Securing the Man: Narratives of Gender and Nation in the Verdicts of Henry Bournes Higgins

By Mark Hearn*


Note: The following paper was presented to a ‘History on Monday’ seminar, in the Department of History, University of Sydney seminar program, 24 March 2003. A revised and refereed version of the paper has been accepted for publication in Australian Historical Studies.

Henry Bournes Higgins, President of the Commonwealth Arbitration Court, 1907-1921, created ‘a new province for law and order’

Henry Bournes Higgins had perhaps the most influential role of any of the architects of the “Australian Settlement” that flowed from the federation of the Australian colonies in 1901 – the promotion of economic, social and cultural protectionism through high tariff barriers, immigration restriction and compulsory arbitration. (1) As a delegate to the 1897-8 federal convention that produced a draft constitution for the Commonwealth of Australia, and subsequently as a member of the Commonwealth Parliament (1901-1906) and President of the Commonwealth Conciliation and Arbitration Court (1907-1921), Higgins helped shape and dominated the implementation of the Commonwealth Conciliation and Arbitration Act 1904. By the early 1920s Higgins had fundamentally influenced Australian arbitration as it was practised in both Commonwealth and state jurisdictions.

Central to Higgins desire to create ‘a new province for law and order’, the title he gave to his own interpretation of his project, were gendered conceptions of work and citizenship, based in a recreation of patriarchy in national wage structures. Higgins described marriage as the normal fate of a normal man; (2) in his first case, the 1907 Harvester judgment, Higgins took this normality as his guide in applying the principle of the “living” or “basic” (as defined in the Commonwealth system) minimum wage, to be paid, ideally, to male breadwinners and their dependent wives and children.

Historians have long debated Higgins marginalisation of women and its effects on their participation in the paid workforce. Higgins motivations have been less thoroughly explored. Gender demarcation clarified the role of the working class in nation-building. Women were relegated, as much as possible, to the domestic sphere to fulfil their motherhood role on behalf of the nation, clearing the way for the establishment of the disciplined workplace functions of the male breadwinner. As Higgins observed in 1911, the Conciliation and Arbitration Act was designed to secure ‘industrial peace’, to facilitate national productivity and progress, and ‘…the best way of securing peace is to secure to the man, as far as possible, wages and conditions of life on a level with the current standards of the community.’ (3) On behalf of the development of the young Commonwealth Higgins regulated working class manhood by suppressing industrial militancy, upholding the right of management to rule their workplaces and marginalising the participation of women in the workforce.

Gender and National Identity
Pateman observed that ‘political theory is full of stories of men giving political birth, of men creating new forms of political life.’ Men, as Lake sardonically adds, ‘give birth to nations’, although much analysis of nationalism has been blind to ‘gender dynamics’, as Lake found of Anderson’s Imagined Communities. (4) McClintock and Hall et. al. have also identified this blindness; of Imagined Communities, Hall et. al. observe a crucial inattention to subjectivity, ‘…no explanation of the ways in which individual men and women internalise particular beliefs.’ (5) Or, as Scott has argued, how internalised beliefs and gender dynamics were reproduced as narratives of public policy and civic behaviour, to construct ‘…categories of identity’. (6) Eley observes that for nationalist movements, ‘possessing the nation state, with its juridical machinery of constitutions, legal codes, courts and police … made an enormous difference to the strength of national identifications.’ (7) Invited to assume control of the new state machinery of compulsory arbitration by like-minded nationalists and protectionists in the Deakin government, Higgins was able to influence the construction of a gendered national identity.

Patemen cited Higgins’ Harvester judgment and the ‘family wage’ precedent it established as emblematic of capitalist social and sexual divisions. As the modern wage system developed from the nineteenth century women were held in ‘the private realm of protection’ as mothers and domestic workers, their contribution to national productivity hidden. Male breadwinners had their productivity measured, their workforce and family responsibilities recognised, connecting their labour to the development of society and participation in an active citizenship. ‘[M]en as wage labourers share in the masculine capacity to create and nurture new political life.’ (8) An interpretation shared by Ryan and Conlon’s Gentle Invaders and Grimshaw et. al. in Creating the Nation. Harvester did much to give practical expression to the ‘gendered settlement’ of Federation. (9)

Bennett has argued that the Commonwealth Arbitration Court’s decisions on equal pay largely followed established custom and practice from state jurisdictions and rejects ideological or cultural explanations of the Commonwealth Court’s rulings on women’s wages, such as she found in Gentle Invaders. (10) Bennett’s interpretation was challenged by Frances: ‘racist, sexist and class ideologies dovetailed to provide a rationale for lower wages for women.’ (11) McClintock, Hall and Lake have stressed the relationship between the categories of gender, race and class, and the need to explore the expression of these ‘articulated categories’ in the development of nationalist consciousness in the late nineteenth century. (12)

Bennett did not explore the motivations that underwrote Higgins’ gender discrimination and the values of gender and nation to which he was giving voice, reflecting similar absences in the literature on Higgins. Pateman and Grimshaw et. al. did not address Higgins nation-building motivations; neither Macarthy nor Rickard explored the gender or nationalist dimensions of Higgins judgments. (13) Recent research into Higgins decisions have been primarily concerned with specific industry, workplace and managerial outcomes. (14) It is necessary to return to a close reading of Higgins’ verdicts, and his commentaries on his own work, to link the discrete processes of conciliation and arbitration with the nation building ideals that guided Higgins judgments and informed his gender demarcations.

Higgins verdicts were driven by an assumption that ‘Men … represent the progressive agent of national modernity (forward-thrusting, potent and historic)’. (15) Higgins believed that prior to Federation, the progressive agency of working class Australian men had been denied in the bitter industrial disputes of the 1890s, ‘with their attendant losses and privations, turbulence, and violence’, strikes primarily stirred by state and employer resistance to union recognition. (16) Male workers should not be asked to labour on behalf of the nation without recognition of their unions, their nascent citizenship, or some reasonable measure of wage justice. ‘Give them relief of their materialistic anxiety; give them reasonable certainty that their essential material needs will be met by honest work, and you release infinite stores of human energy for higher efforts, for nobler ideals’. (17)

Higgins’ National Narrative
In his judgments and subsequent writings and speeches Higgins constructed a dramatic narrative for the interpretation of his pioneering nation-building work. A New Province for Law and Order was the proud declaration he first employed in 1915 to describe his ambitions, and repeated as the title of his 1922 collection of articles.(18) A New Province reflected the self-consciously organic nature of Higgins’ mission; commentaries that followed his own experience. Higgins established his province, leading others forward, ‘…with no book of instructions, no teacher other than experience, no kindly light except from the pole star of justice.’ (19) Readers would see ‘…how standards have been created for industrial relations, how the human instruments of industry have had their lives brightened, and how extremely few have been the stoppages of work in disputes within the competence of the Court.’ (20) Setting standards, elevating lives, soothing unrest; these were the paternalistic metaphors that governed Higgins province.

