May Day pays tribute to the working people of the world; their culture, their traditions and their history. May Day Lecture 1991 presented by Senator Barney Cooney.
Australians have given much to all these. In respect of all they have received much from overseas. It is right and propers that they join in the world wide celebrations marking the events that led to the first international May Day on 1st May, 1890.
May Day commemorates more than struggles long since won. It stands too for those in which working people of today are now engaged: security of employment, safe workplaces, proper wages, adequate superannuation, decent training, and on a broader plane a more generous, just and thriving society. What happened last century arose from the nature of labour which was then the one commodity workers had to sell. They are in the same position today. Labour tends to fetch a poor return when marketed by an individual negotiating alone. It is better rewarded where he or she can sell it as a member of a union.
The weaker the position from which workers negotiate the poorer their pay and conditions are likely to be. That was true yesterday, is so today and will continue to be so in the future.
Organisation gives strength, and hose who hope to blunt the purpose of the men and women who form a union know that, and seek to weaken and even destroy it. They have done so in the past by means both legal and otherwise, and do so now calling on the aide of the law. Companies are ever ready to sue workers and their organisation for economic torts and to invoke sections 45D and 45E of the Trades Practices Act against them.
Labour history is full of actions taken against unions based on assumptions hostile to workers and ill founded in fact. One of the most persistent and insidious is that when an employer and an employee negotiate wages and conditions on their own, they have equal strength in bargaining. Another is that workers are delinquent if they join together to take common action to obtain improvements in their employment. These two assumptions have cost working people dearly over the centuries.
Capital has always understood that its ability to control conditions operating in the workplace is limited by the presence there of unions. It has always understood that in combination workers possess vastly greater power to bargain with it than as individuals.
That is why is has always put organisations of workers under challenge. A major means of doing so has been legislation and the courts.
This is not the occasion for giving a detailed history of the law’s treatment of workers since the coming of the Industrial Age. But some reference to past events is needed to show how great a part they have played in bringing about the industrial relations we now have in Australia.
Justices Isaacs and Rich pointed this out in 1919 when deciding a case brought by the Municipal Employees against the City of Melbourne they said:
“The “industrial revolution” for a long time….made the workman’s labour a mere marketable commodity to be bought at the lowest price that individual competition between workers would permit. The degradation and suffering that ensued, the revolt against the system, the repression of illegal acts, the amelioration of the law, the organization of labour, the gradual recognition of collective bargaining, the introduction of private conciliation and arbitration as well as of industrial laws securing better conditions for workers, are all well-know historical facts.”
As people found themselves brought together in factories towards the end of 18th Century England they came to see they would forever work in misery unless they negotiated with their employers in unison. Accordingly they combined together to do just that.
The British Parliament reacted in the interests of capital by passing legislation to prevent “unlawful combinations of workmen” on July 12th 1799 and on July 29th 1800. The following are quotes from the volumes in which those acts are recorded. They show an attitude to workers that persists to this day. The preamble to the first act reads:
“Whereas great number of journeymen manufacturers and workmen in various parts of this kingdom have by unlawful meetings and combinations endeavoured to obtain advance of their wages, and to affectionate other illegal purposes: and the laws at present in force against such unlawful conduct have been found to be inadequate to the suppression thereof, whereby it is become necessary that more effectual provision should be made against such unlawful combinations; and for preventing such unlawful practices in future, and for bringing such offenders to more speedy and exemplary justice may it please Your Majesty that it may be enacted…”
Marginal notes to the second act read:
“All contracts heretofore entered into for obtaining an advance of wages, altering the usual time of working decreasing the quantity of work etc. (except contracts between masters and men) shall be void.”
and again
“Every workman after passing this act who shall be guilty of any such offence shall be committed to the common gaol or the house of corrections.”
The Act of 1800 provide for arbitration but as between employer and employee unsupported by a union. If an issue could not be resolved by the arbitrator a justice of the peace did so. Justices were drawn from amongst property owners, not from amongst labourers. Arbitration needs more than establishment by an act of parliament to make it fair.
