract.⁶² Furthermore, during the economically depressed years preceding Australia's federation, it is arguable that there was a degree of class consciousness and cleavage which has not been seen since. Although sensed by parliamentary Liberals like Deakin, Peacock and, later, by the Laborite Trenwith, this was not voiced by such figures as a responsive radicalism, but as a call for balance in matters of factory law.

Even accounting for the violence and disruption of the 1890s, there were notable examples of employers and employees who were able to settle their disputes amicably through consensual agreements. In the 1890s, industrial parties were capable of arranging terms for dispute resolution that had no basis in public law. These terms often included an ad hoc board appointed specifically to handle a dispute. In 1891, the Amalgamated Shearers Union and the Pastoralists Union both agreed on a settlement that contained a dispute grievance clause and this enabled parties to set up a board under a neutral umpire whose decision was binding.⁶³ Trade union historian J.T. Sutcliffe criticised this arrangement because it did not include any reference to the employees' trade union or to the Trades Hall Council in the case of a dispute.⁶⁴ However, the agreement shows that a dispute-specific board of reference, for Australian purposes, was the earliest administrative response and it was based on a privately honoured agreement. Thus, public enactment setting up 'Special Boards' in 1891 followed the cue of private pragmatism in the pastoral industry.

Although the 1891 Act was experimental, to a significant extent it informed subsequent Victorian wages board legislation. The Act left it up to employers and workmen in a particular trade to form a governing Council for their trade.⁶⁵ The Council had to be comprised of equal numbers of employers and workmen and a chairman. The Council had to have no less than two employers and two workmen and not more than ten employers and ten workmen.⁶⁶ If employers or workmen omitted or failed to take steps for the formation or election of the Council, the Governor in Council could appoint one for a particular trade.⁶⁷ This was the extent of state intervention. The strikes of the early 1890s arose out of the failure of employers to recognise unions and to collectively bargain with them. The state's power to compulsorily form a Council was a direct response to the employer's reluctance to bargain with employees or their representatives. The Chairman of a Council, unlike the chairman of a British trade board, had no vote in the Council's determinations. The Chairman's functions were to preside at meetings and take part in deliberations.⁶⁸

The 1891 Act tried to provide conciliatory measures for disputing parties. Failing successful resolution of a disagreement between parties, the matter was referred to a Council proper. Before a quorum of at least half the members, both sides could give evidence under oath. The Council then made a written suggestion or recommendation that it deemed an advisable solution to the dispute.⁶⁹ If the Council was deadlocked, a vote of three fourths of the members would ensure that the dispute was referred to an arbitrator. This person was to be, 'some indifferent person to be appointed by the council and approved by the said parties as an arbitrator'.⁷⁰ The arbitrator could make inquiries and obtain evidence and then deliver his award to the Clerk of the Council. Given the tumultuous mood of workers throughout 1891, it was important for Victorian legislators to appear decisive. However, an award under the 1891 Act could not be enforced in the courts. In this light, a peculiar feature of the Act was the inability of Councils to make by-laws to carry into effect the object of the Act. The ability to make by-laws gave the Special Boards (or 'wages boards' as they came to be known) set up by later enactments a large degree of power over wage fixation.

The Conceptual Importance of the 1891 Act

By overlooking these earlier private arrangements and the 1891 Act, there has been a tendency amongst historians to assume that the genesis of legislation for wages boards was more or less purely in the public agitation about sweating in 1895–96. Undoubtedly the efforts of Champion and Maugher and others galvanised legislators to take action, but the legislative base from which they worked was a weak and unenforceable conciliatory system based on the honour of participants, and this is the precedent the drafters of the 1896 Act took their inspiration from.

The earliest enacted wages board-like machinery was set up under the Councils of Conciliation Act 1891 (Vic). Later, the system under the 1896 Act and that under the Councils of Conciliation Act 1891 (Vic) were combined and renamed in 1915 as the Employers and Employés Act. The first part of the Employers and Employés Act 1915 (the 1915 Act), which retained the Councils of Conciliation, is a perfect replica of the 1891 Act. Due to the paucity of documentary material concerning the operation of the Councils of Conciliation, it is safe to infer that the 1891 Act was little used. Nevertheless, the Act is important as a referent to both the economic crisis in colonial capitalism and the perceived need to articulate a method of achieving voluntarist wage fixation in the British tradition. The 1891 Act stressed the unenforceability of the Councils' awards. In this regard, the legislation can be said to have had even less legal substance than private peace agreements which came into vogue during the period, or the Equitable Councils of Conciliation Act 1867 (UK) on which it was loosely modelled. In contrast, the Act of 1896 provided for the legal enforcement of a wages board's determination. The system established by the 1891 Act, although rarely utilised, was carried over by the 1915 Act presumably for the sake of completeness. The honour system it contained was undoubtedly weak. Notably it gave neither a worker nor an Inspector the right to bring underpayment of wages to the attention of the courts. As we will soon note, underpayment is a threshold issue for the level of protection offered by a wages board system.