Higgins’ decisions reflect not only a response to the industrial conditions faced by Australian workers, but were intended as a prescription of what sort of citizens they should become and how they should behave. Higgins ideals evolved from a middle-class liberalism that had its ideological and cultural roots in the United Kingdom, and which its Australian acolytes hoped would be creatively reconstituted in the new Commonwealth. (21) Born into a middle-class protestant family fallen on hard times in Ireland in 1851, Higgins assiduously worked his way to the Melbourne Bar by 1876. The ambitious Higgins was conscious of an insider/outsider status – an identity he cultivated as a radical protectionist in colonial and national politics, agitating for Home Rule and opposing Australian participation in the Boer War. (22) Higgins also had before him a model of ‘the rebel as judge’ in Victorian Chief Justice George Higinbotham, who signed Higgins Bar nomination and walked a line between at times controversial social and political reforms, expressing a sympathy with the labour movement while seeking to preserve the culture and its class structure. (23) When Higgins served as Labor’s Attorney-General in the short-lived 1904 Watson government (without joining the Party) he did so to help ‘the poor fellows’ – an expression of class rather than personal condescension. (24) Higgins would help the inexperienced Labor men in their practice of government, and represent by his presence in the Labor cabinet a symbol of tolerant inclusion. Elevated to the High Court bench in 1906, Higgins bade farewell to politics in order to do ‘…my duty to Australia.’ (25)

Succeeding the cautious Justice Richard O’Connor as president of the Arbitration Court in 1907, Higgins worked alone on the bench until the appointment of a deputy president to assist him in 1913. By that time Higgins had established the Commonwealth Court as the intellectual leader of the generally more conservative state industrial tribunals and the New Zealand compulsory arbitration system. Several of these jurisdictions preceded the Australian Commonwealth system; none had proved as innovative. (26) Higgins developed the precedents that underwrote the thirty-three ‘propositions’ of Australian conciliation and arbitration that first appeared in A New Province in 1915, as an article commissioned by the Harvard Law Review, curious about the Australian experiment. (27) Higgins claimed that in the construction of his propositions the Conciliation and Arbitration Act ‘…left me free to inform my mind as best I could; and I was at full liberty to limit the evidence, or to even act without evidence.’ (28) Evidence legitimated Higgins nation-building narrative. Polkinghorne argues that narrative is a process of ‘purposeful engagement’ between the individual and the public sphere, drawing together ‘…diverse events, happenings, and actions of human lives into thematically unified goal-directed processes.’ (29) Higgins adjusted the evidence of the lives and practices he encountered in his jurisdiction to the values and challenges of his narrative - the ‘frugal comfort’ of the living wage, ‘the problem of female labour’, the management of workplace discipline and the maintenance of industrial peace. These codes of reward and sanction, permissible and constrained behaviour, were underwritten by a powerful sense of national duty that he felt compelled to honour, and which he expected employers, workers and unions to share.

Transcript of evidence presented in the 1907 Harvester case. The evidence of household budgets was provided by women but not necessarily expressed by them.

Somers has identified a need to clarify the ‘crucial intersection’ of ‘public narratives’ (of the workplace, church, government, and nation) with ‘social forces’ (market patterns, institutional practices, organizational constraints) to explain social action or the process of institution building. (30) In his ability to transfer his idealisation of workplace behaviour to both discrete and at times industry-wide outcomes, Higgins was uniquely placed to fulfil the terms of his narrative – and later to excuse its failings. Higgins’ public narrative reflected the characteristics identified by Somers – ‘drama, plot, explanation’ and significantly, ‘selective appropriation’. As this article demonstrates, Higgins was prone to rationalise or overlook High Court and employer resistance to his decisions; he could not always reconcile the competing demands of worker justice and industrial discipline that confronted him; he strove to construct distinctive gender roles between work and home, and more problematically, in workplaces shared by men and women. “Propositions” suggest a negotiated authority, implicitly acknowledging constraints upon his judgments and a cultivated humility – he could not quite insist on the irresistible logic of “rules” - although in their language Higgins adopted an almost biblical gravitas:

1. One cannot conceive of industrial peace unless the employee has secured to him wages sufficient for the essentials of human existence.
2. This, the basic wage, must secure to the employee enough wherewith to renew his strength and to maintain his home from day to day. (31)

This article explores the tensions and contradictions generated by Higgins verdicts, and the heterogeneous forces - in state, employer, union and worker response - that challenged his holistic ambitions.

Harvester and the National Asset of Manhood
The 1907 Harvester judgment was an extension of the national protection measures developed under the Deakin Government’s “New Protection” strategy - a comprehensive tariff regime to protect Australian industries and jobs. 112 Victorian manufacturers had applied for a declaration under the Commonwealth Excise Tariff Act 1906 that they provided fair and reasonable remuneration for their employees, and were therefore entitled to tariff protection. The Excise Tariff Act fell under Higgins jurisdiction, and he chose to establish his minimum wage system via the application of Hugh Victor McKay’s Sunshine Harvester works in Melbourne, where 495 employees made agricultural implements including McKay’s innovative stripper harvester. (32) Higgins believed that ‘if protection at the Customs House must be given to the employer, protection of a just standard of life must be secured to the workman.’ (33) The protection provided by a state-regulated minimum wage would establish an attractively simple equation between working man and nation.

Higgins believed that a minimum living wage could only be found in patriarchy. ‘In finding this basic or living wage, we treat marriage as the normal fate of a normal man.’ A living wage was ‘…that part of the wages which is necessary for the man’s manhood’, allowing manhood to flourish in work, citizenship and marriage. (34) Finding the living wage required the testimony of women. In the Harvester judgment Higgins decided to seek a suitable measure of ‘the normal needs of the average employee, regarded as a human being living in a civilized community.’ Having defined the terms of his civilising mission Higgins required evidence to legitimise his claim. ‘At my suggestion, many household budgets were stated in evidence, principally by housekeeping women of the labouring class.’ (35)

The evidence of household budgets was provided by women but not necessarily expressed by them: only three women gave evidence in the case, although nine budgets were submitted. Six budgets were tended in evidence by the husbands of the women who prepared them. Mary Smith and Kate Russell described lives preoccupied with feeding and clothing their families. Around £2 9s a week had to stretch to the demands of rent and a few shillings spread to each purchase of meat, milk, bread and vegetables; Mary Smith could not afford to buy clothes or boots from the weekly budget. Two of the Smith’s seven children worked, bringing in 15s which enabled her to buy clothes and boots. ‘My husband sometimes buys his own things outside of what he gives me.’ Neither woman knew exactly what her husband earned. Kate Russell’s husband gave her £2 10s: ‘I spend it all. It is not enough to keep the family going.’ After dispensing £2 9s 9d on the family of eight’s weekly needs she was left with threepence for herself. Both families often had to make do with poor cuts of meat; until recently Kate Russell’s family had only enjoyed meat as a Sunday luxury, otherwise resorting to meals of porridge and bread and butter. Neither family was amongst the poorest in the Port Melbourne district in which they lived. All the witnesses testified to frustration with the poorly maintained and overcrowded homes they rented; most were two story four or five room terraces. Frederick Kent described a small house with ‘very dark’ rooms. In the absence of a bathroom he bathed the children in a ‘big tub’ on Saturday nights. (36)

