The legal antecedents of the workplace relations act
From the Plague to Reith
By PETER ERICSEN
In April-May 1998 the struggles of the Maritime Union of Australia against Patrick Stevedores brought legal issues to the attention of its supporters, and unionists everywhere. Picketing of the ports was very effective. The MUA also had some victories in the courts, and this has led many people to think the legal issues and tactics were decisive. In fact, workers can only win in law what they are capable of winning in struggle. But that doesn’t mean it’s not important to know the law. Law is a major feature of the conditions in which unions live and fight.
Law is both a stick and a carrot. On the one hand, demonstrators and organisers are frequently hauled before the criminal courts. And many forms of civil litigation, such as slander suits, can be against unions and political organisations. On the other hand, there are sweeteners on the legal pill. There are a range of alleged legal remedies to discrimination, unfair dismissal, immigration restriction, etc. Lawsuits in pursuit of these remedies often distract from political struggles over these issues. Much to the annoyance of workplace militants, legal fetishism complements electoral fetishism. This article provides some historical background to the laws presently affecting trade unionism.
1. Ancient History
There has never been a free market in labour. For the last 650 years, laws have regulated the conditions under which workers sell their skins to employers.
Legislation controlling wage labour started in England in 1349. A plague swept Europe in 1348 and killed off one third of the labouring population. Fields were left unplowed and unharvested. Handicraft production in villages and towns shut down. It was a social crisis of the first order. And the reaction of the English government? It banned wage increases.
The few wage workers left standing knew the laws of supply and demand. They thought that they were worth more money. But the Reiths and Howards of the day enacted the first Statute of Labourers (1349). It set a working day of 14 hours, prohibited wages of "more than used to be paid", and forbade workers from resigning their jobs, on pain of criminal penalties. Fourteen hours!
The penalties were imposed in a discriminatory pattern that is still with us today: the worker who accepted higher wages was penalised twice as much as the boss who paid higher wages. Subsequent Statutes of Labourers were in similar vein. A Statute of Labourers of 1360 authorised bosses to flog disobedient employees.
Under the English Tudor Kings (Henry VII 1485-1509, Henry VIII 1509-1547, and Elizabeth I 1558-1603) there were statutes setting hours and wages. There were also statutes making it a crime to not work for a boss, lord, or guild master. Under these laws, vagabonds and beggars were imprisoned, mutilated (their ears were cut off), and dragooned to work as galley slaves.
(These statutes were in part due to the personal whims of the Kings who signed them into law. However they were primarily the creation of deeper and impersonal social forces. The Tudor period is the beginning of the capitalist era, which started in England. Capitalism today is an international political-economic system, based on the domination of wage labour by competitive capital. However it is a comparatively young historical development.
Class society has been around for thousands of years, but our peculiarly capitalist form of class society has dominated human life only during the last 400 years - only the most recent chapter human history. Capitalism won domination only after revolutions, regicide, robbery of the peasantry in Europe, and invasions, pillage and genocide in Africa, Asia, the Americas, and the Pacific - all very violent processes which separated the peasants and artisans from the land and other forces of production, concentrated these forces in the control of a privileged capitalist minority, and divided all production between competing capitalist units.
Under capitalism, waged labour in the employ of competitive capital becomes the main source of profit and wealth for the ruling class. However, no one ever voted to become a wage earner in the service of capital. Peasants, wanderers and artisans were induced to work for wages only by terror, by being driven from the land, by being subjected to poll taxes, and by forcible conscription.
Which brings us back to the Tudors. The Tudor legislation was part of the process of forcibly creating a wage-earning working class. Work or be whipped. Workers were also affected by criminal laws directed specifically at servants. One of these laws is still in the NSW Crimes Act: Larceny As A Servant. If you steal from a stranger, you could get 1 year in prison. Steal "as a servant" from your boss, you could get 10 years.
There were two important features about these laws. Firstly, they always defined a maximum wage, never a minimum. Secondly, they were unconditionally hostile to any attempt by wage workers to increase their meagre living standards, whether individually or collectively. As the song says, philosophers and sages have been dreaming down the ages how to make the working classes work more hours for lesser wages. There were laws holding down wages for hundreds of years before there were any trade unions trying to hold them up.
2. Modern History Begins - the Combination Act of 1799
Throughout the period from 1350 to the 1600s, capitalism wasn't fully established in England. Wage earners comprised only a small proportion of the labouring classes. Full blown capitalism came to England in the early 1700s, and took off with the industrial revolution from the 1750's onwards.
In the modern capitalist era there begins law affecting not just wages and hours, but also trade unions in general. The first such legislation in Britain was the Combination Act of 1799. From then, this history applies to Australia. By this time, the English and Scottish capitalists had formed a partnership known as Great Britain for the objective of looting the world. They had already stolen vast tracts of Australia from the Aborigines. Consequently, their Combination Act was also law in the Australian colonies. The full title of the Act aptly sums it up: "An Act to Prevent Unlawful Combinations Amongst Journeymen to Raise Wages".
Under this Act, "unlawful combinations" - unions - were illegal. Full stop. Anyone who joins can be punished by three months in jail including two months hard labour. All the moneys of an "Unlawful Combination" are liable to be confiscated. Something is not criminalised unless it is happening. Unions were being formed at this time. So what is a "Journeyman" and what is a union?
Journeyman is an old term for a day labourer, or worker for short. Why did workers form unions? Frederick Engels explained in 1844: "Unions are the first step by workers to prevent competition between workers".
Competition. That thing still dominates political life. Capitalism is driven by competition between rival capitalists. Ever since Thomas Hobbes (1586-1679), bourgeois think tanks have argued that men (sic) are "by nature" competitive. The ideologues of capitalism still deliver daily sermons that we (sic) must remain competitive in the global economy. To be uncompetitive is to die. Any government policy that would make "our industries" uncompetitive is out of the question. NSW Attorney General Shaw says NSW will not insure workers against the loss of entitlements if their employers go bust; this would make NSW industry uncompetitive. BHP says in December 1999 that individual contracts for the Pilbara workplace are necessary to "improve competition". News Ltd says the government’s digital TV policy is "anti competitive". In March 2000 Telstra says it must shed 10,000 jobs because of increased competition.
The main form of competition between workers is price competition - undercutting each other in the wage market. Unions resist this competition. For example, in 1801 the Society of Journeymen Millwrights adopted rules including:
"Article 4: ... members of this society shall not work for any master ... from this date 6 April 1801 except they receive 6 shillings 3d per day...
Article 6: Any man going to work under the advanced wages shall be fined 9d per day, for the time worked under the said wages ... the money to be paid into the society's funds, which is established for the support of superannuated and infirm mill-wrights who may become the objects of our charity."
Note that Article 4 prevents price cutting by setting a minimum wage, and Article 6 establishes a welfare fund. The early British unions were formed also for the purpose of pooling resources for the welfare of infirm members. The welfare purpose was often overemphasised to deflect prosecutions under the Combination Acts. We are not an unlawful combination, we are a "friendly society".
There were other methods of the preventing wage-cutting. Some unionists, instead of individually refusing to work for low wages, collectively refused. One out all out. This was known as striking sail, or simply striking. Usually, nothing gets up the nose of a wage-cutter more than the sight of workers downing tools and wandering out the gate. But unionists have also developed other methods of struggle, sometimes producing the same effect - including overtime bans, overtime bans, go slows, work to rules, wildcats, occupations, boycotts, consumer campaigns, legal suits, etc.
For example in the 1930s, some industrial workers in the USA developed a tactic which the bosses tried to demonise on racist grounds. Referring to the national origin of many of the workers, bosses called it "the Polish Disease". But it is better known as "the sit down strike". Another example is the MUA struggle in April-May 1998. The wharfies weren’t on strike; they were locked out. They fought back with picket lines, solidarity campaigns and peaceful assemblies.
The unions’ ideal was, and still is, the opposite of competition: solidarity. The unions’ tactics have varied, but usually around one theme: workers deciding when and how they will work, produce, and consume, rather than simply doing as they are told. American capitalist and union-hater Henry Ford once complained: "how come every time I want a pair of hands I get a human being?". The answer is that, as the sticker says, every strike is a fight for human dignity. And so are many other forms of union struggle.
(There are other forms of competition between workers, beside price competition. E.g. the bullring in the 1930s. Wharfies would crowd around the dock gates each start of shift, and the foreman would come out and say: I want you, you and you, the rest can go home. Those wharfies were forced to compete with each other for jobs, to suck up to the foremen, etc. But the Waterside Workers Federation put an end to that sort of competition, and won a wharfies’ roster.)
The Combination Acts were repealed in 1825. By then the British ruling class had realised that it could not rule in Britain unless its rule had some consent from the working classes. Unconditional legal hostility stood in the way of winning this consent.
3. After the Combination Acts
After 1825, however, British and Australian unions were still harassed by criminal prosecutions. Courts would rule that trade unions were illegal organisations because they were "combinations for the restraint of trade". Or their activities were ruled illegal because when they recruited new members they were "administering an illegal oath" (a crime under an 18th century law against naval mutinies).
This law had been applied in 1811 to hang or deport 24 Luddites (who didn’t form a conventional union, but were damned good at organising an underground movement of textile workers in the English midlands who physically fought job-shedding and wage-cutting mechanisation). It continued to be applied after 1825. In 1834, 6 Dorchester farm labourers, now known as the Tolpuddle Martyrs, were convicted of "administering an illegal oath" and deported to Tasmania. The British ideals of free trade never included freedom to organise.
There was a movement in defence of the Tolpuddle Martyrs. Due to its pressure, parliament called off the dogs, and for several decades the criminal prosecution of unions eased off. The British state had discovered that it could live with the mainly skilled workers' unions, which would reliably deliver labour power to industry, provided they were paid a slight premium.
Conditions changed in the 1860's. The class struggle picked up. In 1860, English trade unionists founded the London Trades Council. In Germany in 1862 the first mass workers’ organisation was founded, the General Union of German Workers. In 1863 large meetings of British workers prevented the British government from entering the American Civil War on the side of the Southern Confederacy. In Poland in 1863 there was an insurrection against Russian rule. In France in 1864 strikes were legalised. Workers’ movements all over Europe were organising across national boundaries to prevent the import and export of scabs during strikes. In London in 1864 a meeting of international workers’ representatives formed the International Workingmen’s Association. In the next few years it recruited an individual membership of a few thousand, and an affiliate membership about ten times larger - with affiliations from all over Europe and also from as far afield as the USA and New Zealand.
In this period, the law continued to attack individual unionists, usually by charging picketers with assault, but it no longer attacked unions as such. Unions were a fact of capitalist life. They could not be eradicated. But the lawmakers wanted them to be domesticated. At the same time, the unions had reason for wanting not only legal toleration, but also legal recognition. They wanted not just the right to exist, but also the right to sue.
This reason was illustrated by the famous case of Hornby v Close (1867). Hornby, a Boilermakers’ Society branch secretary, sued Close, a trustee of the union, for the return of £28 of union funds which Close had pinched. The Society was registered under the Friendly Societies Act, and should have been entitled to judicial protection of its property. But the local court and three appeal courts examined the Society’s rules and decided it was really a union, an "illegal organisation in restraint of trade". The courts told Hornby to sod off: your union is an illegal organisation; if you get robbed the legal system won’t do anything about it.
"Property is nine tenths of the law", they say. It is not true. There is nothing sacred about union funds, in the eyes of the law.
At this stage the Courts were coping with unions by pretending they weren't there. However, another department of state, the British Parliament, was conducting enquiries into "the labour question". Many union leaders complained to these inquiries about Hornby v Close. One inquiry made recommendations which led to the Trade Union Act of 1871.