The Judicial Response to the Act of 1896

It will be recalled that in the introduction to this article the argument was raised that wages boards and the promotion of minimum wages on an industrial basis were conceived as supplementary to the occupational health and safety ideals of the Act of 1885. This line of argument has been developed above. We have also found that wage regulation in Victoria came off a 'low base' which was characterised by conciliation, poor enforcement and honour-based systems. In this light, the Act of 1896 is apt to give a false appearance of progressiveness. We now turn to the judicial interpretation of wages boards and, in particular, the limited reading of the the Act of 1896 even though in itself it was a very limited measure.

Wages Board Cases in the Supreme Court

It was not easy being an industrial law judge in the nineteenth century. The Factories and Shops Act was re-enacted or amended every few years. Though there was seldom any repeals of its sections, several new sections were added to the basic framework of the 1890 Act. The Act was in fact an amalgam of Acts that came to be read cumulatively. It is not unusual for a reported case to contain three distinct actions, for instance, one from the 1890 Act, one from the 1896 Act, and another from the 1897 Act.⁷¹ What resulted was an awkward and confused system of industrial regulation which judges themselves had very real difficulties interpreting.

The exact process by which wages boards made their determinations is unknown because records were either not kept or were destroyed.⁷² Accordingly, studies of wages boards have tended to be concerned with union politics in relation to the boards or the broader social movements against sweating. Although the appeal cases in the era from 1896 to 1906 are few, there are sufficient cases in the Supreme Court concerning wages boards to gain a new insight into them. They usually made their way to the Court via the legal standing given to the industrial inspectorate over wages under the Act of 1896. Under the system that grew out of the Act of 1896, an action against an employer's alleged breach of a determination was brought to a Magisterial Court and then, if need be, to the Supreme Court by the Inspector of Factories and Shops.

Two significant categories of case were frequently before the courts. The first category of cases concerned the legality and the jurisdiction of a wages board's determination over a particular group of workers. The second category of cases concerned payment of workers which was below the rate specified by a wages board. The two categories underline the regulative shortcomings of the wages board system. Also salient is the fact that the Court, when dealing with the 1896 Act, had to deal with novel legislation on what an employer had to pay employees.

The provisions for the Special Boards were inserted into existing factory legislation by the Factories and Shops Act Amendment Act 1896 (Vic). This method of enactment carried with it the weakness of unenforceability of wage rates at the suit of unions. Naturally, difficulties arose when an out-worker attempted to enforce a wage rate or price for goods manufactured. There was little legislative – or actual – distinction between the Inspectorate's role in safety regulation under the Act and its enforcement of wages board wage rates. It was not until much later that the priority, resources and enforcement of wage regulation were improved by the provision of a specialist forum for wage claims.⁷³

The 1896 Act held the promise of reshaping managerial prerogatives in a new respect, namely the payment of wages. Although the Act was a classic example of Liberal reformism, the Victorian judiciary often displayed an extreme conservatism in their approach to the legislation, rather than establish clear formative principles for its interpretation. Until 1903, there were very few cases dealing with the legality of a wages board determination, or whether or not the determination should include a particular category of worker. Research has revealed that from 1903 to 1915, 17 appeals from wage board decisions were heard by the Supreme Court of Victoria. In 14 instances, the Court made decisions about wage board determinations which had the effect of decreasing pay or increasing hours. The position of the Supreme Court is characterised here by reference to two indicative decisions: first, Fromison v Smith (1897)⁷⁴ and, second, In re The Determination of the Artificial Manure Board (1905).⁷⁵ Certainly a court of law can only determine the issues raised before it and no expectation of progressive interpretation, especially in the nineteenth century, should intrude on dispassionate analysis of the cases. That said, in both of these decisions the Court openly speculated about the economic effect of a decision. This suggested that there was a reason for its conservatism other than the desire to follow faithfully what parliament had set down.