As the interpreter of these living standards, Higgins assumed that workers would accept ‘frugal comfort’, a phrase Higgins seems to have borrowed from the papal encyclical Rerum Novarum’s recommendation that workers remuneration should provide them with ‘reasonable and frugal comfort.’ (37) In settling on a fair and reasonable rate Higgins tried to provide the financial stimulus of a humble yet hopeful life, with savings, accident and benefit insurance, books and newspapers, amusements and holidays, dues for union obligations and dispensations to charity, as well as attending to the needs of a life. Higgins seemed to imagine a frugal version of himself - a tired breadwinner in a worn chair after a day of labour, sustained by his self-improving books and papers, with a weather eye on the daily needs of his family and their future security, content in his modest citizenship. For the basic requirements of shelter, food and frugal comfort he decided on 42s a week or 7 shillings a day, with marginally higher rates for skilled workers. (38)

Harvester was not bold in the rate it set for an unskilled labourer – only a few shillings a week more than contemporaneous decisions in the commonwealth or state jurisdictions – but for its establishment of a definite minimum male wage, tied to family responsibility. (39) Even in this Higgins was anticipated by the New South Wales Industrial Arbitration Court - Justice Charles Heydon’s decision in the 1905 Sawmiller’s case, although Harvester made far more specific and elaborate claims of the citizenship rights and duties of the breadwinner. Nor did Heydon consistently apply his living wage ruling in subsequent decisions. (40)

The conservative Sydney Morning Herald warned that business might struggle to pay Higgins’ minimum; its uniform imposition could ‘curtail’ capital investment. (41) The Herald might have been reassured had it closely considered Higgins appropriation of Rerum Novarum’s stress on frugal comfort, and its implied notions of the virtues of hard work and plain living. Higgins stress on the frugality of his basic wage in Harvester and later decisions was a signal to employers and unions of its disciplinary function, anchoring workers in the system and tying margins for skill to an austere standard; just how austere may be gauged from the evidence of Frederick Kent, a skilled blacksmith who explained to Higgins that there was no scope in his family budget ‘for amusements, or liquers, or savings’. Kent earned 54s a week and supplemented his income as a marker in a billiard room. Kent’s wage and household budget were typical of those submitted in evidence. (42)

In his subsequent judgment Higgins did not reveal if he was troubled by how little his minimum seemed in comparison to the conditions described - the weight of tended evidence powerfully suggested that to live on seven shillings a day, although an improvement, was still to live on the margins of poverty. Nor did he explore why Kate Russell did not know how much her husband earned, or why Mary Smith’s husband spent money on himself while she had nothing extra. These assertions were left in the transcript, unassimilable into Higgins cultivation of a frugal family. Ironically, male unskilled workers were also largely ignored in the Harvester hearings. Not one of McKay’s workers’, or anyone who would have to live on seven shillings was called to give evidence – the unions’ feared victimisation by the company, and presented skilled tradesmen who worked in other factories and union officials as witnesses, a telling indication of the constraints from under which Higgins struggled to negotiate a living wage. (43)

Soon after Harvester The Bulletin recognised that the decision and its gender assumptions represented a vital step in nation-building. Stressing ‘…that the best asset of a nation is its manhood’, the Bulletin argued that ‘…[t]he increase of well-paid citizens able to marry and keep comfortable homes is not a side issue, but the actual aim of the New Protection…Australia has no room for the high-tariff and low-wage capitalist.’ (44) Some labour movement observers praised Higgin’s empathy with workers; the Sydney Worker hailed the decision and H.H. Champion told Higgins that Harvester was ‘a really magnificent statement of the case of the poor man’ and wanted to distribute the judgment around Australia as a penny pamphlet. (45) Higgins privately conceded to Deakin that in Harvester he had engaged in ‘legislative work’, usually beyond the bounds of the judiciary, but quickly added that ‘I have carefully considered every possible aspect of the problem.’ (46) Considering every aspect, Higgins could award no more than seven shillings; he was hemmed by precedent – legal and cultural - and a reluctance to inhibit nation-building enterprise, reflected in his awe-struck appreciation of Sunshine Harvester - ‘a marvel of enterprise, energy and pluck.’ McKay ‘…has invented successful machines, has produced them in great numbers … in competition with the world.’ (47)

In his judgment Higgins negotiated a path to national progress, drawing the unwilling McKay towards basic obligations to his employees while insisting that he would uphold McKay’s managerial prerogative - his ‘absolute power’ to choose his employees and maintain a ‘high pressure’ workplace regime. (48) Higgins nationalist and protectionist instincts also emerged in his rejection of union submissions to inspect the company’s accounts. ‘I shall certainly refuse to pry, or to allow others to pry, into the financial affairs of the manufacturers, or to expose their financial affairs to their competitors in business.’ (49) Higgins had in mind international competitors, McKay’s serious rivals. (50) Higgins demonstrated a willingness to placate McKay’s suspicion of the court, even if that involved a precedent that might restrict his future pursuit of wage justice, or that in the national interest he must accept the workplace regime employers exercised over their workers: there was nothing in the Conciliation and Arbitration Act that prohibited Higgins from interceding to influence workplace disciplines, interrogate company finances or challenge management edict. (51) From the broad – if not vague – instructions handed to him by Parliament Higgins selected the rationales of his province; while at times constrained by High Court intervention, Higgins also constructed his own restrictions.

Choosing McKay’s application proved Higgins introduction to the difficulties of forcing the world to bend to his will. McKay remained obstinately determined to maintain a low wage regime; (52) he overcame the Harvester decision by challenging, in the High Court of Australia, the Commonwealth’s ability to determine wage issues under the Excise Tariff Act. McKay went on to further resist wage increases and unionisation at his plant from 1907 and into the 1920s. (53)

In A New Province Higgins rationalised the failure of his Harvester judgment for the workers it was intended to benefit by implying that McKay had deceived him – ‘…the employer did not raise before me the point that the Act was invalid’ - by turning the judgment into precedent, and leading the debate on the meaning of this celebrated declaration of a fair and reasonable wage in his own articles and verdicts. (54) The principles of Harvester, he wrote in A New Province, ‘…are substantially accepted, I believe universally, in the industrial life of Australia.’ (55) A lesson that permeated wages policy and the construction of the Australian national narrative, both amongst his contemporaries and subsequent historiography. Although Macarthy initiated a searching reconsideration of Harvester in 1967 - highlighting the slow acceptance of his standard, particularly in state industrial tribunals - he argued that by the 1920s Higgins’ Harvester formula had become ‘…the starting point for all calculations of the Basic Wage.’ (56) In 1984 Rickard’s biography reasserted a sympathetic appraisal of Higgins work; with Harvester Higgins established the Commonwealth Arbitration Court as ‘…the keeper of the nation’s social conscience.’ (57) The more complex and less appealing precedents of managerial prerogative slipped from sight, perhaps encouraged by a focus on Higgins ‘caustic interpolations’ directed from time to time at employers during hearings and in his verdicts, including his famous 1909 confrontation with Broken Hill Proprietary Ltd. over the company’s refusal to pay the living wage. (58) Stung by BHP’s unwillingness to accept his verdict Higgins, in typically portentous language, declared the ‘…living wage a thing sacrosanct, beyond the reach of bargaining’. BHP ignored this injunction and closed its mining operations for two years in order to avoid paying the award – a sobering development Higgins overlooked in his discussion of the case in A New Province, preferring to simply restate his ‘sacrosanct’ principle. (59) Neither caustic exchanges, highly publicised disputes nor, as Plowman has argued, the stubborn resistance of many employer organisations to compulsory arbitration in the period distracted Higgins from the consistent defence of managerial prerogative established in Harvester. As Cockfield notes, Commonwealth Arbitration Court reluctance to interfere in management strategy facilitated McKay’s reorganisation and control of the labour process in his factory in the period 1907-1920 – a reluctance established with Higgins’ Harvester precedent. (60)

