Дело "Harvester": Основы австралийского трудового законодательства.

Australian labour law decision

Ex parte H. V. McKay, commonly referred to as the Harvester case, is a landmark Australian labour law decision of the Commonwealth Court of Conciliation and Arbitration. The case arose under the Excise Tariff Act 1906 which imposed an excise duty on goods manufactured in Australia, £6 in the case of a stripper harvester, however if a manufacturer paid "fair and reasonable" wages to its employees, it was excused from paying the excise duty. The Court therefore had to consider what was a "fair and reasonable" wage for the purpose of the act. H. B. Higgins declared that "fair and reasonable" wages for an unskilled male worker required a living wage that was sufficient for "a human being in a civilised community" to support a wife and three children in "frugal comfort", while a skilled worker should receive an additional margin for their skills, regardless of the employer's capacity to pay. While the High Court of Australia in 1908 held that the Excise Tariff Act 1906 was invalid in R v Barger, the judgment nevertheless continued to be the basis for the minimum wage system that extended to half of the Australian workforce in less than 20 years. The decision was credited as the foundation for the national minimum wage included in the Fair Work Act 2009. As well as national ramifications, the decision was of international significance.

McKay's was one of 112 applications by manufacturers of agricultural machinery in Victoria and his application was selected as a test case because the factory was one of the largest, and had the greatest number and variety of employees and because his application was strongly opposed by various unions. Other applicants were told that the Court, in dealing with their application, would be limited to the information obtained in McKay's hearing unless there was some exceptional circumstances. Several large manufacturers were represented in the hearing, but did not call any evidence. The hearing took place in Melbourne over 20 days between 7 October 1907 to 1 November 1907. Higgins ruled that remuneration "must be enough to support the wage earner in reasonable and frugal comfort." A 'fair and reasonable' minimum wage for unskilled workers of 7/ (7 shillings), which is around 70 cents, or 42/ per week. Later surveys showed that this minimum was adequate to provide subsistence. Higgins's judgment read as follows: The High Court further found a tax based on compliance with certain labour conditions which could differ from State to State was a discrimination within the meaning of section 51(ii) and a preference within the meaning of section 99.

The judgment dominated Australian economic life for the next 60 to 80 years. Higgins's 1907 Harvester decision was regarded as a benchmark in Australian labour law. Despite the High Court's reversal in R v Barger, Higgins regarded the minimum wage as sacrosanct and applied the Harvester reasoning to subsequent judgments in his career as president of the Conciliation and Arbitration Court. Conservative commentator Gerard Henderson was critical of the decision, describing it as a deeply flawed decision representing a failed policy that was strong on sentiment that failed to consider the ability of employers to pay nor acknowledged geographical differences in the cost of living.

Then, as now, the reaction to the Harvester decision was mixed. The Worker described it as a triumph of Equity and that it marked the beginning of an epoch, with the inclusion of the last phase of human life left outside the scope of law.

In response to the High Court decision, McKay stated "The Excise Act was declared to be ultra vires The Federal Parliament had gone beyond its powers, all the ingenuity and eloquence spent on the measure, all the litigation devoted to its practical enforcement, and all the elaborate conditions laid down by the Arbitration Court and by the Customs authorities, crumbled to nothing." In 1922, McKay wrote to Prime Minister Hughes on the subject of wages boards and collective bargaining, stating "I do not agree with the basic wage for the Commonwealth. In other parts of the world it is a minimum wage for the minimum man and a maximum wage for the maximum man each man according to his ability and capacity. God did not make men equal it is no use trying to pretend He did, or to make laws as though He did, or to pay people according to their requirements instead of according to their services."

The Court determined that a fair and reasonable wage was to be determined according to the needs of a male worker not according to the worker's value to the employer. What then was a fair and reasonable wage for a female worker? Higgins J considered this in 1912 in the Fruit pickers case, rejecting an application for equal pay for women, deciding that this would represent equal pay for unequal work. His Honour held that women should only be awarded the full male rate where there was the risk of cheap female labour displacing men, setting a common rate for fruit pickers of 1 shilling per hour. The work of packing at the factory was "essentially adapted for women with their superior deftness and the suppleness of fingers" and this apparently justified a lower minimum wage of 9 pence per hour, which would provide for the woman's food, shelter and clothing but not that of her family. The assumptions of a male bread winner and female domestic carer have been criticised as a deliberate policy of discouraging women in the paid workforce, reflecting a flawed understanding of work and care where the normative worker of the labour market is without responsibilities to care for others. It thus ensured the continuance of the women's inferior place in the paid work force, only entitled to equal wages if their work threatened the position of men.