4. The Trade Union Act of 1871 - Decriminalisation of Trade Unions
By 1871 the British State had dropped the idea of nipping unions in the bud. It was looking for some way of domesticating them. If it was going to tame the union beast, it needed to know who were union members, who were union officers, what were the rules of the union, where the union funds were kept, etc. In those days, that could be difficult. In 1811/12 the British State had found it difficult to suppress the Luddites because they were an underground organisation, and very good at keeping secrets; captured Luddites usually refused to grass their fellow members, even when tortured. The unions that were formed in the 1830's and 1840's often took oaths of secrecy and confidentiality from their members.
To get comprehensive information about the unions, spies and informers were not enough. The state needed to induce the unions to go public. The British State applied a mixture of carrot and stick, and enacted the Trade Union Act of 1871. This Act said, firstly: trade unions "are not, by reason only that they are in restraint of trade, unlawful, so as to make any member of the trade union liable to criminal proceedings for conspiracy". Then secondly: if you register your union, then the law will protect union property.
These were useful legal rights. They promised no more prosecutions of union organisers, and no more legally-tolerated theft of union funds. But there was a catch. The unions were required to submit annual accounts for scrutiny by the state. The Registrar of Trade Unions could cancel registration if he disapproved of the rules or the accounts. Moreover, the prosecutions continued in new forms, and the union funds were never totally safe, as we will see. Nevertheless, the carrot was attractive, and many unions registered.
Since 1871, the British law affecting trade unions has continued to be a mixture of carrot and stick. (A closer look at the carrots shows they have been over-rated. Usually, the large print gives and the small print takes. In the late 1990s, the benefits flowing to unions from registration under the industrial laws are precious few, but more on that in subject heading #7 below.)
In 1875 a stick was enacted in the form of new statutes which criminalised certain traditional actions of trade unions. The Conspiracy and Protection of Property Act (UK) of 1875 created a new offense of "besetting" (effective picketing). It also created new conspiracy offenses, which made it a crime for unionists to meet and plan an industrial campaign. For the next few decades the legal system controlled unionism by controlling particular individuals, or particular groups of unionists. They were easy to find; they were all on the register of unions.
Sometimes the criminal law was used - unionists were put in jail and fined, often for the crime of besetting. On other occasions the civil law was used against effective unionism. Under civil law, bosses could sue individual unionists for torts (meaning civil wrongs) such as "conspiracy to induce breach of contract" (picketing against scabs). The civil law restrains torts by injunctions (court orders to do or stop doing something), and punishes them by awarding damages (orders to pay money). To disobey an injunction is contempt of court, a criminal offense. Punishment: imprisonment until the prisoner has purged his contempt.
This British legal history matters because it is also Australian legal history. A NSW Trade Union Act was enacted in 1881, copied word for word from the British act. (See subject heading #6 below.) Laws against "besetting" were added to the NSW Crimes Act in 1929 - copied from the Conspiracy and Protection of Property Act 1875 (UK). They were aimed against striking timberworkers. In 1993 charges under these laws were laid against Paul Matters and Neville Hilton, Secretary of the South Coast Labor Council and Organiser for the AWU respectively.
English civil law also shapes Australian law. Civil law is part of the "common law" - the judge-made laws contained in thousands of Anglo-Australian court decisions, as distinct from parliament-made law contained in legislation. Common law injunctions and damages were to become a prominent feature of Australian labour law in the 1980s. (See subject headings #5 and # 21 below.) One particular English precedent remains fundamentally important in Australia: the Taff Vale decision of 1900.
5. Civil Laws Against Trade Unions - Entrenched by the Taff Vale Decision.
5.1. New Unionism
In 1888 a strike in Bryant and May matchworks (East London), mostly of women workers, triggered the start of the period of British "New Unionism". In 1889 a strike wave spread to gas workers (who struck for 8 hour day) and dockworkers, and then to food, transport, steel and electrical workers. In the 1890s there were major strikes by railworkers in Scotland, and millworkers in Bradford. Unskilled and previously unorganised workers got unionised.
In a few years after 1888, British unionisation increased 5-fold, mainly among the unskilled. This led to new legal developments. The state felt the need to discipline the new unions. It began a major new strategy: grabbing the unions’ funds.
5.2. The Taff Vale Decision
Until this case, legal theorists generally believed that you couldn't sue an entire union. You could sue some its members or officers, but you couldn't sue them all at once.
Companies were different. The Companies Act said that once a company was registered, it was a legal entity distinct from its shareholders and directors. The registration of a company created a new "legal person" . As the Act said, the company could own property, make contracts, and sue and be sued. A company could litigate just as freely as any flesh and blood person that could afford a lawyer.
But the Trade Union Act didn't say anything like that about unions. A union was just an association of people who registered their name and rules, and thus obtained protection of their collective property. A boss could definitely sue individual workers; this had been done hundreds of times since 1871. One idiot judge said that workers could be sued when their hands are chopped off by unguarded machinery, because this might damage the machine. But no statute said a union could, like a company, "sue and be sued".
However in 1900 the Taff Vale Railway Company sued the British Amalgamated Society of Railway Servants. A branch of the union was on strike for a wage increase. They picketed the Taff Vale Railway Company station at Cardiff, with great effect. Somewhere along the line the Company got the go-ahead to sue the union in a civil court, for damages and an injunction against picketing. (This occurred toward the end of the strike, when the union leadership was settling for less than it should have.)
Remember the older layers of law. Picketing was illegal (under the 1875 Act). It was a tort to induce a breach of contract (to stop scabs). To block a road was "besetting", which was both a crime and a civil wrong. Individual pickets had been hit by these laws in the past, but this was the first time an entire union had been sued. After all, it wouldn’t be easy put an entire union in jail for disobeying an injunction.
However, by 1900 many unions had accumulated significant funds, and other assets such as real estate. The Courts saw that this gave them a new stick with which to beat the unions. You can't put a union in jail but you can confiscate its funds. There is nothing sacred about this property.
The biggest wigs of the legal system, the Law Lords of the House of Lords, rewrote the legal theory and decided that a union’s registration under the Trade Union Act of 1871 meant it was liable to be sued at common law. My lords, the railway workers’ union was performing "improper acts in carrying out lawful purposes" (i.e. they were effectively picketing). One Lord Macnaughton was particularly unhappy that the unions had been saving money and spending it not just on welfare and funerals, but also on strike pay. So the Law Lords issued an injunction against the entire union, and recommended confiscation of the union’s funds if any picketers disobeyed.
After this decision, many other unions copped similar suits for damages and injunctions. Over the next four years, British courts ordered unions to pay damages totalling over £200,000. Big bucks in those days. An injury to one is an injury at all. The Taff Vale decision was over-ruled by British legislation in 1906. It has never been over-ruled in Australia, neither by courts nor by legislators. Dozens of ALP administrations have all failed to legislate the simple words "the decision in the Taff Vale case shall not apply". So the decision lives on as part of Australian common law. It was cited in 1989 by the Victorian Supreme Court Judge, Peter Murphy, when he screwed the Air Pilots' union for $6.3m.
5.3. Jurisprudence and the Taff Vale Decision
Jurists puzzle over the Taff Vale decision. They ask "what is the legal status of trade unions according to the Taff Vale case?; what was the basis for the decision in that case?". The answer is simple. Their status is whatever organised workers can win, or whatever the courts can get away with in the service of ruling class interests. The basis is the balance of the contending class forces at any given time. The same can be said of many subsequent "leading cases", e.g. the 1989 Air Pilots’ case.
The jurists think the law is a pile of law books, something more impersonal and consistent than a legal system. Actually, the legal system and the law are the same thing. You can use the terms interchangeably, depending upon whether you're looking at the whole structure, or at little parts of it.
Generally speaking, jurists make another mistake: they think that the law changes by purely internal processes that respond to "public opinion"; they tend to think law is cause, rather than effect. This is wrong. The law is more an effect than a cause of deeper changes in social life; it is more a part of the social superstructure than a part of society’s basic foundations.
5.4. Political Consequences of the Decision
The Taff Vale decision was another step in the process which separated the British trade union bureaucracy from the membership, encouraged that bureaucracy to hold different ideologies, and used that bureaucracy as a force for "law and order". As early as 1894, two conservative Fabian socialists, Sidney and Beatrice Webb, had observed:
"During these years we have watched a shift in leadership in the trade union world from the casual enthusiast and irresponsible agitator to a class of permanent salaried officers expressly chosen out the rank and file for their superior business capacity".
The Taff Vale decision made the "permanent salaried officers" more fearful of the "irresponsible agitators". For some union officials, some of life’s joys are administering the union’s assets, earning a relatively high salary, and enjoying the perks of office. When union assets are threatened, these joys are threatened. The railway union officials in the Taff Vale strike took that injunction far more seriously than did the rank and file members. What is a few days in the clink to a broke striker? When you've got nothing, you've got nothing to lose. But the union officials saw themselves as having a lot to lose, and they feared the courts' power to take it.
6. Australian Law - From Trade Union Act (1881) to Conciliation and Arbitration (1904)
We turn to White Australia. Again, it is informative to start with the earliest laws.
The British Dominion of Australia began as a penal settlement. It was a system of legalised brutality toward the labouring classes. From 1799 to 1825 the Combination Acts applied. After that, laws against "illegal oaths" applied. And the place was prison camp under martial law, anyway. The laws were brutal and hysterical. To speak Irish was a serious crime.
Nevertheless, in 1791 there was a strike by Australian convicts demanding daily rather than weekly rations. I don’t know what happened to them, but we do know that floggings and hangings were routine punishments in those days. Floggings were so routine that dogs would hang around the triangles in the hope of licking up some blood or meat. In 1810 one James Straiter, a shepherd, received 500 lashes for attempting to organise convicts to seek better wages and rations.
After 1871 the Australian Colonies enacted legislation copied directly from the British Trade Union Act. NSW enacted an identical Trade Union Act in 1881. This can be considered the birth of trade union law in Australia. The other Australian colonies soon followed. The Trade Union Acts of the Australian States are the bedrock upon which several layers of Australian legalisms were deposited. (They no longer exist under that name, but have been absorbed into the major state and federal industrial laws.)
Like in Britain, Australia also saw intensified class struggle in the 1890s. The world economy had expanded in the period from 1860 to 1890. The expansion came to an end with a world recession starting in 1890, which hit Australia. Wool was Australia's major export. As the song says, the price of wool was falling in 1891. It fell from one shilling per pound in the 1880's to 9½ pence per pound in 1893. The men who owned the acres said something must be done. They demanded wage cuts. This required an assault upon the organisations that would resist. Unionists did resist, with a series of strikes from 1890 to 1894.
The NSW maritime strike of 1890 lasted three months, and embraced seamen, waterside workers, miners, and shearers in all states. Then the QLD shearers’ strike in 1891 lasted four months. As the song says, "to trial at Rockhampton, the 13 men were brought. The Judge he had his orders, the squatters owned the Court". The judge cajoled the jury into convicting the 13 shearers for "conspiracy to intimidate". Off to the slammer with them. Many other strikers were prosecuted on similar charges, and usually with similar results.
Interestingly, the opposing slogans of the shearing strike were both in legal jargon. The bosses' slogan was "freedom of contract. The workers' slogan was "union contract".
The word freedom means nothing by itself. To find its meaning you must ask: freedom for whom from what to do what? The highest form of bourgeois freedom is freedom for capital from unions to hire, fire, and scab. This was the meaning of "freedom of contract". The workers' slogan meant a closed shop, and freedom to negotiate collectively.
In 1892, Broken Hill miners were locked out for 4 months. Other strikes continued until well into 1894. In 1894 the shearers struck again, on a larger scale than in 1891. One striker and one cop were shot. Sheds were burnt, and the Rodney paddleboat, found transporting scabs, was burnt. Most strikes were smashed by mobilisations of scabs and police. The criminal courts assisted the bosses, wherever necessary. Of the 100 unions affiliated to NSW Trades Hall in 1890, only 7 survived the strikes.