Case 1: Fromison v Smith: No Employee Right to a Remedy for Underpayment

The very first case to be brought under the Act of 1896 concerned the issue of a difference between contract and a wages board wage. There was no provision in the Act regarding a worker's right to recover the difference between a contract rate and the rate set out in a determination. Fromison v Smith⁷⁶ concerned a journeyman baker who sued to recover the difference between the Breadmaking Determination and the lower contract price that he had received. The case was adjudicated by Chief Justice John Madden who was to play a significant role in the Supreme Court's dealings with wages boards. His reputation was as a free marketeer. He ascended to the role of Chief Justice in 1893 ahead of a number of more eminent judges and he attracted the criticism of The Argus: 'his application of legal rules to the issues found was not always as clear and precise as the acuteness of his mind would have led one to expect'.⁷⁷ In language less accute than that of his well-regarded contemporary, Justice Joseph Hood, in 1897 the Chief Justice pointed out in Fromison that

what I really have to decide is whether the Factories and Shops Act 1896 manifests by general intendment the intention to give the employé sought to be protected a right of action for the wages fixed by the Act, or whether it is only an Act which forces by penalty an employer to obey its provisions and imposes a penalty for disobedience.⁷⁸

His Honour then made a point about competition which looks rather like a red herring:

[t]he Legislature seems, therefore, by providing a penalty, desirous of compelling a master either to pay the minimum rate of wage or to abandon the business and thus lessen competition, thus allowing persons who can pay a reasonable rate of wage to remain in the particular business affected by getting rid of those whose own necessitous circumstances would force them to pay less to their employés.⁷⁹

A modest fine might not put a small to medium sized employer out of business, but ordering back payment of wages did run that risk. This was an attempt to make the fine seem like a sufficient sanction and to show the Court as active and concerned on the issue of underpayment when in reality its decision was to not award a general right of recovery to an underpaid employee. The employer was to be fined and that was that. Chief Justice Madden preferred to see the Act as one which, 'contents itself with the imposition of a penalty upon the master if he disobeys'.⁸⁰ The Act was not to be seen as an attempt to rein in the abuses carried on by employers:

[s]uppose a master had contracted for one or two years at a certain rate of wage with a number of employés, then, according to the complainant's contention, he would have to find money for them at the minimum rate of wage; he might thus be ruined.⁸¹

By using the reasoning that the intention of parliament could not be to ruin employers, the Court ruled against the baker's claim and commenced its interpretation of the Act of 1896 with an abstentionist policy. This lends support to the earlier contention of this article that the economic interests of employers were at the core of interpretation of the 1896 Act and that the language of employer convenience was dual with that concerning legislative originalism to deny an employee a remedy.

Many of the subsequent underpayment cases in the Supreme Court are similar in one crucial respect: workers usually lost and did so through formalistic interpretations of the law. For example, Hall v Bartlett⁸² concerned a woman named Annie Meagan, who worked in a clothing factory on a piece-rate. She was taken off a weekly wage when her employer, Bartlett, decided that she was not working fast enough to justify it. He paid her a piece-rate that was below that specified by the Clothing Manufacturing Board as the 'log price' for piece-work. Notably it was a case which was bought forward by Inspector Hall, on the behalf of Meagan. The Chief Justice continued with his restrictive approach, as he found that the employer would have to pay the minimum rate in the future, though would only be penalised if an intention to avoid the minimum rate could be found. In his view, the employer was

entitled to defend himself against a claim by any means he honestly believes to be a defence. If he fails, he has to pay the rate claimed, but so long as he has in his mind an honest belief in the existence of the contract, which he sets up, then if he has paid less, not in pursuance of a contract which the Board thinks fixes an improper price, but has paid less because he thinks he is lawfully entitled so to do, he is not liable to be convicted.⁸³

Thus, a defence was set up so that an employer would not be liable for the past difference between a contract and wages board rate if he or she acted in the honest belief that the contract rate was applicable.