In June 1824 and July 1825 acts were passed in England allowing people to form unions to gain better wages and conditions but banning picketing or persuading others to stop work.
This did not stop the Tolpuddle Martyrs being convicted in 1834 after coming together to seek better working conditions. Their crime was not that of combining together for industrial purposes, but that of administering an unlawful oath. They were convicted under the Mutiny Act 1797. This had been introduced not to punish unionists but to counter the concealing of mutiny and sedition amongst England’s armed forces during the French Revolution. It is one example of how legislation can be used against workers and their organisation even though it was originally enacted for an entirely different purpose. The Trade Practices Act introduced by the Whitlam Government in 1974 is another.
As unions developed it was not only Parliament which sought to control them. During the 19th Century British courts rigorously confined them through the common law actions of conspiracy intimidation and inducing breach of contract. This made it legally impossible for them to carry out effective industrial action.
Combinations of workers who refused to work in accordance with their contract of employment, who persuaded employees to withdraw their labour, who induced those supplying goods and services to their employers to stop doing so, suffered under the common law. They continue to do so today. The Dollar Sweets case and the Pilots case are dramatic examples. Because of legislation in England such as the Trade Disputes Act 1906, unions there are better protected against common law action than here.
Persistent attacks on unions by capital supported by both court and government marks the history of unionism in the United States as they do in England and Australia. However they have been even more bloody and violent there than in the other two countries. The origins of May Day show the truth of this statement.
As in Australia people in the United States during the second half of the 19th Century campaigned for shorter working hours. On the 1st May 1886 workers went on strike in Chicago to obtain better conditions and in particular an eight hour day. During the week that followed many were attacked by the authorities, some were killed and later four of their leaders hanged for events that then took place. The day became a symbol for working people everywhere. It came to stand for their successes, their failures, their struggles with the law, their interaction with the authorities, their culture and their traditions.
The campaign for an eight hour day became a symbol for the same things. Its history is closely intertwined with that of May Day. The 1886 strike in Chicago had as its major objective an eight hour working day. There were movements made in several countries for it, the various Australian colonies included. These gave rise to much action and reaction between workers and capital, workers and the authorities, and workers and the law. As a result a complexion was give to industrial relations which has persisted till today.
Though not as bad as in the United States there is a history of repression against workers and their leaders in Australia.
In 1822 a convict in New South Wales organised his fellow servants to make a combined claim against their master for more rations and wages. For this he received 500 lashes and confinement in a penal settlement.
On 24 March, 1891 Queensland authorities arrested 14 men at Barcaldine and Capella. They were charged under the provisions of an Act passed in England on 6th July, 1825 with a number of offences including combining together to force or endeavour to force others to go on strike. It had been repealed in England but was still applied in this country. Of those arrested 12 were convicted during May 1891 at a trial in Rockhampton. They were gaoled for 3 years.
On the 18th November 1925 the Minister for Home and Territories in the Bruce-Page Government ordered the deportation of Thomas Walsh and Jacob Johnson, senior officials of the Australian Seamen’s Union. He did this under an amendment to the Immigration Act section 8AA which the Government introduced to stop these two office holders carrying out their functions. It provided that where there existed “in Australia a serious industrial disturbance prejudicing or threatening the peace, order or good Government of the Commonwealth” a proclamation to that effect could be made and where anyone “not born in Australia” had been involved in acts “directed towards hindering or obstructing” transport in this country they were liable to be sent out of it.
Thomas Walsh was born in Ireland but had lived in Australia from 1893. Jacob Johnson was born in Sweden but had lived here from 1910. Both were arrested and held in custody pending expulsion from the country. On an application to the High Court their release was ordered and they remained here. Had it not done so two union officials would have been banished from their own land for carrying out their duty.