By the mid 1890s the bosses' victory was total, but it was won at great cost. The strikes had been long and bitter. They disrupted production and the flow of profits. They had created a generation of workers who believed from their own experiences that labour and capital had contradictory interests. The bosses wanted to avoid having to fight such a battle again. Many workers did also. In particular, they wanted to avoid being dragged back into the criminal courts. They formed Labour Electoral Leagues, in which they began the call for special non-criminal courts to adjudicate in industrial struggles.
(An interesting point this, which occurs repeatedly in the labour history of many countries: unionists developing a rational hatred of the police and military wings of the state, but not generalising this feeling to the state as a whole. The workers weren't "primitive" in the 1890's. The idea is still popular today, that some parts of the state can be your friend. To the extent that socialists had influence at this time, they seem to have refrained from opposing this folly. They were mostly "state-socialists", under the influence of the British Fabians, who thought that the state could be neutral in a dispute between labour and capital, and that socialism could be promoted by the strengthening of the state rather than its destruction.)
The bosses' fear of new outbreaks of strikes, and the workers' battle-weariness, combined to promote the federation of the Australian colonies into one Australian State, the so-called Commonwealth of Australia.
This was not the only factor behind Federation in 1900. The legal and political superstructure of any society arises upon its relations of production. The most basic factor driving the colonies toward political integration was the existence of single, relatively integrated and Australian-wide economy, with a capital and labour market that transcended colonial boundaries. Much of the Constitution commemorates this fact - e.g. s.92 provides that interstate trade shall be "absolutely free". New Zealand was a part of this economy, being closer by boat to Sydney than Perth was; it was therefore a candidate State, and is named as a State of Australia in the Australian Constitution.
Nevertheless, the strikes of the 1890's haunted the collective memory of the Constitutional Convention. They were also commemorated in the Constitution. Section 51xxxv attempted to solve the bosses' difficulties in fighting workers in several states simultaneously - as in the maritime strike, and the shearers’ strike. It gave the Federal Parliament power to legislate
"with respect to Conciliation and Arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state".
The Constitution however left criminal law in the hands of the States. So the criminal law of the State of NSW was applied against the strikers of 1917, 1928-30, etc.
7. Federal Legislation in Australia
In 1904 the Federal Labor Government acted upon the suggestion of s.51xxxv, and enacted the Arbitration Act (Commonwealth) 1904, which created the first Federal Arbitration Court. Thus the Labor Electoral Leagues (by then called the Australian Labor Party) got their special non-criminal courts, and the bosses got their mechanism for dealing with cross-state strikes.
The Arbitration Act's defined objective was to prevent "industrial disputes", which are defined to include "a situation which is likely to give rise to a dispute". To any sensible worker, such a situation exists permanently: it is called capitalism, a system of exploitation of waged labour by competing capitals. But that's not the "situation" the law is talking about. The law has a much narrower view of disputes.
When the law sets out to prevent what it calls disputes, it wants to prevent not exploitation, but workers' organised resistance to exploitation. The law thinks this resistance is something abnormal, like the third world state that dares to resist imperialist domination. The capitalist state has learned to live with unions, but it craves for unions to be entirely subordinated to the legal superstructure. Workers resisting exploitation, and demanding to be treated as humans and not machines, is a problem that union law seeks to weed out of the capitalist garden.
The Arbitration Act also declared as one of its objectives "to encourage representative bodies of employers and employees to register" with the Arbitration system. It offered, like the Trade Union Act, certain inducements in return for registration, which came with strings attached. This act was another mixture of carrot and stick.
The carrot: a registered union would be recognised by the Arbitration Court, and the Court would make orders or Awards to settle disputes, which would be legally enforceable against the boss. An Award is a set of minimum conditions of the employment contract in a particular industry, which specifies hours, wage rates, tea breaks, uniform allowances, union rights, sick leave entitlements, and other working conditions. Payment of less than the award-minimum wage is a criminal offense.
(The thrust of court interpretation of awards is that the terms of the award are incorporated into the contract of employment - see Gregory v Phillip Morris Ltd (1987) 77ALR 79, (1988) 80ALR455. Awards "create new rights as between master and servant superimposed on the common law incidents of their relationship" - R v Gough, ex parte AMIEU (1969) 122CLR237 at 246. Note that the "contract of employment" contained all sorts of rules and obligations borrowed more from the older law of the "master-servant relationship" than from the modern law of contract.)
The promise of a legally enforceable award is very attractive to a trade union. Workers’ unions try to minimise competition between workers by setting a minimum price upon labour. That is precisely what awards do. Once an award is in place, it sets the minimum price of labour power, and unionists don't have to worry about individual workers bidding down wages.
The Federal Arbitration Court’s 1907 Harvester Judgment ruled that an unskilled worker should receive a "living wage", being enough to support a spouse and three children. This produced a wage increase for many workers. It gave Arbitration a good reputation which the system has been living off ever since. From 1904 to 1914, Australian trade union membership expanded fourfold.
The stick: Another object of the Arbitration Act was to prevent strikes. How? Strikes were prohibited, absolutely, on pain of penalty. Unions could be fined for breaking an award. Alternatively, the Arbitration Court could order de-registration of a registered union that didn’t play according to the legal rules. A detailed history of "the penal powers" is given in J. Hutson’s book, Penal Colony to Penal Powers (first published by the Amalgamated Engineering Union in 1966), so we will repeat only a small part of this history.
Unions were expected to abandon strikes, go-slows, bans etc, and take up an alternative and approved form of activity. First, the union would serve a log of claims. Then the boss would say no way. Then the union, instead of taking industrial action, would inform the Arbitration Court that a "dispute" existed. The Court would then "conciliate and arbitrate", hear both sides, and then settle the matter with an "award". It could done as quickly as the paperwork was completed, and hopefully without causing any interruption to production and the flow of profit.
The option of preventing strikes by, say, prohibiting provocations such as rising prices, wage cutting, punitive sackings, or use of scabs, was apparently not considered by the legislators. But then again, the criminal law has always dealt with effects and not causes. If the boss puts on pressure, then workers are not permitted to withdraw their labour, they are permitted to hire a lawyer.
But even then the union’s lawyer wouldn't necessarily get a hearing. This award system contained some troublesome fine print, meaning that a court hearing was not automatic. Even after the boss had knocked back a log of claims, the Arbitration Court could decide that there was not really a "genuine" dispute, or that the dispute lacked an "inter-state" flavour. In that case it would refuse to give the union a hearing.
(These legal technicalities were invoked against the NSW coalminers in 1929/30 - see subject heading #10.4 below).
Moreover, these logs could roll both ways. The bosses could serve their own logs - as they did in the timber, stevedoring and mining industries in 1928/29, and at Robe River in the 1980s. They could obtain court-ordered wage cuts - as they did in 1931 when all Federal Awards were cut by 10%.
The awards that did increase wages often came at a price. The waterside workers’ first federal award was made conditional on the union amending its rules to give the rightwing Federal Council power to discipline its branches. "What these cases revealed", wrote historian Ian Turner, "was the domestication of the trade unions to the arbitration process".
Turner also related the story of a four month lockout in Broken Hill in 1909. The unions appealed to the Arbitration Court for an injunction against the employers, and it was granted. But Justice Higgins, the second Judge of the Arbitration Court and the most favourable ever to the trade union movement, warned that it probably would not be enforced. Later the High Court effectively threw it out. Turner concluded:
"Arbitration, the instrument which labour had created to ameliorate its condition and to secure its strength, was found to operate as a bludgeon against the unions when they aggressed, but to be ineffective against the employers when they were the offenders."
In the 1860's the Anglo-Australian legal system set out to domesticate unions. By the 1900's, the Australian legal system set out, with the Arbitration Act, to domesticate strikes. In 1931 the Federal Act's blanket prohibition on strikes was lifted. However the penal powers of arbitration were restored during WWII, strengthened by the Chifley Labor government after the 1949 coal strike, and further strengthened by Menzies’ Liberal Government in 1951. And the common law, including precedents such as the Taff Vale decision, continued to be part of common law in Australia.
The legal system became accustomed to unions, and sometimes accustomed to strikes when ample notice was given, but it never became accustomed to effective picketing or bans. Arbitration law has tried to distinguish between "informational picketing" (OK) and mass picketing (not OK). It still craves for unions to be completely subordinated to the legal superstructure. This is explicit in the terminology of arbitration legislation. It is also implicit in most judicial restatements of the common law. Mason J (adviser to Barwick CJ and Kerr G-G in 1975, and later Chief Justice of Australia) said in Sid Ross Agency P/L v Actors and Announcers Equity (1971)1NSWLR760:
"At common law, picketing is not necessarily a nuisance and unlawful as such, but it becomes so if it involves obstruction and besetting".
Summing up Hizzoner: Picketing is a crime by statute (s.545B) and a civil wrong if it works.
8. State Arbitration Law
There are two parallel systems of union law in Australia because of a constitutional-legal point. Federal Arbitration could arbitrate disputes which had a cross-border flavour ("industrial disputes extending beyond the limits of any one state"). A dispute which was wholly within one state was outside this Federal law. This remained within the legal provinces of the States.
Each of the Australian States therefore also has its own laws to prevent the dreaded "industrial disputes" which occurred only inside that state. In the early decades of the 20th century, four Australian State governments also enacted State Arbitration Acts. State parliaments created Industrial Arbitration tribunals in WA and NSW in 1901, then in QLD and South Australia in 1912. (Parliaments in Victoria and Tasmania created slightly different systems, with wages determined by "Wages Boards".)
The State industrial laws all contained penalties against strikes. And Federation did not inhibit each State’s power to enact their own criminal laws. The NSW State Government dealt with the 1917 general strike with the methods of the 1890's - arrests and repression by the criminal law, and the use of mass scabbery. However, the NSW Industrial Arbitration Act 1940 decriminalised one sort of dispute. This is worth mentioning because it is a precursor of the "protected industrial action" in the Workplace Relations Act (see ss.170ML-MU). Section 101 allowed a union to have a legal strike, providing it notified the Minister for Industrial Relations 14 days in advance - this allowed plenty of time to organise scabs, injunctions, and police. If there must be strikes, this is the sort of strike that the legal system can live with.
The details of State industrial laws have varied from State to State over the years, but they have generally followed the precedents set by Federal law. In each state, the "industrial dispute" which must be prevented is defined similarly to federal law, and includes "a situation that is likely to give rise to an industrial dispute".
Thus we now have parallel State and Federal systems of industrial law. These two systems create the phenomenon of state-registered and federally-registered unions (often the same bodies wearing different hats); state awards and federal awards; and - that delight of lawyers and other pedants - questions of federal-state "jurisdiction" and "demarcation".
The Australian Constitution makes Federal law superior to any inconsistent State law. Consequently, Federal Awards have tended to displace State Awards. Today, Federal awards cover about 65% of Australian workers. About 1.1m workers NSW are affected by state awards or state enterprise bargains, but a greater number work under Federal awards. (However, since 1997, the WRA is reducing the significance of Federal Awards, by replacing them with Agreements.)
It is boring to explore the question of where one jurisdiction finishes and another demarcation starts. These legal questions were employed to fog the vision of Electrical Trades Union members who fought a lockout by the South East Queensland Electricity Board (SEQEB) in 1985. The Electrical Trades Union leadership concentrated its energies not on organising solidarity, but upon a court action which sought to transfer Queensland members from a State award to a Federal award. The High Court of Australia delayed the court process long enough for the industrial heat to cool off, and then told the union's lawyers to piss off.