In 1905, the Court ventured into the issues raised by out-working and underpayment, which was a rather late date considering that the 1896 Act established the registration of outworkers. Martin v Beath, Schiess & Co⁸⁴ concerned an action brought by the Inspector against a company which was paying piece-rates to women who were not working in factories. These rates were below those specified for clothes making factory workers. The Full Court had to determine whether the Parliament

was minded ... to extend the legislative control over manufacturing processes conducted outside factories, so that those who work independently of factories altogether might still be assured the same minimum wages already provided for those who work in or for factories.⁸⁵

The Madden Court observed that 'it is better in all the circumstances to assume that this was the intention of the Legislature than to decide in the other and narrower way'.⁸⁶ Considering the public outcry about sweating only nine years earlier, the Court could hardly have decided any other way. However, that it took Victoria's Court system nearly a decade to establish a basic principle underlying the coverage of the Factories and Shops Act shows the dependence of a court on a case being brought before it before clarification is manifest. The uncertainty around coverage issues such as that dealt with in Martin v Beath, Schiess & Co also shows the low priority the Legislature put on declaratory reforms affecting out-workers.

Ruling that out-workers were to be covered by the factory piece-rate was a major departure from the highly literal approach of the Madden Court's earlier judgments. The Court interpreted the Act and the determination of the Special Board as extending outside the factories into the particularly exploitative world of out-working. The facts of Martin v Beath, Schiess & Co show that Mrs Rogers, a middlewoman, was to receive one shilling per dozen aprons made, each outworker would receive nine pence per dozen aprons passed to Mrs Rogers.⁸⁷ The Court found that

[a] person would only need to give out material to be manufactured into articles without having a factory in order to get rid of the whole of the legislation, and the evil which the Legislature has taken the time and trouble to prevent would operate just as if there were no legislation. Therefore, with not great satisfaction to ourselves, or certainty in the correctness of our judgment, we think that this is the best interpretation we can give to these Acts.⁸⁸

Ruth Campbell, John Madden's biographer, made note that in his judgments 'his concern for women was frequently apparent'.⁸⁹ As with previous cases, the losses incurred by workers who had been underpaid were not to be given to workers, but a fine was to be imposed on those involved in the practice of underpaying. By 1923 the Victorian Supreme Court was prepared to recognise that a recovery of wages action under s. 44(2) of the Conciliation and Arbitration Act 1904 (Cth) could include a 'period of valid retrospective operation'⁹⁰ though, as with recognition of the federal basic wage in the same period, the timing was somewhat belated.

Case 2: The Artificial Manure Board: The Living Wage Issue

In re The Determination of the Artificial Manure Board was comparatively long for an industrial law judgment of the time and it continued the policy of abstention. Perhaps it is the most important review decision in the history of Victorian wages boards. The case concerned the successful attempt of an employer to set aside a determination of a Special Board which increased significantly the minimum wage payable. The presiding judge was Joseph Hood, the first barrister born and educated in Melbourne to reach the bench and a judge with a reputation for conspicuous fairness and analytical reasoning in his judgments.⁹¹ When the case reached the Supreme Court, Justice Hood provided no remarkable guidance as to the meaning of 'a living wage'. He felt the concept to be 'incapable of being ascertained'.⁹² A living wage was thought to be a nebulous idea which

would have to be fixed by some arbitrary method in order to regulate sobriety, industry and thrift, and an investigation of the most intimate kind would be required into the domestic habits, manners and morals.⁹³

However, he made an observation on the impact of a living wage on firms of differing size within one industry:

[i]t was urged for the appellants [the employers] that I am bound to consider the effect of the determination upon smaller firms, as this increase of wages may crush out the smaller men and lead to a monopoly by the large capitalists. On the other hand, to reduce wages in order to suit the smaller firms would be to make the remuneration of the men throughout the whole trade depend on the financial position of the small capitalists, while the larger firms might be making great profits at the expense of the underpaid employés.⁹⁴

This small excerpt from In re The Determination of the Artificial Manure Board displays the tensions of the emerging system very clearly. A generous living wage would lead to monopolism as only the larger firms could afford it; a miserly living wage might keep the small workshops in business but ultimately increase the competitive advantage of the large firms. Thus, it was better to keep minimum wages as the province of a handful of boards in the worst trades than for the Court to enter economic policy due to any philosophical concern about underpayment. The pro-employer effect of the decision also goes hand in glove with Fromison v Smith; it will be recalled that it said that no general right to a backpay remedy was available to an employee denied a wages board wage.

In 1907 there were 49 Victorian wages boards in existence, and by 1910 that had grown to over 90.⁹⁵ As the system expanded, the Supreme Court was called on more frequently to settle disputes. However, the role of the court prior to 1907 has largely gone unrecognised and analysis of its decisions shows it to be an extremely effective force in, firstly, rejecting calls for a living wage and, secondly, seeing underpayment as a question of penalty for an employer not a remedy for an employee.