‘Bracing Up The Men’: Higgins defence of Managerial Prerogative
In a boot trades industry decision – the Whybrow case of 1910 - Higgins offered a precise definition of his defence of managerial prerogative, and repeated as proposition 31 of A New Province:

I conceive it to be my duty to leave every employer free to carry on his business on his own system, that he may make the greatest profit within his reach, so long as he does not perpetuate industrial trouble or endanger industrial peace. (61)

This self-imposed defence of management right to manage, choose his employees or new technology was a benefit offered not only so long as the employer preserved industrial peace but ‘satisfied’ that is, respected, ‘the essential human needs of his employees’; a respect designed to serve the cause of nation-building. ‘Human life’, Higgins declared in Whybrow, was ‘…the most valuable asset of the state, [that] must be protected, whatever else suffers [my emphasis].’ (62) Human life, in Higgins’ verdicts, had two dimensions: inherent individual rights and national asset. The apparently universal values of human life that Higgins championed had explicitly gendered assumptions. In Whybrow Higgins felt compelled to intervene in the employer-employee relationship to protect ‘manhood’ – by restraining managerial prerogative in the name of the nation.

Higgins believed that the boot trades employers were using boy and unskilled labour, or ‘improvers’, to deskill the workforce and introduce high-speed mass production techniques in the industry. Higgins criticised the ‘extreme specialization’ of work tasks, and used the evidence of boot trade employees to legitimise his decision to limit the employment of youths. To justify this uncharacteristic challenge to the employer’s right to choose his employees, Higgins invoked his wider obligation to protect the commonwealth: ‘the system of improvers…is a perpetual menace to the peace of the community.’ Higgins was ‘glad’ that the Australian Boot Trade Employees Federation’s claim for a rigorous apprenticeship system tended ‘…in the direction of industrial efficiency.’ This ‘great Australian industry’ was retarded by inefficiency and competitive employer rivalry that spurred the unregulated employment of youths and intensified work practices. As ‘intelligent, skilled artisans’ passed from the trade, ‘the Commonwealth will have thousands of anaemic, ill-developed, under-trained factory slaves – youths unfitted for any work but the feeding of some one insatiate machine.’ (63) The Boot trades employers posed a threat to male and hence national vitality. Higgins established a minimum wage for the industry in line with Harvester, and provided margins for skilled workers; he also recommended, but could not under the Act order, the implementation of an apprenticeship scheme - a state rather than Commonwealth responsibility. Being, as he confessed, ‘inexpert’ in such matters, he relied upon the ‘solid confirmation and guidance’ of the Webbs’ Industrial Democracy to propose a scheme which he felt offered the Australian state that first adopted it competitive advantages for its manufacturers and advantages ‘…in the quality of its manhood.’ (64)

In the Whybrow judgment the boot trade workers spoke through Higgins; their voices were heard in the national narrative, although in Higgins terms, and a defence of his conception of the Commonwealth. Fortuitously, their grievances over improvers coincided with Higgins’ desire for national industrial efficiency sustained by a robust manhood. The Whybrow case had significance as precedent, although one not welcomed by Higgins. Boot trade employer legal challenge resulted in the High Court ruling that the Conciliation and Arbitration Court could not make a common rule - that is, apply the terms of a new Boot Trades Award across the entire industry, and effectively across both state and commonwealth industrial jurisdictions, but had to confine the award to the employers specifically a party to the application. (65) The High Court ruling struck at the heart of his intention to make industry-wide and hence effective national decisions. His recommendations for apprenticeship schemes also suffered from the slow co-operation of the states. (66) Once again, Higgins decision had been undermined by forces beyond his control. (67)

Notwithstanding his trenchant objection to ‘extreme specialization’ and the pressures of high speed, mass production techniques, the Whybrow judgment reflected Higgins sensitivity to the employer’s position. ‘In the strain of competition, the pressure on the employer is often very great.’ This justified the employers’ right ‘to put the utmost pressure on anything and everything, except human life.’ (68) Yet as he acknowledged in Harvester, Higgins believed that it was desirable that employees were subject to at least some workplace pressure.

The ‘absolute power of choice’ Higgins granted employers in the selection of employees and framing their conditions of work had a specifically gender characteristic. In 1911 Higgins argued the ‘freedom of choice’ he offered employers ‘tends to the efficiency of the industry, bracing up the men to show their powers.’ (69) Higgins assumed that it was his duty to improve, through workplace discipline, the quality of the men’s “manhood”, so that they might fulfil their obligations in ‘the strain of competition’. Women had to excluded, or at least highly marginalised, in the competitive male domain of Higgins industrial province.

Higgins travelling to Mildura in 1912 to take witness evidence for the Fruitpickers case. Asked if she felt that she worked as hard as the few men who worked alongside her in the packing shed, Margaret Allen told the court: ‘usually I did more than any of the men.’ Evidence which did not prevent Higgins from awarding women packers a lower rate of pay, and establishing the precedent of paying women less than men.

‘The Problem of Female Labour’
It was not until 1912 that Higgins was confronted with the need to arbitrate wages for women workers, although he had handed down over forty judgments since 1907. This long neglect reflected the marginalisation of women workers, some 20% of the Australian workforce in 1912 – a marginalisation Higgins felt bound to clarify and enforce in the name of the nation. (70) 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. Higgins acknowledged another precedent setting judgment – ‘This is the first time that this Court has had to deal directly with the problem of female labour.’ (71) The immediate “problem” flowed from being forced to distinguish between women who worked with men in fruit picking, and whom he decided must share the benefit of the male minimum wage rate, and women who dominated packing work in the fruit sheds and who could be paid less. Higgins awarded a shilling per hour for the pickers and nine pence per hour for the packers.

Higgins was reluctant to grant equal pay to the women fruit pickers. He did so only after invoking the sexual contract as an unavoidable and historic responsibility faced by male breadwinners: ‘If he has a wife and children, he is under an obligation – even a legal obligation – to maintain them. How is such a minimum applicable to the case of a woman picker? She is not, unless perhaps in very exceptional circumstances, under any such obligation.’ (72) Nonetheless Higgins felt that as the relatively few women pickers did the same work as men, he could award equal rates without unduly disturbing prevailing sexual and economic relationships. ‘Fortunately, for society, however, the greater number of bread winners are still men.’ (73)

Higgins obscured the discrimination against women by observing that ‘the employer will … be at liberty freely to select whichever sex and whichever person he prefers for the work. All this tends to greater efficiency in work, and to true and healthy competition … by making oneself more useful to the employer.’ (74) As Higgins had made clear in 1911, his desire to provide wage justice for male and female workers competed with his own concepts of industrial efficiency and appropriate workplace gender roles. In the Fruitpickers’ judgment he obviously expected that employers would generally find men more useful than women. Through healthy competition for jobs workers were required to connive in their own workplace discipline and gender divisions - in Higgins mind to the benefit of the nation, as much to that of the employer, who reaped the immediate productivity gain.

