Cattle Industry Case 1966
Aboriginal Stockmen's Case
(1966) 113 CAR 651, Kirby CJ, President, Moore J, Taylor Senr C, 7 March 1966
In this decision the Commonwealth Conciliation and Arbitration Commission decided to remove the exemption of Aboriginal employees from an award. This led to the removal of all such exemptions from federal awards. The result was that one award rate applied to all employees, whether Aboriginal or not. The system of different award rates for men and women, however, continued until 1972. Many question whether or not the Aboriginal Stockmen’s decision led to greater unemployment of Aboriginal people, but few would argue that a system of race-based award rates should continue.
The North Australian Workers’ Union applied to vary the Cattle Station Industry (Northern Territory) Award 1951 to remove Aborigines from the class of exempted employees. It was estimated that the claim would affect over one thousand persons working on cattle stations in the Northern Territory.
The Commission was mindful of its limited role:
It is not a Government, nor does it have the powers and knowledge of a Government in the field of aboriginal welfare. Anything we do must be limited to our jurisdiction. Although what we do in the exercise of our powers may result in social changes, and may result in aborigines moving from one kind of life to another, we are not social engineers nor can we deal with the whole spectrum of aboriginal life. We can do no more than to attempt to achieve a just result in an industrial situation. We will not ignore the consequences of our acts, including what may happen to aborigines employed on stations, but we cannot attempt to mould a policy of social welfare for these people in the way a Government can. [p.656]
The dispute largely turned on the work value attributable to Aboriginal stockmen. The Court stated:
The employers repeatedly emphasised that their claim for classifications is based not on racial grounds but on work value. They say that the value of the work of many aborigines is less than that of whites mainly for cultural reasons and because of lack of education. There are from 20 to 25 per cent. of aborigines now employed on cattle stations to whom the employers are prepared to pay current Northern Territory award rates. The issues to be resolved relate to the remaining 75 to 80 per cent. There are irreconcilable differences between the union, the employers and the Commonwealth Government as to the industrial fate of this remainder. [p.653]
The normal standard of the Commission is that all adult male employees are entitled to a basic wage unless they are special cases such as slow workers. It is defined by section 33 as 'that wage, or that part of a wage, which is just and reasonable for an adult male, without regard to any circumstance pertaining to the work upon which, or the industry in which, he is employed'. The basic wage is payable to all adult male employees covered by federal award (other than some slow workers) irrespective of the value of their work. However, most workers receive in addition to the basic wage a secondary wage or margin for skill or special conditions of employment.
It is in the fixation of the secondary wage or margin that questions of skill arise. There are some employees who have no margin at all for skill and therefore receive only the basic wage, but they are few. In this award the general station-hand has no margin for skill, and the stockman has a 10s. margin, but it is at least possible that these rates, which have not been altered for some years, may need adjustment. The employers ask us to apply a work value test to the whole wage, including the basic wage, as distinct from the Commission's normal practice of looking at work value only in relation to the secondary wage. [p.656]
The Court equated the employers' request to that of a ‘slow workers'’ exception for a class of individuals. They noted that the slow workers' exception was traditionally for individuals, and that it would ‘be a big step to make a prescription for classes’.
The employers' case was that on an assessment of their work the Aborigines were not entitled to full award wages:
It was put to us that these aborigines are unable to work as well as whites because of cultural and tribal factors. In the first place they are, in the employers' submission, semi-tribalised and even in the union's submission they are not fully part of the white community. It was put to us by witness after witness that there are a number of factors which prevent most aborigines from working in the same way as white men. What was said by the witnesses was amplified by the anthropological material referred to later. In the first place, these aborigines do not understand the meaning of work in our sense. This is because before their contact with whites they were a hunting race who lived off the land and did not work in any way understood by us. They had no agricultural skills and no domesticated pastoral animals and the discipline and understanding of work which agriculture and pastoral activities involve were foreign to them. When whites began to set up the cattle stations in the Northern Territory the aborigines remained on their lands now taken over by the stations and instead of hunting as a means of obtaining food, they substituted the obtaining of rations from the station owner in return for doing a little work. The effort which the aborigine used to put into hunting for food was now put into working for food and just as the hunter did no more than was necessary to obtain sufficient food so also the aboriginal employee on the station did no more than was necessary to obtain sufficient rations. Linked with this is the fact that aboriginal society was not competitive in an economic sense. Moreover it was not an individualistic society in which the individual had ambitions and worked for himself. Within certain tribal patterns the aborigine shared the fruits of his hunting. Accordingly the idea of working for oneself with ambition to achieve some economic goal was foreign to aboriginal society. [p.658]
The Court accepted evidence that ‘tribal influences [were] gradually dying out’, however the overwhelming evidence was that ‘tribal influences are still quite active in aborigines on cattle stations’.
The Court was satisfied that the employers' response did not offend international law:
It was argued by the employers that because they are prepared to pay award wages to some aborigines but not others because of their incapacity for work there was no discrimination in the sense of that convention. With this we agree. [p.663]
The pastoralists advanced an argument that if Aboriginal workers were to be paid full award rates then it would cause ‘massive disemployment’, as they would prefer white labour. The Court held:
The pastoralists submitted that a decision which would have the effect of disemploying large numbers of aborigines would in reality bring to an end the employment of aborigines in the pastoral industry altogether. Although conscious that this is a possible result of our decision we do not think it probable. Even if implementation of the employers’ proposals led to the retention of all aborigines on cattle stations, the proposals have in them the germ of a second class work force. It is at least possible that for many years individual aborigines would remain in the categories suggested by the employers and this, together with isolation and distance, would impede rather than help assimilation or integration. The employers made it plain that, although the words used in their claim would permit it, they would not apply the lower paid categories to white employees. In the result the award would have special provisions which applied only to aborigines and which would tend to keep them economically depressed. We consider that overwhelming industrial justice requires us to put aboriginal employees in the Northern Territory on to the same basis as white employees. The law which prevails for white employees in this industry should also prevail for aborigines. [p.666]
The Court highlighted a possible solution:
It seems to us that if the slow workers’ clause were made simpler pastoralists might be able to apply for slow workers’ permits for individual employees ... within the normal concept of slow workers then the degree of disemployment could be less. [p.668]
The Court concluded:
The guiding principle must be to apply to aborigines the standards which the Commission applies to all others unless there are overwhelming reasons why this should not be done ... [the pastoralists] have not discharged the heavy burden of persuading us that we should depart from standards and principles which have been part of the Australian arbitration system since its inception. We do not flinch from the results of this decision which we consider is the only proper one to be made at this point in Australia's history. There must be one industrial law, similarly applied, to all Australians, aboriginal or not. [p.669]