Public accountability in regards to wage payment is a significant issue in decentralised systems, such as a wages board system. Effective enforcement of wage rates on the shopfloor, by Inspectors, and at the judicial level, by judges, is essential to the credibility of a wages system. Rankin noted that throughout the early twentieth century evasion of wages board determinations was widespread in the sewing trade.⁹⁶ In showing his concern over the issue of evasions of the Act, Mr H.B. Higgins (later of Harvester case fame), during the debates of the Victorian Parliament about the Factories and Shops Amendment Bill 1896, expressed himself in poetry: 'The little rift within the lute – That by-and-by will make the music mute'.⁹⁷ He clearly wanted to ensure that the 1896 Act had significant regulatory power over terms and conditions. If significant and enforceable rights were not given to workers, then the Act would be rendered nugatory. However, if one supposed that the Supreme Court recognised this in the period between 1896 and 1903, and made an example of underpaying employers, one would be wrong, as we noted in the foregoing analysis.

Conclusion

The Factories and Shops Act 1896 (Vic) was in part a belated response to the strikes and economic depression earlier in the decade. Above all, the problems of lowly paid factory workers and out-workers (clothing trades, furniture makers etc) were to be the focus of the 1896 Act.⁹⁸ A Special Board was to determine the lowest price or rate that could be paid to any person working in one of the prescribed trades. The minimum wage under the 1896 Act was not a variable basic wage that accounted for the cost of living, and the affixing of the determination in relevant factories was not a substitute for examination of Special Board determinations in a specialist court of arbitration. The Victorian system did not accept the federal basic wage concept until 1921.⁹⁹ The Act of 1896 circumvented the full implications of an industrial arbitration system and should be seen as such. Indeed a comprehensive approach to wages was allowed to wait indefinitely by the judges, who had a clear conception of their role and the view that progressive economic policy making was not part of it. Both In re Artificial Manure Board and Fromison v Smith show the Supreme Court to be keenly aware of the economic implications of judicial adventurism and eschewing any expectation that it enter the field of economic affairs to the advantage of employees.

The system of 1896 attempted to counter the worst excesses of the prevailing economic system, rather than to set a floor wage beneath which no worker's wages could fall. The system did not – because it could not – raise wage levels across all occupations. The limited aim of parliament was clear and it was obligingly carried into effect on a case-by-case basis by a judiciary whose rhetoric was legal and framed speciously in terms of jurisdiction but whose motives were ultimately economic (indeed it could not help but advert to economic implications, as we saw). Bernard O'Dowd, an Australian radical poet of the 1890s, wrote of 'The city' (of Melbourne):

Here, Office fawns fidelity
When stroked by gilded hands;
In bramble of chicanery
Belated Justice stands.¹⁰⁰

O'Dowd says here that when decision-makers dance to the tune of those with economic power they do so to the detriment of common people. In the case of the Victorian Supreme Court in the 1890s we are, however, afforded an example of decision-makers who, in choosing not to dance, maintained a veneer of impartiality but just as surely gave effect to the interests of capital. We can be sure that Mr Fromison, the out-of-pocket journeyman baker, would not care one bit for a distinction between a lack of jurisdiction over and lack of watchfulness over the interests of common people.

Rohan Price is best known for his texts on employment and industrial law. He majored in history in his BA at the University of Tasmania; he also took an LLB and a Master of Laws from there. In Hong Kong he teaches courses on the law of trusts, the labour law of East Asia and mediation.
<erbprice@cityu.edu.hk>

Endnotes

^*� The author would like to thank his two anonymous referees for their helpful comments.

^1.�Fromison v Smith (1897), 23 Victorian Law Reports (hereafter VLR), p. 170.

^2.� Sheila Blackburn, 'Princesses and sweated-wage slaves go well together: images of British sweated workers 1843–1914', International Labor and Working-Class History, vol. 61, 20 September 2002, pp. 24–44; 'No necessary connection with homework': gender and sweated labour, 1840–1909, Social History, vol. 22, no. 3, 1997, pp. 269–85.

^3.� Jenny Lee, 'A redivision of labour: Victoria's wages boards in action, 1896–1903', Historical Studies: Papers Read Before the Irish Conference of Historians, vol. 22, no. 88, 1987, pp. 352–72.

^4.� Raelene Frances, 'Gender, working life and federation', in Mark Hearn and Greg Patmore (eds), Working the Nation: Working Life and Federation 1890–1914, Pluto Press, Sydney, 2001, p. 39.