9. The Effects of Arbitration Law Upon Trade Unionism
Generally, the Commonwealth Arbitration Act, and the imitations in the States, were successful in their own terms. Strikes never ceased to occur, but militants did notice the dampening effect of Arbitration upon trade unionism. Starting as far back as 1908, the IWW paper Direct Action continually argued against legal action, and in favour of direct industrial action. In 1923 the Communist Party's paper argued that
"the policy of fighting, whether by strike, go slow, or boycott is generally better than no fight at all. This applies with particular force to Australia where the deadly apathy and inertia developed in the Arbitration Courts have sapped the vitality of working class organisation".
The Arbitration system had some success in rearranging the whole process of setting the price of labour power. Instead of a union controlling the supply of labour power to the boss and using this control as a market force, normally a union would approach the Arbitration Court and asks the court to set a price.
Not all unions played this game. Those that didn't were subject to the "Penal powers" of arbitration. During the Great Depression, many of their members were prosecuted under the criminal law.
10. 1928-32: Unions Get Flogged in the Depression
By the late 1920s, trade unionism had achieved very wide coverage of Australian workers. 3/5 male workers and 2/5 female workers were organised, up from 2/5 males and 1/12 females in 1912. However, the Great Depression was visibly approaching. Unemployment was rising, and profit rates were falling.
The Bruce-Page Nationalist federal government of Prime Minister Stanley Melbourne Bruce (a Fraser-type upperclass twit) planned attacks on living standards. In 1928 it enacted legal measures designed to weaken trade union resistance. These included amendments to the Arbitration Act which legalised lockouts, encouraged secret ballots, and stiffened up the penal provisions. Then direct assaults were launched against key unions.
10. 1. The Waterside Workers.
In September 1928 Arbitration Judge Beeby made a new waterside workers award. It required wharf labourers to attend two pickups per day, instead of one. This meant the wharfies would be required to make themselves available for work all day, but if no work was available, they would receive no pay.
On 10 September 1928, the starting date of the award, wharfie members of the Waterside Workers Federation (WWF) in Melbourne and Brisbane struck. On the following day the Bruce federal government promised criminal prosecutions. The wharfies stayed out, and within a few days they were joined by walkouts in Adelaide, Freemantle, Newcastle, Kembla, Bowen and Townsville. The next day the WWF was charged with the crime of inciting to strike (an offense under the Arbitration Act). On 22 September, the union was fined £1,000, and scabs were brought in. This seems to have scared the WWF leadership, but not all its members. They spread the strike, until there was an unofficial strike in 50 ports.
The Federal government was dead serious about escalating the fight. It supplemented the penal provisions of the Arbitration Act by enacting the Transport Workers Act 1928-29, requiring all wharfies to have a licence which could be revoked if they disobeyed "legal instructions". It also added anti-union provisions to the Crimes Act, authorising prosecutions of any union that interrupted an "essential service". This legal pressure helped wear the union down.
Most of the 50 ports gave in by October 1928. Only Melbourne stayed out. Some unionists had gone back and were working 2 ships, but 2,000 scabs were working 29 ships. On 2 November 1928, the Melbourne wharfies held a demonstration. Police fired upon it, killing 1 and wounding 3. In the following weeks the Melbourne wharfies went back, defeated. For years afterwards, there was no closed shop on wharves.
10.2. The Timberworkers
The wharfies’ strike was scarcely over when the Arbitration Court took on another group of workers - the timberworkers. In 1920 the 20,000-member Timberworkers Union had obtained an award which reduced standard weekly hours from 48 to 44. In 1922 the Full Court of the Arbitration Court varied this award by restoring the 48 hour week for some timberworkers. The union contested this through legal channels for some time, with inconclusive results.
On 13 January 1929, Arbitration Court Judge Lukin made a new award for timberworkers, which increased hours to a standard 48 for all timberworkers, cut wages 10% (despite a 5.7% increase in the cost of living), and increased the employment of youth at lower wages (likely to displace 2,000 men). This was definitely one of the worst awards in Australian history.
On 1 Feb 1929 timberworkers of NSW and Victoria struck. The bosses immediately sent in scabs. On 24 February 1929 the Federal government deliberately escalated the strike by launching prosecutions. Charges under the penal powers of Arbitration were laid against E. J. Holloway (Melbourne THC Secretary), W. J. King (Timberworkers Union secretary), W. Scanlon (Victorian TU State Secretary) and P. Eames (Victorian TU organiser). The Arbitration Court joined the attack, and fined the Timberworkers Union £1,000.
The ACTU was pushed into action because the government was treating it with disdain. On 25 Feb the ACTU resolved to boycott Arbitration Court, complaining about the re-constitution of the court and the strengthening of penal powers. The strike was longest and bitterest in Victoria and NSW.
The Federal government forced a secret ballot. 15,000 ballot papers were issued. In Sydney, timberworkers burnt their papers outside Trades Hall. 6,000 ballot papers were returned. Of these, 5,318 voted in favour of the strike. This was a bad result for the Federal government. So it tried another tactic. 39 timberworkers - skilled machinists - were charged under the penal provisions and ordered to return to work, and to fix the machines that 1,500 scabs were operating.
The machinists refused. And the Arbitration Court didn’t know what to do. Capitalism has never found out the magic formula to force skilled labour to work. You can force a slave to swing a mattock, but not a machinist to turn a delicate lathe. It’s too fragile. So the Federal government tried yet another tactic. Six strike leaders were arrested, and charged with conspiracy. They were acquitted by the jury.
So yet another switch of tactic. In NSW, a law against picketing (besetting, based on the English Conspiracy and Protection of Property Act 1875) was added to the NSW Crimes Act. Hundreds of picketers were arrested and charged with assaults on scabs. They were prosecuted before magistrates, who were less sympathetic than juries. Magistrates’ courts fined and imprisoned 32 timberworkers.
The timberworkers were starved back in December 1929.
10.3. The NSW Coalminers
In early 1929 the mineowners launched an attack on the coalminers. They took their cue from the Arbitration Court’s new Timberworkers Award. A few days after publication of this award, the Northern Colliery Proprietors’ Association of NSW demanded a 12% wagecut, and an end to stoppages and pit-top meetings. The Miners’ Federation refused.
On 15 February 1929 the mineowners gave notices of dismissal to miners in the 40 largest mines (mainly in northern-NSW, including the Hunter Valley). On 2 March 1929 they locked out 12,000 miners from 40 pits. As is the common practice in lockouts, they invited the miners to re-apply for jobs at 12% lower wages.
This time the Federal Government made a milder intervention, promising an enquiry into mining profits. The Miners’ Federation agreed, but the mineowners told the government to bugger off. The lockout continued through winter 1929. In September 1929 the NSW Nationalist government of Premier Bavin upped the ante, by promising to re-open Rothbury mine with scab labour. On 16 December the Bavin government opened the Rothbury mine. Scabs were led in, surrounded by hundreds of police armed with rifles. The Police fired upon picketing miners, wounding 7 and killing Norman Brown.
The impact of Rothbury jolted the miners into greater action. Miners in Wonthaggi (Victoria) & QLD struck. They set up a Labor Defence Army, and organised mass pickets and marches involving up to 7,000 men. At this stage, the Federal Arbitration Court intervened, and made two interim awards favouring the coalminers. However, each time the High Court invoked the legal fine print described in heading #7 above, and overturned the Arbitration Court. These two rulings are worth describing in legal terms.
I late December 1929 the Arbitration Court, faced with the fact that Victorian and QLD miners were out because their conditions were directly affected by the outcome of the struggle in NSW, found that the dispute was now an "interstate dispute". Pending a final decision, it made an interim award that "the conditions ... shall be those prevailing immediately prior to 2 March 1929 (the lockout)". After this award, the Wonthaggi and QLD miners returned. However, in January 1930 the High Court ruled that because the Wonthaggi and QLD miners had returned, there was no "interstate dispute". It declared the award "bad in law and void".
Days later, the Arbitration Court made another interim award restoring pre-lockout conditions. The miners’ union had served logs of claims upon employers in Victoria and QLD, which had been rejected. This again established an "interstate dispute". However in March 1930 the High Court also declared this award "bad in law and void", upon the basis that the dispute was not "genuine". It made "orders for prohibition absolute" against the learned trial judge. In other words, it told the Arbitration Court judge to pull his head in.
So much for arbitration ending the barbarity of the lockout. Federal Arbitration law, as defined by Australia’s highest court, was useless to the coalminers. It had served only to induce miners in Victoria and Queensland to return to work, on false pretenses. The lockout continued in NSW, until the coalminers were starved back in June 1930, on the mineowners’ terms.
By 1930, Labor was in power Federally, having been strongly supported in its election campaign by coalminers. Labor’s deputy leader, Ted Theodore, promised that Labor’s first action, if elected would be to open the mines on pre-lockout conditions. The miners should have kept their donations to themselves. The newly elected Scullin Labor government promptly announced that it had no constitutional power to intervene.
In January 1931 the Arbitration Court celebrated the defeats of the wharfies, the timberworkers, and the miners. With encouragement from the Scullin government, it cut the basic wage for all workers by 10%. The author of the 1907 Harvester Judgment, Judge Higgins, had said that the "living wage" principle was "sacrosanct". It wasn’t in the 1930's. State wage fixing systems followed the Federal system, and imposed similar wage cuts.
11. Registration and De-Registration
Given that arbitration law effectively prohibited strikes and other forms of class struggle at the point of production, and given that its awards (aside from the Harvester award, and other awards recording victories in the workplace) have tended to be fairly paltry, why have the more militant unions registered and stayed registered? Why do unions fear de-registration?
The reason is that mixture of carrot and stick. The carrot is access to arbitration, and consequently to legally-enforceable minimum award rates. Every unionist with eyes has read in their union journal the Good News headlines: "Your Union Has Won You An Extra $3/week by Skillful Advocacy of Your Case". It may not be enough money to clear the mortgage, but it sounds good.
The stick is the danger that a de-registered union may have its awards cancelled. And a registered bosses' union may be set up in its place. This danger is illustrated by the origin of the Australasian Society of Carpenters and Joiners.
The Building Workers Industrial Union (in the 1990s it was absorbed into the CFMEU) began as a federation of state branches that were all called "Societies of Carpenters and Joiners". In 1952 the BWIU (Federal) was de-registered. A small number of scabs then applied to register a new federal union called the Australasian Society of Carpenters and Joiners. The BWIU objected. They said that the ASCJA is pinching our name and members, and has very few members itself. Despite this objection, the Industrial Court said too bad; you’re not registered, we'll register someone else in your place. And so the ASCJA came into existence, with state sponsorship.
The ASCJA couldn't have been created without this state sponsorship - otherwise it would have had nothing to offer potential members. It was not going to win them through militant tactics, because it was a scab union. But it could promise them the benefits of arbitration - which are essentially flow-ons* of the gains won by unions that are prepared to use militant tactics.
(*The official justification for the Prices and Incomes Accord of 1983 included a theory that strong unionists made gains for themselves only, and left other workers behind; therefore strong unions should commit themselves to no strikes, so that all workers could benefit. This theory is merely a sophisticated version of the yellow press headlines about "greedy strikers". It is equally incorrect. The history of Australian wage movements up to 1983 clearly shows that when stronger unions make gains, they set new higher norms for wages and conditions, which other unions can then acquire with less effort. For example, metalworkers’ gains have usually flowed on to ironworkers; NSW building workers fought for better compensation entitlements in the 1970s, and won it for all NSW workers. The efforts of strong unions won annual holidays and long service leave for all workers.)
There formerly were dozens of scab unions in Australia. I suspect that the arbitration system, together with sweetheart deals with bosses, were the main reasons that they recruited and survived.