Higgins prefaced his findings about pay rates with a caution that the Riverina fruit industry ‘is well worthy of care and attention.’ He had inspected the irrigation settlements of Mildura and Renmark, ‘a monument to the foresight, enterprise and pluck of the founders and pioneers.’ He described the extent of cultivated acreage, ‘bountiful’ harvests and their contribution to national wealth; he felt relieved by employer assurances that they could pay the new rates he established. (75) The women packers provided a justification of their own marginalisation: Higgins decided that their gender was the cause of their domination of the packing sheds. Higgins observed the women ‘trimming boxes of fruit for show in shop windows’, as he later recalled, and found their tasks ‘lighter’ than those performed in the field by the pickers. ‘…I have no doubt that the work is essentially adapted for women with their superior deftness and suppleness of fingers.’ (76)

Margaret Allen told the Court that pitting apricots and packing the trays in Pickerings’ mud shed was ‘very tiring’. She started at 7.30 in the morning and worked until 8 pm, and frequently ‘fasted’ from mid-day until she returned home by bicycle, several miles from the shed. Throughout the day she was periodically bathed in the pungent fumes of the sulphur used to prolong the freshness of the fruit. Paid by the packed box, she had to work quickly in order to try to make a reasonable rate of pay from the often inadequate supplies of ripe fruit brought in fitful deliveries from the fields. Often she did not have enough work to make the nominal eight shilling daily minimum; she had recently averaged 5s 8d. There were 14 mostly women packers’ at Pickerings; asked if she felt that she worked as hard as the few men who worked alongside her in the shed, Allen replied: ‘usually I did more than any of the men.’ (77) Higgins was not persuaded. Classified as women’s work, ancillary to the essentially male enterprise of cultivation and harvest, the packers’ tasks justified a lower rate of pay. Nor did Higgins prohibit piece work, as the unions urged; Higgins upheld the right of ‘employer discretion’ to pay by time or piece rates – so long as they paid his minimum. (78) Piece workers like Margaret Allen were left to the goodwill of the employer and union vigilance to ensure they earned a 9s minimum - having consistently failed to earn 8s in the past.

Higgins’ subsequent decisions on women’s pay rates followed the principles laid down in the Fruitpickers case and were duly set out as propositions 25 and 26 of A New Province, influencing Australian wage fixation towards women’s wages until the equal pay cases 1969-1974. (79) Higgins himself was soon forced to confront, or excuse, the contradiction of proposition 25 – to apply the ‘principle’ of the living wage to women, ‘with a difference’, that apparently flowed from their lack of legal responsibility for maintaining a family.

In the 1914 Felt Hatter’s case Higgins decided that women were entitled to a ‘living wage’ of 30 shillings a week, whilst men were awarded 51s, and male youths were entitled to 12 shillings at 14-15 years of age, rising to 42s for 20-21 year olds. Higgins assumed that an adult woman could live on the same wage as a male of 17-18 years – and took issue with arguments that mere ‘girls work’ should receive less. ‘Can she live on coarser food…Does her clothing cost less?’ Having characterised a rate substantially less than the male rate as also providing the ‘frugal comfort’ of a living wage, he abruptly conceded that 30s was inadequate ‘for illness, want of work, or future needs.’ Nor did 30s seem much compensation, by his own account, for the fact that the women in the industry were on call all year at the employer’s convenience, but were not necessarily employed all year; and when at work the women were driven hard, ‘feeding machines’. Echoing his comments on mass production technology in Whybrow, Higgins lamented that ‘Women have to stand up to their work for eight hours a day, day after day, and month after month, and they are kept constantly going while at work. The machines will not wait.’ The machines seemed to haunt Higgins’ imagination, although his resistance to equal pay asserted itself over his stirred conscience; a sense of the wider employer and national requirements compelled him to suspend these women workers in marginalised economic and social categories, and so drive them and their future needs towards the secured condition of their gender – marriage and children. (80)

Higgins attitude to womens’ citizenship was ambiguous. Higgins welcomed the establishment of universal suffrage with the passage of the Commonwealth Franchise Act 1902, citing ‘women’s suffrage’ as an example of Australian innovation and progress. (81) In the 1919 Clothing Trades case Higgins explicitly elaborated a concern for the good citizenship of women and a desire to encourage their national utility. Higgins cited the conditions faced by women clothing trades workers as justifying the virtually unprecedented reform of a shorter working week - 44 hours instead of the standard 48, previously awarded only to the underground miners at Broken Hill in 1916. (82) Higgins invoked the national welfare, as well as that of the women, as justification of a reform that overrode immediate employer or industrial need: ‘A great proportion – about one quarter – of the female workers are girls from the age of about fifteen upwards; and at this critical time of their lives they cannot be made victims of the Juggernaut of industry without permanent loss to the nation. It seems reasonable to hold that the more delicate sex should have a lower standard of hours than men, in ordinary occupations.’ Higgins also cited evidence from industrial research in England and the United States to the effect that ‘a 44-hours’ working week is the most suitable for women in the clothing trade, having regard to health efficiency and output.’ Shorter hours would stimulate the delicate young women to greater productivity. In order to avoid ‘deranged’ work practices and ‘discontent’ amongst male workers, Higgins decided that they must also share the benefit of the shorter week. (83)

Bennett has argued that Higgins’ 44 hour decision was a ‘realistic’ attempt to redress the conditions faced by women clothing trades workers, although it reflected ‘paternalistic and sexist’ elements. (84) Higgins decision was also driven by his views on nation and race. Searching for precedents for his decision, Higgins referred to a national voluntary agreement in the United States to reduce the standard week for clothing trades workers to 44 hours. ‘This fact is all the more striking and important, inasmuch as the union consists mainly of women and of what are called “Dagoes” – people from the south and east of Europe. It is not a union protected by the American Federation of Labour.’ (85) Higgins implied that the Australian clothing trades workers, predominantly women, were like his seamlessly associated categories of women and southern European immigrants in the United States – on the margins of economic life and industrial protection, able to be granted a concession in recognition of the conditions under which they laboured without spreading that concession throughout the workforce – and indeed their exclusion was intensified by the extraordinary reform. McClintock argues that race, gender and class ‘…come into existence in and through relation to each other.’ (86) In Australia, these ‘articulated categories’ helped to define the nation by marking the boundaries of exclusion and inclusion, and the gradations of inclusion, of citizenship rights and duties, for those who passed the most fundamental test – racial identity. Lake has argued that Higgins judgments, particularly Harvester, were part of a ‘transnational discourse of nation and race’. (87) Harvester ‘empowered white manhood’. (88) The Immigration Restriction Act 1901, a key tenet of the Australian Settlement that Higgins had trenchantly supported in parliament, substantially eased his responsibility to police racial exclusion by barring non-whites from entry to Australia – and hence access to the benefits of the arbitration system. (89) The 1919 Clothing Trades case nonetheless demonstrated that the values of White Australia, reinforced by an international precedent of racial exclusion, could infiltrate his verdicts, significantly in a decision that eased the conditions faced by women clothing trades workers and simultaneously isolated them from their male counterparts.