^5.� K.J. James, 'A view from across the Irish Sea: Margaret Irwin and the sweating question in Ulster', Scottish Economic and Social History, vol. 22, no. 2, 2002, pp. 158–67.

^6.� W.B. Hammond, 'Wages boards in Australia: I. Victoria', Quarterly Journal of Economics, vol. 29, no. 1, 1914, pp. 98–148, especially p. 101.

^7.� Charles Fahey, 'Unskilled male labour and the beginnings of labour market regulation, Victoria 1901–1914', Australian Historical Studies, vol. 33, no. 119, 2002, pp. 143–60.

^8.� John Rickard, 'The anti-sweating movement in Britain and Victoria: the politics of empire and social reform', Historical Studies: Papers Read Before the Irish Conference of Historians, vol. 18, no. 73, 1979, pp. 582–97.

^9.� P.G. Macarthy, 'Victorian wages boards: their origins and the doctrine of the living wage', Journal of Industrial Relations, vol. 10, no. 2, 1968, pp. 116–34, especially p. 122.

^10.� Note a recent periodical reference to this period. The Australian Workers' Union, after its defeats in the strikes of 1890–94 reorganised itself and fought for compulsory arbitration throughout Australia; see the book review by J. Hagan, 'One big union: a history of the Australian Workers' Union, 1886–1994, by Mark Hearn and Harry Knowles', British Journal of Industrial Relations, vol. 35, no. 2, 1997, pp. 298–330. Also note trade union historian Sutcliffe who attributed the poor position of Victorian unions to depression in the construction and manufacturing industries; see J.T. Sutcliffe, A History of Trade Unionism in Australia, Macmillan, Melbourne, 1967, p. 151.

^11.� See Hansard, Victorian Legislative Assembly, vol. 77, 1895–96, pp. 3146–210.

^12.� Alan Gregory, 'Peacock, Sir Alexander James (1861–1933)', Australian Dictionary of Biography, Vol. 11, Melbourne University Press, Melbourne, 1988, pp. 173–75. Online version: <http://www.adb.online.anu.edu.au/biogs/A110180b.htm> (accessed November 2008).

^13.� In Victoria, a Conciliation and Arbitration Bill, based on the New South Wales 'dispute model', was introduced in every year from 1900 to 1905. See Macarthy, 'Victorian wages boards', p. 119; S. Macintyre and R. Mitchell (eds), Foundations of Arbitration: The Origins and Effects of State Compulsory Arbitration 1890–1914, Oxford University Press, Melbourne, 1989, p. 127.

^14.� Robin Gollan, Radical and Working Class Politics: A Study of Eastern Australia 1850–1910, Melbourne University Press, Melbourne, 1960, pp. 187–88.

^15.�Hansard, Victorian Legislative Assembly, vol. 77, 1895–96, p. 3146.

^16.� See endnote 10.

^17.� See Industrial Conciliation and Arbitration Act 1894 (NZ).

^18.� Justice Higgins pronounced the minimum wage jurisdiction inherent in the Conciliation and Arbitration Act 1904 (Cth) in Ex parte HV McKay (the Harvester case) (1907), 2 Commonwealth Arbitration Reports, p. 1. After that date, a minimum rate of wages became associated with the words 'fair and reasonable'.

^19.� See J.H. Portus, Australian Compulsory Arbitration, Hicks Smith and Sons, Sydney, 1971, p. 89. Portus's view is consistent with the approach taken by Chief Justice Madden in Fromison v Smith (1897), pp. 170, 173, although apparently at odds with Justice Hood in In re The Determination of the Artificial Manure Board [1905] VLR, pp. 19, 27, who would not even concede that the setting of a minimum wage was a part of his judicial function.

^20.� M. Cannon, 'The perilous course of events', in The Australian City: Unit A: Marvellous Melbourne: A Study of Nineteenth Century Urban Growth, Deakin University, Geelong, 1986, p. 167.

^21.� See the timeline for the depression years, 1891–95, provided by The Age website: http://150.theage.com.au/list_event.asp?intera=3

^22.�Ibid.

^23.� W.A. Sinclair, The Process of Economic Development in Australia, Cheshire, Melbourne, 1976, especially ch. 5.

^24.� Cannon, 'The perilous course of events', p. 171.

^25.� 'The late financial tension: the view of England', The Age, 1 December 1891.

^26.�Ibid., p. 100.