An informative conclusion to this story came 8 years later, in 1960, when the BWIU re-applied for federal registration. The ASCJA lodged an objection: you can't register them; they're troublemakers. Various employers' associations also objected: the ASCJ was all the workers needed; another union, particularly one that was Communist-dominated, would be superfluous. Moreover, the BWIU was Communist-dominated etc. Despite this, the judge deciding the case quoted with approval an interview with the BWIU Federal Secretary:
"Q: What are you views as an officer ... as to your obligations concerning strikes, including stopwork meetings, black bans, and so on?
A: My obligations as an officer would not be to initiate strikes and stopwork meetings. Should such things happen, I would endeavour to see that the strike was settled by negotiation. Should that fail ...[by] an application to the Commission. ... In regard to stopworks, my obligation would be to see that they did not happen again".
This Secretary was domesticated. The judge dismissed the objections of the ASCJ and the employers. The judicial arm of the state usually represents the employing class as a whole, not just parts of it. In 1960 the BWIU was welcomed back into the arbitration system.
Twenty-six years later the BWIU joined the poachers. In 1986/87 the entire BLF - Federal and State - was deregistered. The NSW government even passed a special Act for this purpose, the Industrial Arbitration Special Provisions Act 1984. This Act simply transferred the Industrial Commission’s de-registration power to the minister. Under s.3,
"where the minister certifies to the governor that the union has ... engaged in activities which are contrary to the public interest ... the registration of the union shall be cancelled ...".
The minister certified, and the registration was cancelled. The Victorian and Federal governments also passed special legislation, which kicked the BLF out of the arbitration system, and cancelled its awards.
Members of the deregistered BLF were poached or conscripted by the BWIU and other building unions. It fought on bravely, rediscovering old traditions of workplace organising, shop steward representation, and workplace bans. But it could not survive the haemorrhaging of its ranks, and state-sponsored scabbing. It finally collapsed.
12. Bureaucracy and Registration
Generally speaking, the officialdom of a union will be more enthusiastic about Arbitration than the rank and file.
Once the bureaucracy have risen to the surface and separated from the rank and file, the conservatising forces upon them are increased. They become surrounded by tertiary educated advisers and assistants. They spend long hours in negotiations with bosses, for whom they develop empathy and envy. And they are further conservatised by their particular fear of De Registration.
As officials of a registered union, the bureaucracy occupy a very prestigious position. Under the approving eye of the capitalist state, they are the sole distributing agents of the entire membership. They have prestige as chief negotiators in talks over the sale of labour power. They brief the lawyers and advocates, and they congratulate themselves with articles in union journals saying that "award campaigns" have won the membership an extra $3 per week.
(This prestigious position is upset when the rank and file move independently. Hence union officials often move toward outright hostility to any independent political action by trade unionists. Ben Chifley, ALP Prime Minister from 1945 to 1949, made his name in the union movement in the early 1900's as an advocate in Arbitration Courts for the AFULE, the train drivers’ union. According to his biographer Bennet, Chifley’s "thorough preparation for his work as a union negotiator and expert witness before industrial tribunals quickly won him a reputation as a good man to put the union's case". During the 1917 NSW near-general strike, Chifley "continually preached moderation and a strict adherence to the union's line, and despite strong opposition to the terms of settlement among the men who feared reprisals, it was his union branch that was amongst the first to return to work". As Prime Minister, Chifley threatened to send troops to scab on striking ironworkers in 1945, and did send the troops to scab on coalminers in 1949. However it would be wrong to say that he had forgotten his trade union origins. As a political animal and strike breaker he was true to his origins: he came not from the rank and file but from the law-loving bureaucracy.)
Once the union is de-registered, the importance of the bureaucracy’s position shrinks. They are no longer welcome in the courts. They can no longer sell the entire membership. In negotiations for the sale of labour power, the de-registered rank and file must tend to intervene in collective force. A section of the rank and file may even bypass the official and deal directly with a particular boss. De-registration is shark-infested water to the officials.
The legal system uses de-registration with caution. The Spanish Inquisition used torture, but not all the time. Often it was sufficient for the accused heretics "to be shown the weapons of torture", in order to send them to their knees admitting their sins and begging for forgiveness. The threat of de-registration can have a similar effect.
For most unions, that have spent their entire existence under the wing of Arbitration, de-registration is unthinkable. The Arbitration system has created within the union movement an officialdom and a way of thinking that knows no other mode of existence.
Most union journals contain illustrations of the point made in 1923 - Arbitration has sapped the vitality of the labour movement. Here is an example from the Independent Teacher Association's Newsmonth (of November 1982):
"the Industrial Commission exists to solve situations where all else has failed. This is where our power lies".
In the same edition, the Union secretary proposes a resolution for branch meetings-
"that this chapter condemns the decision of the Full Bench of the Industrial Commission not to grant leave to appeal in the ITA salaries case. ... We note our commitment to the due processes of conciliation and arbitration and our reluctance to take direct industrial action ... etc".
Not exactly inspiring stuff. A little condemnation is not going to change the Full Bench’s mind. But these are the habits born by decades of life within the arbitration system.
13. Are Industrial Courts better than Common Law Courts?
In 1956 the Arbitration Court was split into two bodies - the Conciliation & Arbitration Commission and the Commonwealth Industrial Court. The former made the awards, the latter enforced them. The direct descendants of these two bodies are the modern Industrial Relations Commission and the judges of the Federal Court who hear industrial law cases. These are changes of form rather than substance, which do not need examination. The substantial question is whether the specialist industrial courts are better than common law courts.
The Labor Electoral Leagues of the 1890's hoped that workers would get a fairer go in specialist courts. This hope has been dashed in two jurisdictions.
Firstly, unionised workers have continued to be dragged into other courts. They are prosecuted and sued under Trade Practices law, Essential Services law, criminal law, common law, etc. (See subject headings #16 & #17 below.)
Secondly, there is no fundamental difference between the industrial courts and the rest of the legal system. This is most obvious when you look at the judiciary. Most of the judges who compose these courts sit in both the Federal Court and the Industrial Relations Commission. Most of the time, the different courts are simply the same judges wearing different wigs.
Judges are mostly conservative, privileged, white males, but that is not the main issue. They are only cogs in the wheel of the legal system. Replacing the cogs with lawyers from different backgrounds might change a little, but it wouldn’t change much. Individual judges who misbehave can be overturned on appeal. Or they can be sent to Coventry by other methods. In 1987 the Hawke government sacked Justice Jim Staples from the Arbitration Commission, by the simple mechanism of not appointing him to the new Industrial Relations Commission. "Judicial independence" means only independence from any democratic control. Judges are expected to remember who their real masters are, and will get turfed if they forget it.
(Staples’ banishment to Coventry began in the late 1970s when he awarded wool storemen the unheard-of increase of $16/week in a workvalue case. All Commission judges were under orders to award no more than $8. Staples was publicly tarred and feathered by his fellow judges, and the Full Bench overturned him on appeal and dragged his figure back to the $8 limit. Staples explained he was simply deciding on the evidence before him according to law. He probably was, but the system prefers industrial decisions to be made according to broader macro-economic criteria, i.e. politics and government policy. After Staples gave another decision which criticised backroom union-employer deals, President Moore refused to let him sit alone on cases. For several months he was always outnumbered on the bench by two other judges. Then for many years up to his sacking in 1987, Moore gave him no cases to hear whatsoever.)
A few union officials and advocates get appointed to jobs in the lower echelons of the industrial courts, becoming Conciliation Commissioners and so forth. But their behaviour either becomes identical to their legally-trained peers, or gets overturned on appeal by their judicial-member superiors. There may anecdotal evidence that Commissioner Bloggs is a good commissioner, but when one looks at the institution rather than one or two individuals within it, can it be said that the Specialist/Industrial courts are more friendly? Is the "industrial relations club" a better place for unions to be? Is that "where our power lies"?
To answer this, let us look at some extracts from the record of the Federal Arbitration courts:
1928: Wharfies awarded an additional pick-up per day, i.e. an entire day of waiting, often for no pay.
1929: Timber workers awarded a longer working week (48 hours), and a 10% wage cut. Coal mining bosses demanded likewise, and locked out the NSW miners.
1931: Federal Arbitration imposes a 10% wage cut on all federal awards.
1950: The BWIU is deregistered, and a scab union is set up to poach its members.
1952: The Grouper Laurie Short put in charge of the Federated Ironworkers Association.
1953: Arbitration Court freezes wages by discontinuing the 30-year practice of quarterly adjustments to the basic wage in proportion with increases in the cost of living.
1968-69: Industrial Courts issue hundreds of penal power fines on dozens of unions. From 1956 to 1969, unions had been fined 799 times for $282,410 in fines and ordered to pay a much greater sum of legal costs. Bosses were fined $2,978 in 25 years.
1969: Victorian Tramworkers Union official Clarrie O’Shea jailed by Industrial Court judge John Kerr, when the trammies union refused to pay penal power fines and O’Shea refused to say where the union funds were hidden.
(O’Shea was released by an Australia-wide general strike movement. The events of May 1969 should be remembered:
16th: O’Shea is summonsed to court to produce the union’s financial records . He complained in court that "under s.109 or 111, [fines] are a mere formal procedure when workers are engaged in industrial struggle". Judge Kerr preferred the argument of force to the force of argument, and immediately jailed O'shea for contempt of court. Tens of thousands of Victorian workers, led by 27 leftwing unions, walked off in the next 24 hours.
18th: WA trammies strike.
19th: QLD TLC calls general strike, 150,000 out. Australia-wide rail strike.
20th: 2nd Victorian general strike. 200,000 on strike in Vic, 150,000 in QLD, 100,000 in NSW. Strikes from Tasmania to Pilbara. The mass meetings that accompanied these strikes all decided to hold further strikes and mass meetings until O'Shea was released.
21st: The fines on the Trammies were paid by an ASIO agent. O’Shea was released, and correctly said: we never did pay the fines, we never will.)
1975-81: Wages for most workers are cut by partial indexation. (Some of the cut is won back by union action in 1981-82).
1983-95: Wages are generally cut by the Prices and Incomes Accord (more drastically than by partial indexation), despite the Accord’s promise that purchasing power would be "maintained over time".
We could also cite many struggles that died in the arbitration graveyard. Workers called off strikes so the dispute could be arbitrated, and then the arbitration court kicked them in the teeth. For example: the 11-week La Trobe Valley powerworkers’ strike in 1977 for a decent wage increase was called off for arbitration, which gave them a miserly $2/week.
The real record of the industrial/arbitration courts is clear: these courts are indeed specialist courts, but that doesn't mean they are pro-union. They are just as capable of wielding the big stick as are the non-industrial, common law courts. They have clear legal authority to do so, and whether they do so depends mainly on extra-legal, political factors. In specialist courts, as elsewhere, the "status of unions under the law", the "basis of court decisions" depend upon the balance of contending class forces at the time.
14. Arbitration and Wages
So why are wage rises ever awarded by arbitration courts? The reason is not because of due process or judicial generosity. In a national wage case decision in 1977 the Arbitration Commission's President Moore answered this clearly:
industrial action threatens if we do not grant a wage rise, economic disruption threatens if we grant more than inflation.
The Commission was balancing between the unions’ threat of a workers’ strike, and the bosses’ threat of a capital strike for higher profits. It measured the forces, found them evenly balanced, and granted an percentage wage increase equal to the CPI increase. The legal process inside the court merely reflected the balance of class forces outside it.
\(In 1968, strike action by metalworkers caused the Arbitration Commission to reverse a decision allowing employers to ignore a rise in the base rates for metalworkers, if the employers were already paying over-award.)
This principle applies not just to wages decisions, but other judicial decisions affecting unions. BLF Federal Secretary Gallagher said it clearly in June 1982: the court "changed its mind" due to "the rank and file of the union ... walking off jobs". As a statement of general principle, this was so true that it hurt. The judges got sore, and jailed Gallagher for contempt of court.
