Page:Harvard Law Review Volume 32.djvu/934

898 HARVARD LAW REVIEW culty. In order to determine under what, if any, circumstances the power of adjustment which a court may legally possess should be exercised, speaking very generally, regard should be paid to the date of the regulation before the court, the margin of discrepancies be- tween the old and the new standard and the financial outlook and general conditions of the industry under consideration. To be more precise, it is necessary to distinguish between the living and the secondary wage. While reasons of national health and efficiency may be urged in favor of wholesale adjustments, the cogency of such reasons has a special claim to consideration where the living wage is involved. On an application to vary an award, subject to any power which the court might have to dismiss the case or to order a conference of the parties, the living wage, unless challenged (together with argu- ment or evidence in favor of such challenge) must be awarded. The duty of the South Australian court is never to award less than the Hving wage. (Special provision is made with respect to aged, slow, or infirm workers.) With regard, however, to the secondary wage, this being a matter of policy, and there being no legislative direc- tion to the court, it appears to me that the presumption is unfavor- able to adjustments, and that the burden of proving the existence of very special reasons for a complete adjustment (or, at least, of establishing a strong prima facie case) rests with the party seeking to reopen the award. Needless to say, the "special reasons" must outweigh, in the particular case, the general reasons which I have previously stated against the reopening of awards. The secondary wage, it must be noted, does not threaten the subsistence of the worker, at any rate to the extent to which that subsistence is threatened where an increase in the cost of living makes a pre- existing estimate of the living wage obsolete. I have frequently referred to the possibility of a statutory direc- tion authorizing complete adjustment of existing awards. I feel that I ought to point out, however, that such a direction would be unlikely of itself, and in the absence of increased production, to insure an enduring material benefit to the workers as a class. In a highly protective community, it would tend to inflate prices. De- spite the existence of profiteering by some business concerns it remains unfortunately true that the extent to which profits may contribute to enhance wages is limited, if we take industry in the