Boot Trades Case

Updated time

Last updated

10 January 2017

Australian Boot Trade Employees Federation v. Whybrow & Co. and Others

(1909) 4 CAR 1, Higgins J, President, 19 November 1909


In this decision Justice Higgins of the Arbitration Court first attempted to deal with the question of apprenticeships. He was strongly of the view that apprenticeships should be encouraged, and set out training obligations in the award. The award was challenged, partly successfully, in the High Court by the employer, at a time when employer suspicion of the activities of the Court was at its height.

The Court in this case considered the current practice in relation to apprentice conditions within the boot trade:

The claim of the employees in these proceedings as to apprentices is, in effect, that there should be no boys employed unless apprenticed to learn some substantial portion of the work of a factory; that there should be no 'improvers'; that the number even of apprentices should be limited to one apprentice to every four journeymen; that the wages should be settled for each year of apprenticeship; and that the apprentice should be properly taught. [p.15]

The President considered the current concerns of the community in relation to apprenticeship:

I am convinced that as long as boy labour is unregulated, and so long as some provision is not made for adequate training of those who follow a trade, there cannot be any stable industrial peace. The view that the boys must be properly trained, and that, if they are to be properly trained, the system of 'improvers' must be abolished, receives important confirmation in the report of the Victorian Apprenticeship Conference, 17th July, 1907 ... At this conference a resolution was carried unanimously against improvers ... According to this report, the term 'improver' represents 'sometimes a youth, very often an adult, who has not gone through the complete course, or any course, of apprenticeship, who is not fully skilled and therefore not capable of earning the full wage, and apparently, from the age of some of them, never will be. It is quite certain that such a class threatens the permanent efficiency of the industry.' [p.17]

The President went on to examine implications for employers:

I conceive it to be my duty to leave every employer free to carry on his own 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; and that means, so long as he satisfies the essential human needs of his employees, and does not leave them under a sense of injustice. In the strain of competition, the pressure on the employer is often very great, and he ought to be free to choose his employees on their merits and according to his own exigencies, free to make use of new machines, of improved methods, of financial advantages, of advantages of locality, of superior knowledge — free in short, to put the utmost pressure on anything and everything, except human life. Unless there is to be industrial war at every turn, human life must not be treated in the game of competition as if it were the ball to be kicked. This, the most valuable asset of the State, must be protected, whatever else suffers. In this matter of boy labour, I should not think of forcing an employer to employ full journeymen to perform light tasks that can be performed equally well by boys. I recognise also that extreme specialization of functions leads to greater speed, and greater speed leads to greater output, and greater output means less expense per article, and greater success in competition. On the other hand, extreme specialization injures the boy in his manhood, and as a tradesman; and it is the cause of much industrial disturbance. [p.18]

The President considered the application of technical schools to the issue at hand:

I hope that I shall not be taken as presuming to dictate on a subject of which I am ignorant when I say that I see the solution of the problem is closely associating the factories with the technical schools. The boot trade is specially adapted for such association, for the factories seem to be all situated in or near the big cities. To be more definite, it does not seem impossible to frame a scheme under which no youths are to be employed until the age of 20 or 21 for more than half time; and on the condition that the boy work also at a technical school, learning the trade as a whole, and on its scientific side, with physical and other training. Leave the employer free to put the boy to any work that he chooses, if the boy’s father or guardian do not object. The boy should not get his certificate of competency as a tradesman unless he shows that he has gained the necessary practical experience at factories, and the necessary general training at the college. The certificate of competency, although a great aid in securing employment, would not be obligatory for employment at the trade; but the minimum wage would have to be paid with, perhaps, exceptions (carefully guarded) for aged, slow and infirm workers. The employer would be free to move the lad from task to task, free to dispense with his services if unfitted or insubordinate. I have mentioned this idea, not because I propose to incorporate it in my award, but to show that in making the award which I have to make I do not regard the award as final or satisfactory; and to intimate that if any application can be made to vary the award before the end of its term (under sec. 38) I shall favorably consider any practical proposal made on the lines which I have stated. [pp.20–21]

In relation to the wages payable to apprentices the President stated that:

I have adopted Mr Beeby's [counsel's] reasonable proposal that the scale should be higher in proportion towards the end of the term, when the lad becomes most profitable to the employer. This course may tend to prevent the device of supplanting journeymen working on or over the minimum wage by lads who are nearly as efficient, but receiving a much lower wage. Moreover the fact that the employer has to teach the apprentice, and has to pay him during slack times as well as busy times, must operate as a check upon undue and improper use of boy labour. [p.22]

The case was taken to the High Court for its opinion (10 CLR 266). The High Court found that The Court of Conciliation and Arbitration had no jurisdiction to fix wages for boys on the basis of age instead of the basis of experience. The President varied the award:

I propose to omit all references to a scale of wages for apprentices. But to secure the genuineness of contracts of apprenticeship, and as necessarily incident to the subject of the number of apprentices in proportion to journeymen, I shall specify the subjects any one of which shall be sufficient for a genuine apprenticeship deed, and also the form of the deed. It is a matter for deep regret that the regulation of the wages of apprentices must be left out of this award; but I am coerced by the order of the High Court. [p.38]

The President varied the award to include specific reference to:

the number of apprentices who may be employed in proportion to journeymen. This alteration is consequent on the sweeping away of the safeguards which I had provided by my age basis against the unfair use of boy labour. Under that basis, I provided for lower wages than demanded by the employees’ log during the earlier years of apprenticeship, and for higher wages during the last year or two; and I trusted to this device as enabling me to leave the employers a greater degree of freedom as to the number of apprentices. The claimants asked for one apprentice to four journeymen. I granted one to two journeymen. Now, as the result of the decision of the High Court, I feel that I ought to prescribe one apprentice to three journeymen. This is a very unsatisfactory substitute in several respects, as I have explained in my reasons for award. But I do not see any other course open to me. [p.43]