(Gallagher served three months, but the experience made him softer not harder. Released in March 1983, he went straight to Hawke’s Economic Summit and voted for the Prices and Incomes Accord!)
Many militants have said similar things, concluding from their own experiences: you get in court what you are prepared to fight for outside it. If you are unprepared to fight you often get nothing, or robbed.
(Well-organised unions have occasionally managed to put these principles into practice. The Burgmans' new book on the BLF revisits some of the NSW BLF’s attitudes to 'ar-betray-tion'. Its leaders often simply absented themselves from sessions of industrial courts, sending a telegram saying the union will only accept favourable decisions. They generally treated arbitration with contempt because their strength was on the job, making the courts irrelevant. What a breath of fresh air.)
Since the Arbitration Courts have so frequently cut wages (pegged basic rates at less than inflation; and thrown out many individual claims), why have most unions clung so firmly onto this court system? The bosses regard litigation as only one of their options; why do many unions regard litigation as their central strategy?
Unions are not homogenous bodies. They combine contradictory objectives such as workers' anti-profiteering impulses together with the aspirations of these workers to participate in capitalism. They contain not only the organised rank and file but also a professional labour bureaucracy. The latter forces are usually dominant within the union, and law-abiding outside it. The legal system is the best place to participate in capitalism. And it is the best place for the bureaucracy to operate. Moreover, some union officials can acquire a salaried career in the industrial courts.
Workers have generally followed their leaders into Arbitration Courts when these courts have had a reputation for delivering the goods. The courts have generally perceived that workers are aware that direct action is the alternative to arbitration. The courts have tended to award what workers have already won, or what the applicant union is prepared to fight for.
15. The Struggle Continues, Despite Laws and Penal Powers
In theory the courts are created to settle disputes, so in practice their attention must be focussed where workers' attentions are rightly focussed: wages and conditions. The primary issue in arbitrated trade-unionism is still the price of labour power: wages. Look up any industrial award or agreement, and the major items are always wage rates, hours, loadings, and conditions. The Courts may distort the class struggle over wages but they can't abolish it.
There is no written "right to strike". Yet strikes happen. There is no written right to disobey an injunction. Yet this also happens. To the extent that such a right exists, it has been won by unionists defying injunctions.
Litigation by unions also continues, sometimes to the exclusion of direct industrial action. But the law does not entirely replace the class struggle with court cases. The judges hate to admit it, but while dozing off during the legal argument they keep one eye open on the industrial struggle. (This most powerful argument is often defused by the union tactic of using the membership as a stage army, to be trooped in and out of "report-back" meetings, and to be kept sedate at other times. I have often seen the NSW Teachers Federation practising this depressing tactic.) Marx said it fairly well:
"All struggles within the state ... are merely the illusory forms ... in which the real struggles of the different classes are fought out among one another ...".
There is a pattern in the legal history. The law recognised the right of unions to exist, because the unions fought the law to get it. Then the law made a grudging recognition of the right to strike because the unions went on strike and fought the law as well as the boss. And that pattern is true of most of our rights to engage in political activity - they all had to be fought for. They were won outside the courtroom before they were recognised within it. Our legal rights are the fruit of political victories.
16. Not only Arbitration, but also: Trade Practices Law and section 45D
Another pattern is that the legal octopus grows new tentacles. The existence of specialist industrial courts has never stopped other Courts from intervening into the arena. The penal powers of arbitration were broken in 1969, but other legal mechanisms have stuck the knife in. The most important example of this is s.45D of the Trade Practices Act.
This law was enacted in 1976 by Liberal PM Malcolm Fraser. It was based upon anti-union precedents from the USA. The section has been amended from time to time, but in 1976 these were the main words, and they are still the law:
"45D.(1) ... a person shall not, in concert with a second person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a fourth person (not being an employer of the first person)."
In other words, one unionist may not, with another unionist, picket against or ban the movement of goods into and from scab workshops. Other sections impose criminal and civil penalties upon any person engaging in such conduct. Section 80 of the Act says that the fourth person may obtain an injunction to prevent conduct in violation of s.45D. In short, section 45D prohibits unionists from solidarity action such as blacking other bosses. These are called "secondary boycotts". If a boss is on the receiving end of a secondary boycott, they can obtain injunctions against the boycott, and sue the unionists for damages.
They can also sue the union itself. When two or more members of a union do something, then "the organization shall be deemed for the purposes of this Act to engage in that conduct" - s.45D(6). In other words, if any members of a union breach section 45D, then the entire union is liable.
Some unions found loopholes in s.45D. They would encourage their employers to not touch scab goods. Consequently, s.45E was added to the Trade Practices Act in May 1980. It now reads (after we prune some verbage):
"45E (2) In a supply situation, [a supplier] must not make a contract or arrangement ... with [a union] if the proposed ... arrangement ... [has] the purpose ... of:
(a) ... hindering the [supplier] from supplying or continuing to supply such goods or services to the second person [a customer]; or
(3) In an acquisition situation, [a buyer] must not make an ... arrangement ... with [a union] ... if the ... arrangement ... [has] the purpose ... of:
(a) ... hindering the [buyer] from acquiring or continuing to acquire such goods or services from [a suppler]; ..."
At first glance, s.45E is aimed against the supplier or customer, but its ultimate target is the union that dares to support another union. Section 45E is also aimed at preventing unionists from boycotting goods in solidarity with other workers, even if their own boss is agreeable. This law against solidarity (secondary boycotts), in practice, can also stop a union from acting in defence of its own legitimate interests.
For example: Laidley v Transport Workers Union in the Federal Court in 1980. TWU members at an Amoco fuel centre, worried about their jobs, pressured Amoco to stop delivering fuel to Laidley Pty Ltd, who was moving into the bulk fuel distribution business. In March 1980 Leon Laidley obtained an interim injunction under s.45D to stop this action against Amoco.
Laidley’s case was that the TWU members were acting "in concert with" the NSW branch of the TWU - with their own union - and were violating s.45D by causing a "third person" (Amoco) to hinder the supply of goods to a fourth person (Laidly’s business). Because this action was supposedly interrupting his profit flow, it was causing him loss, or so his lawyers argued. The Federal Court accepted this argument. It issued an injunction against the TWU to cease the boycott.
This court order contains two important political messages. First, note that the TWU members didn’t take anything from Laidly, they merely undertook a traditional industrial tactic in their own workplace which interrupted the flow of profits in another. This filled the court with horror. The fact that the union was defending jobs was irrelevant. And according to the law, if surplus value stops flowing to capital, this is a "loss". i.e. "no profit" equals "loss or damage", as the law calls it, which may be prevented by an injunction. Section 45D says, in effec,t that any rich person or corporation has a right to make profits.
Second, an injunction against a boycott is an order to work - an order to relinquish all control over the production process and to obey the authority of capital; an order to act like machines rather than like people. Therefore the effect of the Court injunction is not just "don't hurt Laidley". It is more positive than that. The order is: keep loading Laidley’s tankers; work and create profits for Laidley.
(Most court orders add up to the same two sides of the same coin: first, orders that no-one can stand in the way of the accumulation of profits by capital; second, wage workers must work and create profits.)
The Federal Court also has power to fine a union $250,000 and imprison its officials for breach of Trade Practices Act orders. Union assets may be seized to satisfy fines. The only way for the union to escape liability is for the officials to prove that they took "all reasonable steps" to stop the boycott/picket (s.45D(5)). Thus officialdom can avoid civil liability, provided they discipline the militants in union ranks. Section 45D will then reward them, by not beating them.
Since 1976, court actions against unions based on s.45D/E have been taken on scores of occasions, and threatened on hundreds. In the 1980's the Plumbers and Gasfitters union was fined $280,000 for breaches of s.45D, and the Meatworkers Union was ordered to pay damages of over $2.5m (see heading #21.1 below). During the past 23 years the message has been driven home. Union officials often demonstrate public disapproval of industrial action, but salve their consciences with private utterances like: I'm really on your side, but I must look reasonable to prevent a s.45D action. Which is useless.
Section 45D is another factor in the processes which conservatise the bureaucracy and separate it off from the membership. ACTU policy calls for the repeal of s.45D. However it has usually obeyed rather than resisted this law. That is why s.45D remains a disincentive to solidarity, both within and between unions.
The Prices and Incomes Accord of 1983 promised to repeal anti-union legislation, including s.45D/E. However, soon after the Hawke government came to power in 1983, its Employment Minister Ralph Willis declared that s.45D "will only be removed when an adequate replacement has been drafted". Thirteen years later, Federal Labor was out of power, and there was neither repeal nor replacement. Section 45D/E is still on the law books.
17. Essential Services Legislation, States of Emergency, Public Order, Martial Law
Most Australian States have a trifecta of Acts applying to "Essential Services", the "energy industry", and "state disasters". All these statutes, in every State, contain "emergency provisions", providing for the proclamation of States of Emergency. The names and details of these statutes vary from State to State, but these are the common features:
A service (i.e. an industry) is defined to be Essential by an Act in the trifecta, or is "declared" to be essential by a government minister. If this service is "threatened", or if a fuel supply is interrupted, then the Governor ("on advice of cabinet") may declare a State of Emergency. This declaration means that the Governor may make regulations, and the minister may give directions, telling anybody to do anything. These directions have the force of law. This includes directions to get back to work, on the old conditions and wages, or worse. Disobedience is a crime. Any union or unionist who disobeys a direction may be prosecuted, deregistered, or both. Here are some details about two Australian States:
17. 1. NSW
The Essential Services Act (NSW) was enacted in June 1988 by the newly-elected Greiner Liberal State government. It applies to all workers in any industry declared "essential". Once the minister proclaims that some industrial action is "a threat to an essential service", then striking in an "essential service" is criminalised, workers are effectively subject to industrial conscription, while awards & Occupational Health and Safety standards are over-ruled. Anyone disobeying an Inspector’s order may be fined $1,000/day. Any "employer who is adversely affected by the disruption to the essential service has the right to stand down any employee from duty for any period" (s.16).
States of Emergency in NSW may be declared under the Essential Services Act of 1988, the Energy Administration Act of 1987, and the State Emergency and Rescue Management Act of 1989. In a NSW State of Emergency, unions may be de-registered by non-judicial means such as the minister’s say so, and workers become subject to industrial conscription. Any union or unionist standing in the way of emergency directives becomes subject to criminal penalties.
The Greiner government also enacted the Summary Offenses Act in 1988 (based upon British PM Thatcher’s Public Order Act). Section 28 created a new offense of Violent Disorder:
"If 3 or more persons ... use or threaten unlawful violence or force and their behaviour taken together is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of [those] persons ... is guilty of an offence". (The maximum penalty is confiscation of $1,000, or deprivation of liberty for six months.)
To date, police have laid Violent Disorder charges mainly against demonstrators, and spectators at sporting events. But there is no doubt that the offense was also aimed at picketers, just as similar charges were aimed in the 1930s.
The Essential Services Act and the Summary Offenses Act are still on the law books of NSW. They have not been repealed by the Labor government, nor even amended, which is not surprising. The Liberals’ Summary Offenses Act was based upon law-and-order initiatives of the previous Labor government.
The draconian sections of the Liberals’ Essential Services Act of 1988 were based word for word on similar provisions Labor’s Energy Administration Act of 1987. Labor’s Act empowered the Minister for Energy to declare a State of Emergency, over-riding all industrial awards and safety legislation. Under Clause 26, the Act applied to any form of energy, not just to gas or electricity. Labor Premier Unsworth threatened to invoke the Act against striking Caltex workers shortly before the State election in March 1988. Greiner’s 1988 Act differed from Unsworth’s 1987 Act only in that it applied to all workers (in any industry declared "essential"), and not only to those in the energy industry
The State is aware that people can get hurt in emergency hype. If this happens, it has already exonerated itself. Under s.41 of the State Emergency and Rescue Management Act 1989:
"A person may not bring proceedings against the Crown, a Minister or any body or person acting in the execution of this Division for any damage, loss, death or injury sustained because of anything done or omitted to be done in good faith ... during a state of emergency."