In May 1969, being the seventy-ninth anniversary of the month during which the first International May Day was celebrated, and now 22 years ago, Mr. Justice Kerr as he then was passed the following sentence:
“In those circumstances Clarence Lyell O’Shea I have no alternative but to order you to be committed to prison, there to be detained until you shall market to the satisfaction of the Court proper answers on your oral examination or until the Court shall otherwise order.
Clarrie O’Shea, Secretary of the Victorian Tramways Union, had refused to give evidence as to the whereabouts of its funds. The Court wanted to take from them the amount of an unpaid fine imposed upon it for certain action it had taken during an industrial dispute. The union saw the penalty as unjust and refused payment.
As recent events have shown, disputes in the workplace can lead to imprisonment for those who engage in them on behalf of wage earners.
There are two ancient concepts running through the English legal system which have much influenced the development of industrial law. The first is that contracts are sacred: the second that restraint of trade is against the public interest. Their influence has often been an unhappy one. The common law gives priority to contractual rights and to the interests of commerce over the need of working people for fair wages and conditions.
When applying the common law to industrial matters courts concern themselves not with whether people work for poor pay or under bad conditions but whether they have damaged trade or caused others to break their contracts of employment. What they look to is not the welfare of workers but the wellbeing of industry. This is the legacy left to them by the judges of the past.
The common law knows actions such as inducing breach of contract, intimidation and conspiracy, all of which are used by capital against labour. It knows no action by which a person can sue for a proper wage or adequate conditions or even a safe workplace.
Parliament has much improved people’s position under the law. Legislation has been enacted providing for their safety, guaranteeing minimum wages, ensuring reasonable working conditions. It has also brought in laws diminishing the power of workers to negotiate with employers. Sections 45D and 45E are stark examples. The concepts behind them are the same as those behind the common law.
There is a belief in the community much cultivated by a variety of interests that employers are too often unfairly treated by employees through their unions, that they are too readily damaged by them that they are too vulnerable to their demands. Seeking to exploit this belief an unhappily large part of the management, the media, the political forces, the sectional lobby groups in Australia advocate greater and greater restrictions on organised labour.
How accurate is this belief? Are unions in this country forever taking industrial action, always meddling in the running of enterprises, wantonly preventing needed change in the workplace, the major source of managerial concern?
Earlier this year the Commonwealth Department of Industrial Relations published a survey by Ron Callus, Alison Morehead, Mark Cully and John Buchanan entitled “Industrial Relations at Work”. Among their conclusions were the following, and I quote, in respect of the taking of industrial action:
“ The occurrence of industrial action such as strikes, stop work meetings, bans, go slow, pickets or work to rule at Australian workplaces was not wide spread. Indeed, 72 per cent of workplaces covering industrial action and a further 10 per cent of workplaces had not had any form of industrial action for two years of more. The incidence of industrial action increased with workplace employment size with two thirds of large workplaces (with 500 employees or more) having some form of industrial action in the year prior to the survey.”
I should say a graph in the Summary of Findings shows that stop work meetings were the most common form of industrial action and it was more likely to occur in the public sector. (p9).
In respect of unions meddling in the running of enterprises:
“Managers were also asked how often they consulted with unions and employees about changes at the workplace. In nearly three quarters of workplaces unions were not consulted or even informed about changes which would affect employees. Public sector workplaces were twice as likely as private sector workplaces to consult with unions.” (p14).
In respect of unions preventing needed change:
“The survey revealed that organisational change had been marked and widespread in Australian workplaces during 1987-90. Overall 86 per cent of managers reported that they had experienced at leased on type of organisational change. Fifty-five percent of workplaces indicated that there had been two or more changes in the previous two years.”
In respect of unions being the major source of management Concern:
“Our survey evidence also shows that more workplace managers perceive factors other than traditions industrial relations concerns – such as capital limits and organisational issues – as greater impediments to improving workplace efficiency and productivity.” (p.20).
Presented By: Senator Barney Cooney, Old Ballroom, Victorian Trades Hall Council, Thursday 2nd May, 1991, Melbourne May Day Committee 1991