The extraordinary concession on working hours was underlined by continuity in wage rulings. In the same case Higgins awarded a wage of 65s per week for male clothing trades workers. Following a formula outlined in British sociologist Seebohm Rowntree’s The Human Needs of Labour, which Higgins detailed in his judgment, he found that the women’s wages should be 37s a week, less than the Federated Clothing Trade’s Union’s claim of £2; he awarded 35s. As Patmore observes, in setting the rate at 54% of the male basic wage Higgins established ‘the customary minimum in Commonwealth awards’ a minimum that remained in force until 1950, when it was increased to 75% of the male basic wage. Higgins’ precedent was followed in the state jurisdictions. (90)

Higgins arrived at the 35s. figure by a fine reduction of the claim for the women’s clothes, as he did not believe that the industry employers should ‘…pay for all that a girl may fancy.’ Higgins was satisfied that he had left the women with sufficient funds to represent ‘…the important social function of girls’ dress as a bulwark for self-respect; and it is for women who can afford it to show the way of simplicity and good taste.’ Demure self-respect was an attribute of both good citizenship and the frugal efficiency that Higgins generally enforced in his awarded rates. (91) Higgins was also keen to promote the ‘girls’ self-improvement. They should be able to afford books and newspapers, he observed, and other expenditure that reflected a full life of citizenship – he noted disapprovingly that one witness estimate provided ‘…nothing for union or lodge, nothing for amusements or church, nothing for stamps or journals or books, nothing for giving assistance to others.’ It was ‘significant’, he said, that for this witness ‘any little indulgence of vanity is at the sacrifice’ of more worthy pursuits. (92)

Despite his improving ambitions on behalf of the women, Higgins remained determined to discourage their participation in the workforce. ‘It is better for society’ if men were preferred in employment before women. Where ‘…it appeared that women would be preferred to men even if the wages were equal, I prescribed a lower rate for women’, presumably with the intention of encouraging predominately younger women towards marriage. (93) Three times in his judgment he defensively repeated Seebohm Rowntree’s assertion that a woman’s minimum rate should not be a family rate. (94) He even invoked ‘Mrs. Sydney Webb’s’ support of equal pay, arguing that the ‘only difference’ between her view and his judgments was the prescription of a lower rate for what he decided was ‘distinctively women’s work’, in turn based upon his ‘somewhat different point of view’ that ‘…women have not so much responsibilities for supporting a family as a man has.’ Beatrice Webb might have found Higgins qualifications a little more than minor distinctions from her own unambiguous demand for equal pay. (95)

Perversely, Higgins found that lower pay rates in the clothing trades were the cause of the ‘gradual disappearance’ of men from the industry, and decided to grant equal pay rates to women engaged in the pressing, cutting and trimming of dress coats – in order to aid in the defence of men ‘making a last stand’ in skilled tailoring. Higgins asked rhetorically, ‘Is it right that this Court should aid the gentle invaders?’ summoning a metaphor of passive aggression to confess his reluctance to admit women into his province. In the clothing trades Higgins found that he had to acknowledge the space women had already created for themselves; in other industries his precedents did much to stem their progress. (96)

Suppressing militancy
Higgins’ suppression of industrial militancy had specifically gender characteristics and reflected his nation building aims. Higgins believed that maintaining women in the home would exert a crucial influence on their husbands against strikes. Radicals might proclaim ‘socialism in our time’, he wrote in A New Province, but ‘in the meantime men and families must be fed and clothed and housed’. In Australia, relief of grievances over pay and conditions was available without strikes; ‘and the women of the homes reinforce the argument with the appeal, “Try the Courts first”’, or so Higgins imagined of a drama resolved by homely female sense. (97)

Higgins believed that working men were capable of being domesticated, partly as a result of the influence of wives in the home, reinforced by the living wage, and an instinctive reluctance to disturb home and work through industrial action – a reluctance that Higgins could take advantage of through patient instruction. In A New Province he described how he had been able to persuade building and pastoral industry workers of the need to accept reduced wages, or no wage increase, and without provoking industrial action, by carefully explaining the reasons for his decision – and by enlisting the support of union officials to reinforce the lesson amongst the men. ‘The truth is, I think, that if men secure the essentials of food, shelter, clothing &c., they are not so unreasonable as is sometimes supposed. They do not love strikes for the sake of strikes; and the great majority are generally quite willing to submit to reason if they feel that they are reasonably treated.’ (98)

If discipline at home failed, Higgins exercised his authority to promote conformity with his rulings. In the 1912 Fruitpickers case Higgins was faced with stark opposition to compulsory arbitration from the South Australian United Labourers’ Union. Higgins was able to work around the resistance of the Adelaide-based officials to make an award, dealing with the co-operative Rural Workers Union and local Renmark ULU officials. In his judgment he disparaged ‘“agitators”, misleading workers for their own ends.’ The ULU, like it or not, was a registered organisation under the Act, capable of being disciplined under its provisions, ‘and will be subject to the burden, as well as entitled to the benefit, of the award.’ Higgins observed that he was unaccustomed to having his decisions flouted; and he warned the ULU that if it engaged in industrial action after he made his award he would retaliate by lowering the minimum wage, a punishment that he would inflict only on the members of ‘the recalcitrant union.’ (99) Co-operative unions had a role to play in assisting Higgins to police his province, and he allowed them limited workplace access to facilitate industrial peace. In the 1919 Clothing Trades case he granted lunchtime access to Clothing Trades Union officials, happily conceding that this practice also worked to the employers benefit. ‘…I have frequently found that employers request union officers to use their influence with employees when trouble arises.’ (100)

In contrast to these co-operative tendencies, Higgins noted that the ULU’s opposition to arbitration was shared by ‘…certain employers; extremes meet.’ These extremists failed to understand the benefits Higgins offered employers and workers, and their shared duty to the national interest. In the Fruitpickers’ case Higgins noted that the industry’s founders, such as the Chaffey Brothers, had ‘…passed through the most trying crises, and surmounted desperate difficulties’; they did not withhold wages increases out of spite or greed. Higgins commended financial records submitted by the employers to the attention of the unions, so that they might see ‘…the forces impelling [the employers] to economy in wages.’ Indeed, Higgins felt that the ‘close’ negotiation of the case ‘…has brought the parties to see each other’s difficulties…and the proceedings end with a better mutual appreciation, such as befits practical and generous Australian people.’ (101) If only the parties would be guided by Higgins, he would lead them to discover their best and characteristically Australian instincts, expressed in service to the nation.

Conclusion
When Higgins died in January 1929 he was eulogised by Sir John Quick, fellow Victorian federation advocate and liberal lawyer. Quick had become a deputy president of the Commonwealth Arbitration Court in 1922, just after Higgins had resigned as president following protracted disagreement with the Hughes Government. (102) Quick’s eulogy revealed Higgins enduring influence on the court, repeating Higgins own lesson of pioneering struggle from A New Province: ‘He had to interpret and administer the new Act. He had no precedent to guide him. He had to give decisions which involved making precedents.’ Quick noted that in A New Province Higgins reduced these precedents to ‘a code’.