^27.� Robin Gollan, Radical and Working Class Politics: A Study of Eastern Australia 1850–1910, Melbourne University Press, Melbourne, 1960, p. 101: 'in New South Wales and Victoria more breadwinners were involved in industrial than in primary production, the margin in favour of industry being a good deal greater in Victoria than in New South Wales ... By 1890, in terms of the occupations of the people and in its contribution to national output primary production was no longer predominant in Australian industry.'

^28.� Noel Butlin, Investment in Australian Economic Development, 1861–1900, Cambridge University Press, Cambridge, 1964, pp. 203–4.

^29.� A.G.L. Shaw, The Economic Development of Australia, Longmans, Melbourne, 1967, p. 132.

^30.� Brian Fitzpatrick, The British Empire in Australia, Macmillan, Melbourne, 1969, p. 129.

^31.� J. Grant and G. Searle (eds), The Melbourne Scene 1803–1956, Hale and Iremonger, Melbourne, 1978, p. 213.

^32.� Henry Hyde Champion, 'Anti-Sweating League', Champion (Melbourne), 25 October 1895. For an online version, see: <http://www.reasoninrevolt.net.au/pdf/a000616.pdf> (accessed November 2008).

^33.� For example, 'The sweating evil', The Age, 14 April 1896, cited in full in Grant and Searle (eds), The Melbourne Scene 1803–1956, p. 212.

^34.� Note that the first ever established lock-out in Australian industrial history was conducted by the boot and shoe manufacturers of Victoria in response to the attempt by the Victorian Bootmakers Union to preventing employers from using sweated labour; see Argus, 20 November 1884, p. 6.

^35.�Factories and Shops Amendment Act 1896 (Vic).

^36.�Factories and Shops Act 1898 (Vic); Factories and Shops Act 1900 (Vic).

^37.�Factories and Shops Act 1896 (Vic), s. 15(1).

^38.�Ibid., s. 15(2).

^39.�Ibid., s. 15(4).

^40.� See, for instance, the objections of Parliamentarian Mr Murray Smith, in Hansard, Victorian Legislative Assembly, vol. 77, 1895–96, p. 3148: 'I am merely stating economic truth. If the market value of a product was not sufficient to enable the producer to pay a certain rate of wages, either he must cease to employ persons at that rate of wages, or pay it only to a few people, whilst others must go without any employment and starve.'

^41.�Factories and Shops Act 1896 (Vic), s. 16.

^42.�Hansard, Victorian Legislative Assembly, vol 47, 18 November 1884, pp. 2167–83.

^43.�Factories and Shops Act 1885 (Vic), s. 4.

^44.�Ibid., s. 18.

^45.�Ibid.

^46.�Ibid.

^47.�Ibid., ss 29 and 30.

^48.�Ibid., s. 37. For further discussion on the poor record of the Inspectorate on prosecutions under the 1885 Act, see W.G. Carson and Richard Johnstone, 'The dupes of hazard: occupational health and safety and the Victorian sanctions debate in historical perspective', Australian and New Zealand Journal of Sociology, vol. 26, no. 1, 1990, pp. 132–51.

^49.�Factories and Shops Act 1885 (Vic), ss 48, 49 and 50.

^50.�Ibid., s. 60.

^51.�Ibid., s. 50.

^52.�Ibid., s. 29.

^53.� For example, see J. Hutson, Penal Colony to Penal Powers, Amalgamated Metals Foundry and Shipwrights Union, Sydney, 1983, p. 45.

^54.� Sinclair, The Process of Economic Development in Australia, pp. 223–45.

^55.� See Laura Bennett, Making Labour Law in Australia: Industrial Relations, Politics and Law, The Law Book Company Limited, Sydney, 1994, pp. 9–14; Grant and Searle (eds), The Melbourne Scene 1803–1956, pp. 195–213.

^56.� However, note Keith Ewing, 'Australian and British Labor law: differences of form or substance?' Australian Journal of Labour Law, vol. 11, no. 1, 1998, pp. 44–68, especially p. 56, where he states that some out-workers were, in practice, exempt from the operation of the 1896 Act.

^57.� Grant and Searle (eds), The Melbourne Scene 1803–1956, p. 213: '[t]aking the three worst sweated trades in the metropolitan area, viz., the boot, clothing and dressmaking trades ... there were 5893 more persons engaged outside the factories than inside'.