In February 1985 the Bjelke-Petersen National government sacked 1,100 electricity workers (Electrical Trades Union members) employed by the South East Queensland Electricity Board (SEQEB). Privatisation was planned, which meant attacks upon security and conditions. ETU members resisted.
On 6 February linesmen stuck. On 7 February Bjelke-Petersen declared a State of Emergency under the QLD State Transport Act 1938. Despite this, power supplies were cut by power workers for 10 days, & other workers applied bans in the support of the SEQEB. But after the government applied for an injunction, the electricity started flowing again. Other solidarity actions were scared off by the threat of s.45D suits.
The best opportunity for the SEQEB workers to win had passed. The ALP Federal government, the QLD Trades and Labour Council, and the NSW TLC left the ETU members locked out and fighting alone. The greatest harm done by the Accord was to destroy traditions of solidarity.
In March 1985, Bjelke Petersen saw the TLC in retreat, and enacted 5 new anti-union acts, imitating s.45D/E, abolishing the closed shop, and criminalising striking (widely defined) unless it was begun by a Commission-supervised secret ballot. The new Electricity Continuity of Supply Amendment Act was aimed directly at pickets. It empowered police to arrest anyone "interfering with electricity supply". Federal Liberal leader Peacock, then campaigning for a Federal election, promised he would enact similar legislation.
The ACTU derailed solidarity by calling a half-hearted "blockade" of QLD, which went nowhere. They held out fantasy of Federal Legislation that would bring SEQEB workers under a Federal award and get them back their jobs. The High Court threw out that fantasy. The fight of ETU members against the lockout was slowly strangled. This result was not inevitable. But the inaction of the ACTU and the QLD TLC made it more likely.
Bjelke Petersen’s legal attacks had precedents. In February 1948, 3,000 railway workers walked out in QLD. The QLD ALP government stood down 14,000 workers, and declared a State of Emergency under the State Transport Act 1938. During the Emergency, cops raided hundreds of workers’ homes, and bashed senseless the communist MP Fred Patterson. (Nevertheless, after 9 weeks, the strike won pay increases, and weekend penalties.)
The State Transport Act 1938 is still on the law books in QLD. It empowers the Governor to give any order he wishes; disobedience is a crime.
The QLD Liquid Fuel Supply Act 1984 provides for declaration of "liquid fuel emergencies". It is obviously directed at unions in that industry.
There is also the third placing of the trifecta, expressed in very wide terms. Under the Public Safety Preservation Act of 1986, an
"emergency situation ... means ... any accident .... that causes or may cause a danger of death, injury or distress to any person, a loss of or damage to any property ...".
Any situation that may cause a danger to any property is worth a declaration of emergency!
17.6. Riot and Martial Law
All states have laws against "riots", which are essentially situations in which people defend themselves from a baton charge. For example, under the WA Criminal Code Compilation Act 1913, s.41:
"When any person, whether subject to military law or not, believes, on reasonable grounds, that serious mischief will arise from a riot before there is time to procure the intervention of a justice, it is lawful for him to use such force as he believes, on reasonable grounds, to be necessary for the suppression of the riot, and as is reasonably proportioned to the danger which he believes, on reasonable grounds, is to be apprehended from its continuance."
NSW has s.93B of the Crimes Act which is identical to s.28 of the Summary Offenses Act, except that it applies "where 12 or more persons are gathered" and the penalties are heavier:
"If 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for a common purpose is guilty of riot and liable to penal servitude for 10 years. ... No person of reasonable firmness need actually be, or likely to be, present at the scene."
In prosecutions under this law, the "person of reasonable firmness present at the scene" is always a policeman - who gives evidence about how terrified they were. They never have the sense to simply go home.
Democratic rights, such as rights to assemble, unionise, and withdraw labour, do not have deep legal foundations. They are a very thin veneer on a tangled structure of dictatorial penalties and compulsions. They are easily wiped off by a "essential services" legislation, and by proclamations of a State of Emergency.
Democratic rights are also suspended by declarations of martial law. On paper, Polish Solidarity had a lots of paper rights in 1981 - they didn't help when the military coup came, commencing with a declaration of martial law. Chilean citizens had paper guarantees of certain liberties - also useless when the 1973 military coup came. After the coups, some victims sought remedies in the courts for the forced violation of their, or their dead relatives’, democratic rights. The judges replied: forget it - those rights don’t apply during martial law.
The Australian experience shows that in wartime, even if martial law is not formally declared, legal restrictions are usually imposed on unions and workers. During WWII, the Curtin-Chifley Labor federal governments imposed wage freezes as a "war measure". After the war ended in 1945, Chifley attempted to continue these wage controls indefinitely. He succeeded for two years, but was forced to lift the controls in 1947 by a 5 month Victorian metalworkers’ strike.
In the early post-war period, many other unionists also pursued claims that they had put off during WWII. The greatest single victory in this period was the militant unions winning the 40 hour week in January 1948. They won by refusing to work any longer hours.
18. Intra union litigation
During the 1900s the legal system developed the tactic of encouraging individual unionists to break ranks and go running to the courts after they have already lost their case before the union membership. The Courts have given a standing invitation to these individuals to do so. An English Law Lord, Denning, said in Annamunthodo v Oil Workers Union:
"If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the courts".
(The late Lord Denning, former Master of the Rolls of the English Court of Appeal and committed misogynist, heard 29 appeal cases involving trade unions. He ruled against the union in 28 of them. His one ruling for a union was overturned on appeal by the House of Lords.)
Wherever such "individual rights" are upheld, it must be asked: whose rights are being upheld against whom? Generally speaking, the rights of the scab have been upheld against the union. In Australia, the courts have upheld the individual rights of scabs such as Noel Latham against the Barrier Industrial Council and Barbara Biggs against the Victorian Trammies union.
There are many issues around which Anglo-Australian courts have, on application by individual unionists, overturned decisions of the entire union. Following such challenges, Courts have stopped political levies (Osborne v ASRS 1906); prevented strike levies (Boilermakers’ Case 94CLR254); awarded injunctions and damages against expulsions (Bonsor v Musicians Union 1956, Williams v Hursey 1959); overturned elections (Short v FIA 1953); and prevented the union sacking an organiser (O’donohue v ASCJA 1979).
It must be stressed that the Courts' interventions have never been motivated by desire to uphold the will of the membership. In most of these cases the union membership has been overwhelmingly behind the decision under legal challenge. But this fact has been irrelevant to the judges and to the "black letter law". The judge in Gordon v Carrol (1975)6ALR579 said:
"one of the strengths of Australian trade unions over the years has been their tradition of sound and democratic government. This is due in part at least to the supervision of the affairs of unions provided for in legislation and exercised by this and other courts"
Again, the law is a combination of large and fine print: ALL THE DEMOCRACY YOU LIKE providing the courts approve.
19. Conservative/Corrupt Unions
Not all individual unionists that take their union to court are committed scabs. Some are sincere unionists, driven to desperation by gangsterism, bureaucracy, or rigged elections. But their desperate actions carry the extreme danger of inviting state power into the union.
To go running to the courts because you've got some disgruntlement about the union is a sign of extreme weakness, if not of outright scabbery. You are inviting the power of the capitalist state, rather than the union rank and file, to rearrange union affairs. This state has a long and sordid history of persecution of unions and unionists. It does not become warm and cuddly merely because a section of it wears robes and talks Latin phrases. This state, like the guest that came for dinner and stayed a year, doesn't leave just because it is asked politely.
The alternative to litigation against corrupt union leaderships is to take your case to the other source of power in capitalist society: organised workers; the trade union membership. Appeal to them against the boss, the gangsters, and undemocratic practices.
Many militants will reply: they've tried that, and they've failed; they are using legal action as a last resort. Sincere though this may be, it is usually an admission of defeat. They have failed to establish a commitment to democratic unionism amongst the rank and file. So they have switched their appeals from workers’ power to state power. The state will use them as its Trojan horse.
Sometimes they seem to succeed. The court may order a supervised ballot. But it frequently produces a cure that is worse than the disease. Two examples:
One: Laurie Short became Ironworkers Secretary by court order in 1953, after a court inquiry into alleged electoral fiddles by the incumbents. This verdict was a success story in the legal career of Short’s barrister, one John Kerr. Many militants thought this was a good thing at the time. They probably had some doubts afterwards, when they saw Short cuddling up to the groupers, and various right wing causes and fronts for the CIA.
Two: the legal battles of the BLF Reform Group in NSW. The militants of the pre-1973 NSWBLF who survived the Gallagher takeover took legal action against his corrupt regime in the hope of winning fair state branch elections. The Reform Group won the court case. However they lost the court-ordered election. They won the legal battle, but they lost the thing that mattered most, the support of the rank and file.
In many other cases, militants have obtained short term advantages through the courts, but have paid very dearly for them in the long term. The Courts obtain an extra foothold in the workers' union and never let go. The rank and file are kept passive during the legal battle, and are encouraged to stay respectful and law abiding. Meanwhile the bosses sharpen their knives, including the lawsuit, for future battles.
In summary, the large print giveth and the small print taketh away. Don’t sue, organise.
20. Their Property and Ours
It is said: property is nine-tenths of the law. This saying is misleading, if not downright wrong.
Most law is about violating personal property. The legal system taxes, fines, awards damages, confiscates, prohibits sale, orders sale, injuncts, garnishees, transfers, overturns wills, rewrites contracts etc - all of which moves property from one hand to another. Theft is a crime only because theft is the prerogative of law, and the legal system doesn't like other operators on its turf.
Property in general is not sacred to the legal system - only certain types of property are, primarily property based upon the extraction of profit from labour. The law violates union property when this property is used on our side of class struggle - see e.g. the Taff Vale case. This is true not just of industrial law, but also of law in general. A close examination of the totality of property law shows that law violates personal property whenever necessary to maintain the capitalist mode of exploitation.
Capitalism requires everyone to have property rights. This applies not just to the rich with plenty of property, but also to the working class with plenty of nothing. The bosses want workers to be able to sell the property that workers do own - labour power. When labourers were tied to land or lord, they were unavailable to industry. Their labour power was controlled and monopolised by a feudal lord or a slave master. Capital could not buy it. In order to be of use to capitalism, the workers needed freedom from feudal duties, and equal rights with other traders to sell their skins to a boss for a periodic wage.
When capital buys labour power, all it can offer in payment is money. Workers can't eat money. Money wages are useless unless you can obtain worldly goods you by purchasing them with money. Therefore the poor, as well as the rich, must have a guaranteed right to buy and own property, so that they'll work for wages. And all the middlemen retailers must also have property rights.
Bourgeois equality means no more this right to sell some property (if anyone wants to buy it) and the right to buy on the market (if you can afford it). This is essential meaning of "equality before the law". However, because everyone in the market owns different sorts of property and different amounts of wealth, this legal equality leaves sellers of labour power back where they started - in a position of economic inequality.
Workers cannot use their property rights to buy back the capital from the exploiters. The value created by workers far exceeds the value of their wages. All the surplus is accumulated as capital whereas the wages are consumed from week to week. When the operator of the Oakley coal mine went into liquidation, the miners were owed millions of dollars of unpaid leave and other entitlements. But the company bank accounts were empty. All the profits generated by the miners had flown to other parts of the system. The miners were left with some rusty equipment, and their mortgages. It took a political campaign to squeeze an extra-legal payout from the Federal government.
[The example of the Oakley coal miners is the tip of an iceberg. Approximately 20,000 Australian workers per year lose their accrued entitlements to annual and longservice leave when their employers goes bust. Lesson: take your annual leave, and take your sick leave.]