The rules so formulated have been useful for all persons having business before the Arbitration Court. Although none of them has been binding, they have always been cited in the Court and regarded with respect. Most of them have been found very convenient and useful as guides in the interpretation of the Act and the conduct of the business of the Court. (103)

To argue that Higgins left an enduring influence on his peers is not to suggest that he acted in unique or lofty isolation. Higgins had an extraordinary skill for clarifying the discrete tasks of compulsory arbitration and their relationship with nation-building, articulating a persuasive narrative of action to galvanise and lead his peers – on the bench and in public life generally. Higgin’s nation-building mission lends force to Eley’s contention that nationalism does not spontaneously spring to life, but requires ‘…hard, repeated, creative ideological and political efforts by intellectuals and nationalist leaderships.’ (104) George Anderson’s comprehensive 1929 study, Fixation of Wages in Australia, indicates Higgins success, by the time of his death, in framing an Australian discourse of compulsory arbitration, nowhere more so than in the entitlement of women to only a ‘secondary wage’. (105) By the 1930s Australian feminists were expressing a powerful objection to the Courts’ denial of equal pay, but it would be decades before they could overturn Higgins precedents - by challenging both the gender and nation-building assumptions that underwrote them. In the landmark equal pay cases of the 1970s it was argued that a women’s place was no longer in the home: ‘…our society is now geared to a participation of women at all levels.’ (106)

Higgins had a genuine sympathy with workers and strove to improve their working conditions and through that, their lives. Workers and their unions should, in a new nation, have a respected place. (107) Yet Higgins saw himself as a custodian of authority who could make concessions on behalf of the state or withhold them, regulating industrial practice and citizenship. Higgins offered workers state intervention through the minimum wage in exchange for their active consent to managerial discipline and bracing competition for jobs and promotion. While Higgins sought a more just Australia, he was also gripped by a vision of competitive enterprise - of taming the land to productive use through the vast irrigation schemes of the Riverina, or in Australian manufacturing competing against the world, as in McKay’s works. Higgins embraced the commonly accepted ideal of Australia Unlimited and this project required a disciplined working class - at work and in the home. (108) Higgins compulsory arbitration experiment reflected the class and gender contradictions of the Australian Settlement, drawing workers into the nation through the living wage while fueling discontent over unequal workplace power relations and gender alienation.