^58.� This Act looked at individual aspects of the employment relationship that were felt to need modification in light of the strikes of the early 1890s. 'Employés' is a usage of the time. The left sloping grave '�' means that the 'e' is pronounced 'ee'.

^59.� This Act expanded the jurisdiction of county courts to make a range of orders relating to damages arising out of breach of contract, and gave the courts of petty sessions' jurisdiction to deal with disputes between employers and employees, and master and apprentice, when the damages did not exceed £50. It introduced summary proceedings for such disputes. The Act also introduced powerful new provisions enabling courts to deal with matters relating to conspiracy and protection of property.

^60.� Special Boards were first referred to as 'wages boards' in 1920: see Australian Labour Law Reporter, vol. 2, 1996, s. 11–050. For the sake of simplicity, 'Special Boards' will be referred to as 'wages boards' throughout this article.

^61.� Note R.J. Mitchell, 'Solving the great social problem of the age: a comparison of the development of state systems of conciliation and arbitration in Australia and Canada' in G. Keeley and G. Patmore (eds), Canadian and Australian Labour History: Towards a Comparative Perspective, Australian Society for the Study of Labour History, Sydney, 1990, p. 56.

^62.� See Hagan, 'One big union', p. 298.

^63.� The agreement of the Amalgamated Shearers Union and the Pastoralists Union was negotiated between April and December 1891 and referred to in Sutcliffe, A History of Trade Unionism in Australia, p. 101.

^64.�Ibid.

^65.�Councils of Conciliation Act 1891 (Vic), s. 3.

^66.�Ibid., s. 4.

^67.�Ibid., s. 6.

^68.�Ibid., s. 8(3).

^69.�Ibid., s. 12.

^70.�Ibid., s. 13.

^71.� For instance, In re Gibb (1901), 27 VLR, p. 209.

^72.� Macarthy, 'Victorian wages boards', p. 123, citing a letter from the Chief Secretary's Office, dated 9 June 1965.

^73.� For instance, the Metropolitan Court set up under Factories and Shops Act 1936 (Vic).

^74.�Fromison v Smith (1897), p. 170.

^75.�In re The Determination of the Artificial Manure Board [1905]. p. 19.

^76.�Fromison v Smith (1897), p. 170.

^77.� Quoted by Ruth Campbell in 'Madden, Sir John (1844–1918)', Australian Dictionary of Biography, Vol. 10, Melbourne University Press, Melbourne, 1986, pp. 371–73. Online access: <http://www.adb.online.anu.edu.au/biogs/A100365b.htm> (accessed November 2008).

^78.�Fromison v Smith (1897), pp. 170, 173.

^79.�Ibid.

^80.�Ibid., p. 174.

^81.�Ibid.

^82.�Hall v Bartlett (1897), 23 VLR, p. 1

^83.�Ibid., p. 2.

^84.�Martin v Beath, Schiess & Co [1905], VLR, p. 386.

^85.�Ibid., p. 390.

^86.�Ibid., p. 395.

^87.�Ibid., p. 386.

^88.�Ibid., p. 399.

^89.� Campbell, 'Madden, Sir John (1844–1918)'.

^90.� See Jones v Lorne Sawmills Pty Ltd (1923), VLR, pp. 58, 63 (per Cussen J).

^91.� J. McI. Young, 'Hood, Sir Joseph Henry (1846–1922)', Australian Dictionary of Biography, Vol. 9, Melbourne University Press, Melbourne, 1983, pp. 358–59. Online access: <http://www.adb.online.anu.edu.au/biogs/A090358b.htm?hilite=hood> (accessed November 2008).

^92.�In re The Determination of the Artificial Manure Board [1905], VLR, pp. 19, 27.

^93.�Ibid.

^94.�Ibid.

^95.� See the online entry for 'wages boards' given by the Australian Trade Unions Archives: <http://www.atua.org.au/biogs/ALE1462b.htm> (accessed November 2008).

^96.� M.T. Rankin, Arbitration and Conciliation in Australia, Allen and Unwin, London, 1916, p. 65.

^97.�Hansard, Victorian Legislative Assembly, vol. 77, 1895–96, p. 3140.

^98.�Factories and Shops Act 1896 (Vic), s. 15.

^99.� Macarthy, 'Victorian wages boards', p. 123.

^100.� Bernard O'Dowd, 'The city', reproduced in Leon Cantrell (ed.), Writing of the Eighteen Nineties: Short Stories, Verse and Essays, University of Queensland Press, St. Lucia, Queensland, 1977, p. 32.

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