Under normal circumstances, the workers' personal property is a necessary and legally protected part of a system of class inequality. In more advanced capitalism, the system needs the worker to have certain items of property: a car to drive to work, a telephone to answer call-ins to work overtime; a TV to fix their heads, and a house, so their mortgage obligations will discourage them from striking. But if the working class starts collectively marshalling its property for the purposes of class struggle (for the purposes of increasing its share of the social product), that is a threat to the system. The best example of this occurs when workers contribute to a strike fund. That is the sort of property which the system doesn't need, and that sort of property is not sacred.
Anglo-Australian legal violations of the collective property of the working class began with the Taff Vale decision in 1900. It has been encouraged by dozens of different legal formulas since then. In June 1949 the Australian Coalminers struck. The Chifley federal government quickly passed the National Emergency (Coal Strike) Act 1949, to freeze the finances of the miners' union. The State governments enacted similar legislation. Union officers that refused to disclose particulars of union funds were imprisoned. In the 1950's and 1960's the Courts made a regular practice of fining unions and freezing their bank accounts. In 1976, the Fraser government enacted s.45D to justify the seizure of union property.
The courts and the bosses know that legal attacks on union property carry risks. They might provoke industrial responses. If all funds are gone, the union officials have much less to lose. In such circumstances the officials may seek to promote the struggle rather than confine it within legal channels. I get the impression that this is what happened when the Victorian Supreme Court seized the funds of the Tramways Union in 1969. The union movement struck back, and with good effect.
Australian experience shows that the practice of seizing union funds is warded off only by the vigilance and the responsiveness of the union movement. When a union is unprepared, or not backed by other unions, it is vulnerable.
21. 1983-1996: The Accord Strangles the Unions
With the Accord of 1983, the tendencies of the Arbitration system to incorporate trade unions into the state reached their maximum extent. The ACTU executive became a defacto committee of the Hawke-Keating Federal Cabinet. Its secretary Bill Kelty was like a cabinet minister. Under these conditions the unions did not grow strong and more effective. On the contrary, all the strings that come attached to union law combined into one noose, wrapped around the throats of the unions.
Before mentioning some cases where a union was strangled, we should recall the layers of large print and fine print:
At the bottom: From 1349-1825, statute law is uniformly hostile to workers organisations, and the common law encourages tort suits against union action. Unionists can be sued for "conspiracy to induce breach of contract".
1871: The Trade Union Act gives legal recognition to registered unions, but the 1875 Conspiracy Act outlaws picketing. In 1900 The House of Lords says in Taff Vale that registration also means vulnerability to civil action.
1904: In Australia, Arbitration law creates minimum wages, but it imposes penal powers, and does not abolish common law torts against unions. The large print gives awards, the fine print creates penal powers.
In Federal and State industrial law, registration gives legal rights and status to unions, but de-registration authorises state-assisted scabbery.
The Arbitration Courts are very pleasant places, and the ACTU is always welcome to have its say. But other Courts such as the Federal Court have powers under the Trade Practices Act 1976 (s.45D) to issue injunctions against strikes, and to expropriate union assets. All State governments enact "Essential Services legislation" which provides for the rapid suspension of union and workers’ rights under arbitration law.
The Accord in 1983 promised all sorts of things to workers, in return for industrial docility. It promised to maintain real purchasing power, but delivered real wage cuts. It promised to repeal s.45D, but s.45D remained on the law books. And "Essential Services" legislation continued to operate in most States.
1988: Labour’s Industrial Relations Act of 1988 gave the Industrial Relations Commission wider jurisdiction, (by removing the definition of "industrial dispute") but it was not to interfere with "managerial prerogative" (i.e.capital’s control of labour). The legislation restricted common law suits against unions, but also gave the IRC power to insert bans clauses outlawing industrial action and to seize or freeze union funds. It penalised award breaches by $1,000/day fines. Strikes were defined to mean almost any industrial tactic and striking unions could be fined $2,500/day. Much of this law was based on statutes created in 1985/86 to deregister the BLF.
The Accord was built upon this legal foundation. Its hopeful phrases and promises left untouched a huge battery of legal weapons against unionism. In the 1980's several unions received frontal legal assaults, and came out of them bruised and beaten. I’ll mention three well-known instances, and summarise the key legal events in chronological form.
21.1. 1985-6: The Meatworkers at Mudginberry, Northern Territory
In May 1985 the Amalgamated Meat Industry Employees Union (AMIEU) imposed a picket at Mudginberry Abattoir (in the Northern Territory), against its contract labour system, which was exempt of union-negotiated minimum tally system, and required workers to kill a greater tally. Meat inspectors wouldn’t cross. The picket stopped export buffalo beef from leaving.
On 12 June 1985, on the application of the abattoir owners Jay Pendarvis, Beaumont J in the Federal Court granted an interlocutory injunction against the picket under s.45D of the Trade Practices Act. Later in June, he found the union to be in breach of this injunction and imposed a fine of $10,000 and $2,000/day.
The Union picketed on. It was following ACTU policy to defy s.45D/E orders. But the ACTU failed to get squarely behind the AMIEU.
On 12 July 1985 Morling FCJ granted a permanent injunction against the picket. On 18 July Mudginberry abbatoir, backed by the National Farmers Federation and financially underwritten by the NT and QLD governments, applied for sequestration (legal expropriation) of union assets. Federal Court Chief Justice Bowen fined the union $44,000, ordered it to pay legal costs of approximately $100,000, and sequestrated its property. His order authorised four accounting firms to enter union premises and seize its assets, including its bank accounts. The was the first such seizure under s.45D, occurring under Hawke not Fraser. The union appealed, and the picket stayed. On 7 August, waterfront and maritime unions joined the AMIEU in a 24 hour stoppage.
On 16 August, Lockardt FCJ found the AMIEU to be in contempt of court for breach of court order, which is an offense under s.31 of the Federal Court Act. On 11 September 1985 he fined the union $100,000.
In September 1985 the AMIEU lifted the picket, in compliance with a direction from Arbitration Commission President Moore. Mudginberry owner Pendarvis gleefully announced he would continue to sue the union in the Federal Court. Thank you Mr Moore. The industrial struggle was over. All that followed was a sorry legal tale, of civil suits kicking the union it was down.
In July 1986 the Federal Court awarded $1,458,000 damages against the union to the abattoir, plus costs of approximately $1m. Total fines and damages ordered against the AMIEU were: $44,000 + $100,000 + $100,000 + $1,458,000 + $1m costs = $2.7m. Every appeal by the AMIEU to the Full Federal Court and the High Court was rejected.
21.2. Late 1985: Confectionery Workers Union at Dollar Sweets (Melbourne Victoria).
In 1985 in Victoria, Dollar Sweets sacked some workers who wouldn’t sign no strike agreement. The Confectionery Workers Union picketed Dollar Sweets for 143 days in support of their 36 hour week claim, and for reinstatement of the sacked workers. The bosses sued in the Victorian Supreme Court, alleging "torts of interference with contractual relations, torts of intimidation, torts of nuisance, and conspiracy to injure the plaintiff", and sought injunctions and common law damages.
In December 1985 Victorian Supreme Court Justice Peter Murphy gave judgment, describing the effective picketing as "stupid and nihilistic acts", and quoted Mason J (already quoted under heading #7 above): "At common law, picketing is ... a nuisance and unlawful ... if it involves obstruction and besetting". He ruled the picket was not a "lawful form of picketing, but a ... nuisance involving obstruction, harassment, and besetting". It is beside the point, said Murphy J, that there are specialist arbitral courts for industrial disputes. "This court is not without power ... and should intervene". He issued an interlocutory injunction against the picket, and ordered the union to pay damages.
Yuppie climber Peter Costello (now federal Treasurer under Howard) claims to have made his name in this case. It was hard work. He carried the bag of the senior counsel that argued the bosses’ case to a receptive audience of one wigged judge, who was a close friend of the Victorian establishment.
The ACTU was worse than useless. It publicly condemned the CWU, saying the CWU’s 36 hour claim was "outside the Accord". This ruled out solidarity, and assured the courts they need not fear industrial retaliation. All the grand promises that the Accord would bring a new age in industrial relations counted for nothing. The common law remains a weapon of legal attack against effective unionism. Isolated and threatened with jail, CWU workers lifted the picket.
In 1988 the Union agreed to pay damages of $175,000.
21.3. 1989: The Airline Pilots’ Dispute with the Main Domestic Airlines
In July 1989 and Ocober 1989 the Australian Federation of Airline Pilots’ served claims on Ansett, Australian Airlines, East-West, and IPEC for a 30% wage rise -- a greater rise than Accord-style indexation allowed. When these claims were refused, the 1,600 main-domestic carrier pilots struck.
On 21 August the Industrial Relations Commission, with support from the Hawke government and the ACTU, deregistered the AFAP and cancelled the pilots’ award. All AFAP pilots resigned in Aug 1989, to avoid the risk of civil liability. The Airlines hired scab pilots on individual contracts, offering more money for more flying hours. In September the Hawke government offered financial subsidies to the airlines. Hawke himself sent a personal letter to all pilots, urging them to go back on individual contracts. Small wonder that overall union membership in Australia fell during the time of the Accord.
In November 1989 the airlines sued the AFAP and 6 of its leaders in the Victorian Supreme Court, claiming damages for various common law torts - interference with contractual relations, interference with trade or business, conspiracy, and intimidation. Brooking SCJ ruled the strike illegal under common law. He decided the defendants had conspired unlawfully, and interfered with trade and contractual relations. He ordered them to pay $6.3m common law damages. (See Ansett Transport Industries Operations Pty Ltd & Ors v Australian Federation of Air Pilots 95ALR211.)
After this court decision, many observed, some with glee: there is no right to strike in Australia; there never was. We can agree with this statement, slightly modified: there has never been a legal right to strike in Australia; however unions have a political and moral right to strike, which they should exercise, whatever the law says.
Admittedly the leadership of the AFAP could hardly be called active practitioners of the principles of "How to Win Friends and Influence People". For example, the Airline Pilots did not consult the unions covering airlines ground staff. Nevertheless, the fact remains that this union was smashed not because of its deficiencies, but because its members were fighting to uphold their living standards, in a period of declining wages. The collaboration of most of the union leaderships in this process marked a despicable chapter in the history of the Australian Labour movement.
Hawke said the pilots’ strike court decision did not set a precedent. Rubbish. In 1998 Reith said the Patrick lockout was just like the Pilots’ strike. He hoped for a similar outcome but fortunately didn’t get it.
21.4. The Large Print Giveth and the Small Print Taketh Away: Labor’s 1993 "Right to Strike" Legislation.
In 1993 the ALP government amended a useless "right to strike" provision into its Industrial Relations Act (Commonwealth) 1988. It didn't deserve the name. It gave no positive rights. It merely exempted unions from civil liability under common law if they confined their strike to strictly limited times and circumstances. Unions would be free from civil liability for strikes, provided they occurred only during the formal bargaining period leading up to signing of a new enterprise agreement, and after 3 days notice was given. The practical thrust of this provision was not to protect unions, but to encourage civil suits against them. It would have been useless to the unions in each of the three struggles mentioned previously.
This provision was repealed by the newly elected Howard government in 1996, when it rewrote and re-named Labor’s Industrial Relations Act, creating the Workplace Relations Act. The Liberals felt that the phrase right to strike was too disgusting to repeat in public, and removed it from the Act. However, their Act contained a similar provision under a new label - protected industrial action. Again, the thrust of the provision was to encourage civil suits.
Industrial legislation under the Howard government is still evolving. The Workplace Relations Act is being constantly re-written by the Liberals and Democrats, and by the unionists that fight it. One thing, however, always remains the same. Workers must win in struggle, not in the courts.
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