Footnotes
1. For the “Australian Settlement” and post-Federation nation building see Paul Kelly, The End of Certainty, Allen & Unwin Sydney 1992, Introduction; Bob Birrell, Federation, The Secret Story, Duffy & Snellgrove Sydney 2001 chs. 6&7.
2. The Australian Commonwealth Court of Conciliation and Arbitration’, address by Justice Higgins to the Oxford University Association for Philosophy, Politics and Economics, 14 June 1924. Pamphlet in State Library of New South Wales p.9. Hereafter referred to as “Oxford Address”.
3. 5 CAR (Commonwealth Arbitration Reports) 147.
4. Pateman quoted in Marilyn Lake, “Mission Impossible: How Men Gave Birth to the Australian Nation – Nationalism, Gender and Other Seminal Acts”, Gender & History, Vol.4 no.3 Autumn 1992 pp.311-12; Benedict Anderson, Imagined Communities, Verso London 1991.
5. Anne McClintock, Imperial Leather,Race, Gender and Sexuality in the Colonial Contest, Routledge NY 1995 pp.353-54; Catherine Hall, Keith McClelland and Jane Rendall, Defining the Victorian Nation, Cambridge University Press 2000 pp.39-40. For the debate on gender and nationalism see also Ida Blom, Karen Hagemann and Catherine Hall, Gendered Nations, Berg Oxford 2000.
6. Joan W. Scott, Gender and the Politics of History, Columbia University Press NY 1988 p.6
7. Geoff Eley, “Culture, Nation and Gender”, in Blom et. al., p.29.
8. Carole Pateman, The Sexual Contract, Polity Press 1988 pp.136-8.
9. Patricia Grimshaw, Marilyn Lake, Ann McGrath & Marian Quartly, Creating a Nation, Penguin Books 1996 pp.200-1; Edna Ryan and Anne Conlon, Gentle Invaders, Australian Women at Work, Penguin Books 1989 pp.95-96.
10. Laura Bennett, “Legal Intervention and the Female Workforce: The Australian Conciliation and Arbitration Court 1907-1921”, International Journal of the Sociology of Law, Vol.12 No.1 1984, pp.23-5.
11. Rae Frances, “Gender, Working Life and Federation”, in Mark Hearn and Greg Patmore (eds.), Working the Nation, Working Life and Federation 1890-1914, Pluto Press Australia 2001 p.39.
12. Anne McClintock, Imperial Leather, p.5; Lake, “Mission Impossible”; Hall et. al., Defining the Victorian Nation, pp.30-37; Catherine Hall (ed.), Cultures of Empire, A Reader, Manchester University Press 2000, “Introduction”.
13. Wells noted Macarthy’s inattention to gender, and his ‘common sense’ analysis of Harvester’s ‘civilising qualities.’ Andrew Wells, “State Regulation for a Moral Economy: Peter Macarthy and the Meaning of the Harvester Judgment”, Journal of Industrial Relations, September 1998 Vol.40 No.3; P. G. Macarthy, “The Harvester Judgement – An Historical Assessment”, Unpublished PhD Australian National University 1967; see also P. G. Macarthy, “Justice Higgins and the Harvester Judgement”, in Jill Roe (ed.) Social Policy in Australia, Cassell Australia 1976; John Rickard, H. B. Higgins, The Rebel as Judge, Allen & Unwin 1984.
14. Sandra Cockfield, “McKay’s Harvester Works and the Continuation of Managerial Control”, Journal of Industrial Relations, September 1998 Vol.40 No.3; Charles Fahey and John Lack, “‘A Kind of Elysium where nobody has anything to do’: H. B. Higgins, H. V. McKay and the Agricultural Implement Makers, 1901-26”, Labour History, No. 80 May 2001.
15. Anne McClintock, Imperial Leather, p.11.
16. H. B. Higgins, A New Province for Law and Order, Dawsons of Pall Mall London 1968 p.35.
17. ibid., p.38.
18. H. B. Higgins, “A New Province for Law and Order”, Harvard Law Review November 1915 (reprinted as a pamphlet by the Australian Government Printer, copy in SLNSW); incorporated as the first chapter of the expanded New Province in 1922. Dawson’s of Pall Mall reprinted the 1922 book in 1968 and is the edition cited in all references in this article.
19. ibid., p.v.
20. ibid., p.vi.
21. Stuart Macintyre, A Colonial Liberalism, The Lost World of Three Victorian Visionaries, Oxford University Press Melbourne 1991 pp.12-15.
22. John Rickard, H.B. Higgins, The Rebel as Judge, Allen & Unwin 1984 pp.64-65, 108-114; Macarthy, “Harvester – An Historical Assessment”, pp.3-6.
23. Rickard, pp.55, 88-89; Macintyre, A Colonial Liberalism, Ch.2, pp.203, 207-8.
24. Higgins to Deakin, 24 April 1904 Deakin papers MS1540/15/361 National Library of Australia.
25. Higgins to Deakin, 14 October 1906 Deakin papers MS1540/15/3431.
26. As Olssen and Richardson argue, prior to 1907 the New Zealand Arbitration Court simply gave ‘…formal recognition to current wage rates and working conditions’. Erik Olssen and Len Richardson, “The New Zealand Labour Movement, 1880-1920”, in Eric Fry (ed.), Common Cause, Essays in Australian and New Zealand Labour History, Allen & Unwin/Port Nicholson Press Sydney/Wellington 1986 p.6; James Holt, Compulsory Arbitration in New Zealand, Auckland University Press Auckland 1986 pp.70-1, 98-101, 105-107. For the nature and development of the Australasian systems see Richard Mitchell, “State Systems of Conciliation and Arbitration: the legal origins of the Australasian model”, in Stuart Macintyre and Richard Mitchell (eds.), Foundations of Arbitration, the Origins and Effects of State Compulsory Arbitration 1890-1914, Oxford University Press Melbourne 1989; Greg Patmore, Australian Labour History, Longman Cheshire Melbourne 1991 pp.113, 119.
27. A New Province, pp.6-13; editor Harvard Law Review to Higgins, 30 September 1914, 13 April & 26 August 1915, Higgins Papers MS1057 items 223, 233 & 238 National Library of Australia.
28. 2 CAR p.2
29. Polkinghorne quoted in Brian Roberts, Biographical Research, Open University Press UK 2002 p.117
30. Margaret R. Somers, “Deconstructing and Reconstructing Class Formation Theory: Narrativity, Relational Analysis, and Social Theory” in John R. Hall (ed.), Reworking Class, Cornell University Press 1997 p.85.
31. A New Province, p.6.
32. 2 CAR 2; Transcript of Proceedings of the application of H.V. McKay in the matter of the Excise Tariff Act 1906 C2274 National Archives of Australia (NAA) p.58.
33. Macarthy, “Harvester – An Historical Assessment”, p.8.
34. Oxford Address, p.9.
35. A New Province, pp.3-4.
36. Harvester Transcript of Proceedings, pp.439-441, 464, 469.
37. Rickard p.173
38. 2 CAR 5-7.
39. Macarthy, “Justice Higgins and the Harvester Judgement”, pp.49, 52.
40. NSW Industrial Arbitration Reports Vol.4 1905 p.309; Andrew Frazer, “Charles Gilbert Heydon”, in Greg Patmore (ed.), Laying the Foundations of Industrial Justice, the Presidents of the Industrial Relations Commission of NSW, 1902-1998, Federation Press Sydney 2003 pp.84-6.
41. Sydney Morning Herald, 9 November 1907.
42. Harvester Transcript of Proceedings, p.469.
43. Fahey and Lack, pp.105-6.
44. Bulletin, 5 December 1907.
45. Worker (Sydney), 14 November 1907; H.H. Champion to Higgins, 9 November 1907 Higgins papers MS1057/149
46. Higgins to Deakin 22 November 1907 Deakin Papers MS1540/15/3443.
47. 2 CAR 17-18.
48. 2 CAR 17.
49. 2 CAR 4-5.
50. Cockfield, p.385.
51. Sections 85 & 86 placed restrictions on the publication of trades secrets and records, but did not restrict court access. Commonwealth Conciliation and Arbitration Act 1904 pt.VII s.85-6.
52. 2 CAR 14.
53. Cockfield, pp.387-88. Fahey and Lack have taken issue with aspects of Cockfield’s analysis of McKay’s works in the post-Harvester period, arguing that some workers benefited from McKay’s ‘scientific management’ strategies (p.116).
54. A New Province, p.4.
55. ibid., p.5.
56. Macarthy, “Harvester – An Historical Assessment”, pp.28-9, 39; Cockfield, pp.383-384.
57. Rickard, p.175.
58. Macarthy, “Harvester – An Historical Assessment”, p.14; Rickard, pp.185-93; Fahey & Lack, p.105.
59. 3 CAR 32; Bradon Ellem and John Shields, “Making the ‘Gibraltar of Unionism’: Union Organising and Peak Union Agency in Broken Hill, 1886-1930”, Labour History No.83 November 2002, p.72; A New Province, p.143.
60. Cockfield, p.400; David Plowman, “Forced March: the Employers and Arbitration”, in Macintyre and Mitchell, Foundations of Arbitration.
61. A New Province, p.13; 4 CAR 18
62. ibid.
63. ibid., 15-18.
i64. bid., 20-1.
65. ibid., 33-43.
66. Patmore, p.147; B. Fraser & A. Atkinson (ed.s), The Macquarie Encyclopedia of Australian Events, Macquarie Library 1997 pp.335-6.
67. A New Province, pp.21-2.
68. 4 CAR 18.
69. 5 CAR 25.
70. Patmore, p.169.
71. 6 CAR 70.
72. ibid., 71.
73. ibid., 72.
74. ibid., 77.
75. ibid., 65, 76.
76. ibid., 72; 13 CAR 701.
77. Transcript of Proceeedings in 19 of 1911 Rural Workers Union and others and the Australian Dried Fruits Association, Commonwealth Arbitration Court, Vol.1 pp. 180-190 NAA B1958/2
78. 6 CAR 75.
79. A New Province, p.11; for the contemporary context and enduring influence of Higgins’ decisions re paid women’s work see Frances, “Gender, Working Life and Federation”.
80. 8 CAR 375-76; Pateman, p.138.
81. Oxford Address, p.6.
82. Ellem and Shields, “Making the ‘Gibraltar of Unionism’, p.76.
83. 13 CAR 709-11.
84. Bennett, pp.31-4.
85. ibid., 711
86. McClintock, Imperial Leather, p.5
87. Marilyn Lake, “White Man’s Country, the Trans-National History of a National Project”, Australian Historical Studies, No.122 October 2003
88. Marilyn Lake, “On being a white man, Australia, circa 1900”, in Hsu-Ming Teo and Richard White, Cultural History in 88. Australia, University of New South Wales Press Sydney 2003
Commonwealth Parliamentary Debates, 6 September 1901 pp.4657-8.
89. Patmore, pp.170-6.
90. 13 CAR 691, 695.
91. ibid., 693-4.
92. ibid., 701-2.
93. ibid., 692, 701, 704.
94. ibid., 703-4.
95. ibid., 701.
96. A New Province, p.148.
97. ibid., pp.30-1.
98. 6 CAR 73, 78-9.
99. 13 CAR 712-13.
100. 6 CAR 76-78.
101. A New Province, pp.172-76; Rickard, pp.252-57.
102. Melbourne Herald, 14 January 1929.
103. Eley, “Culture, Nation and Gender”, p.30.
104. George Anderson, Fixation of Wages in Australia, MacMillan & Co., 1929, Ch.XIX.
105. Grimshaw et. al., p.302; Ryan & Conlon, pp.121-2.
106. Rickard, pp.177-9.
107. Stuart Macintyre, The Oxford History of Australia, Vol.4 Oxford University Press 1986 p.200

* Mark Hearn Post-Doctoral Research Fellow,
Work and Organisational Studies,
University of Sydney.

Copyright. Do not cite without the permission of the author. m.hearn@econ.usyd.edu.au

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