Fighting Labor’s anti-union laws: the ghost of Clarrie O’Shea
These are some notes for a talk 3 years ago on how to smash Labor’s penal powers which fine and may jail workers for taking industrial action. Although a bit dated, it stands the test of time and as the bosses and their Labor and Liberal governments attack workers, has lessons for today. I suspect some of it is lifted from an article in Socialist Alternative.
40 years ago, on 15 May 1969, Justice John Kerr of the Industrial Court jailed Clarrie O’Shea, a union official with the Tramways Union. He found him guilty of contempt of court.
O’Shea had refused to produce the books of the union to enable fines against the union to be collected.
The Conciliation and Arbitration Court had imposed numerous fines on the union over the previous 15 years as the union took action over wages, the 40 hour week, sick leave and the introduction of one person crews on buses.
Justice Kerr sent O’Shea to Melbourne’s Pentridge Jail.
But O’Shea had not come to court alone. He had led a march of 5,000 unionists to the Court. Union delegates from 27 left wing unions had met at 8.30 in the morning of the court hearing and resolved:
We determine that any attempt to take direct punitive action … will be met with an immediate 24 hour stoppage of work by all workers represented at this meeting, and call upon all other workers to stand and defend unions and what they mean to Australian workers.
There were immediate walkouts in Victoria.
Over the next week, one million workers went on strike or took part in stop work meetings.
On the next day, a Friday, there was a general strike in Victoria and across Australia 500,000 workers went out on strike. Trains and trams stopped, delivery of goods was severely restricted, the power was cut for four hours and TV and radio broadcasts were disrupted.
There was similar action in Geelong, Bendigo, Ballarat and the Latrobe Valley. There was a second 24 hour strike on the following Tuesday, endorsed by 40 unions.
There were protests outside Pentridge jail and demonstrations and marches in many state capitals chanting “all the way with Clarrie O’Shea”.
In Sydney, over 5,000 marched through the city, blocking traffic for 45 minutes. All public transport stopped. Six thousand waterside workers went on strike, as did actors, musicians, architects and engineers.
The Trades and Labour Council of WA, the Queensland Trades and Labor Council and the United Trades and Labour Council of South Australia all called state wide general strikes. In Queensland, mass meetings or strikes occurred in 20 cities and towns. Newcastle, Wollongong and Canberra called out members of affiliated unions.
In Tasmania, where the Trades and Labour Council refused to sanction any action, “rebel” unions representing 50,000 workers—or 80 per cent of Tasmania’s workforce—organised a general stoppage.
Workers took action even if their union wasn’t officially supporting the strike. The secretary of the Geelong Trades Hall Council reported:
Although some unions were not officially involved, in some cases large numbers of their members knocked off and were present at our meetings.
AWU members went on strike at the Stuart copper refinery and in the Pilbara and Kalgoorlie against the instructions of conservative officials.
The strength of the strike wave surprised many. John Arrowsmith, a historian of the strike and then member of the Communist Party, said:
I think it surprised everyone. But the reaction to the announcement that O’Shea had been jailed was absolutely electric. Everybody thought that this was something they had to get into. Every union official was swamped by calls – people wanted to know what the unions were going to do.
There was a real possibility of a national general strike to free O’Shea.
The Government was only saved when, 6 days after the jailing, a former advertising manager for the Australian Financial Review, acting on behalf of an anonymous donor, paid the fines, allowing the release of Clarrie O’Shea.
On his release, O’Shea said:
My release is a great victory for workers. I am certain that all workers remain adamant in their opposition to the penal powers, which are designed to suppress the workers.
Neither the Tramways Union nor I have paid one cent of the fines, nor will we ever do so.
The infinite power of the workers when they are really aroused has frightened the life out of the government and the employers.
It will go on to greater victories. … I am certain the workers will continue the struggle for the abolition of all penal powers.
After his release, the ACTU advised trade unions to not pay any outstanding fines imposed under the Penal Clauses.
Unions maintained the pressure with further strikes.
On 26 August 1969, the Federal Government asked employers not to use the penal powers until an alternative could be organised.
Gough Whitlam, in his 1969 policy speech, said:
Australian employees can no longer tolerate a situation in which industrial action is made a criminal offence and where all employees from airline pilots to tram drivers, bank officers and building labourers, are liable to criminal proceedings and penalties if their association or their union even contemplates direct action.
The ALP national conference of 1970 reversed its long-standing support for the powers and passed a motion opposing the powers.
Fines were still levied, but no unions paid them, more anonymous donors stepped forward and the penal powers became a dead letter.
The victory paved the way for further struggles. Renewed working class confidence and a rise in the number of strikes, to their highest level ever, saw wages rise by 20 per cent in the early 1970s. Industrial militancy spread from blue-collar to white-collar workers, particularly in the public sector.
Union membership surged by more than 20%.
The penal powers
Anti-union laws have been with us since the early days of capitalism, whether it was the Masters and Servants Act, the Combination Act or the laws used to transport the Tolpuddle Martyrs to Australia for “administering an oath”. The union movement began despite anti-union laws.
An unrestricted right to strike has never been part of Australian law.
In 1947, the Labour Chifley Government granted powers to the Arbitration Court to fine unions for taking strike action. This was the legislation which imposed the fines on the Tramways Union in 1969.
In 1949, during the coal miners’ strike, the Chifley Government jailed 7 strike leaders, sent in troops to break the strike and passed legislation which made it illegal to give strikers and their families financial support.
Now I want to jump forward to 2009 and the Rudd Government’s new Fair Work Act, which was passed on 20 March 2009.
Even though Rudd was elected after an extensive union Your Rights At Work campaign, with lots of television advertising against John Howard’s AWAs and Work Choices legislation, the Fair Work Act does little more to protect workers and our right to strike.
It allows industrial action to take place in only one circumstance – what it calls protected industrial action. To be protected the action must be:
· Action for a proposed enterprise agreement, but only about matters concerning the employer-employee relationship;
· Must not be pattern bargaining, that is it must not relate to more than one employer – as compared to the pre-Keating Awards which would cover an entire industry or type of worker, such as metal workers or Commonwealth public servants;
· After the expiry date of an enterprise agreement – ie there must not be any industrial action from the date on which an enterprise agreement is approved by the Fair Work Australia until it has expired;
· Must be authorised by a secret ballot, usually by the Electoral Commission or someone else authorised by Fair Work Australia;
· The employer must be given at least 3 days notice.
· Fair Work Australia may still order the action to be stopped if it might cause significant economic harm to the employer.
· The Minister can order any action to be stopped if it might endanger the safety, health or welfare of a part of the population or cause significant damage to an important part of the Australian economy.
Breaching any of these requirements or orders can result in civil penalties.
Protected industrial action is what I would call the comfortable armchair approach to industrial action. You’ve heard of “armchair socialists” – this is for “armchair union officials, with a strong legal bent”.
For any other industrial action, the Courts can grant an injunction to stop the action and fines can be imposed by the Courts.
This approach, of allowing protected industrial action closely tied to enterprise bargaining was introduced by Labour under Paul Keating in 1993 and continued by John Howard in the 1996 Workplace Relations Act.
The ACTU and Labour pushed for enterprise bargaining in the early 90s, under which, rather than all people working in the same industry being covered by the same award, each individual enterprise would negotiate independently with their employer.
This was given legislative form in 1993 with the Industrial Relations Reform Act, which provided for protected industrial action during a sanctioned bargaining period. Other strikes were unprotected and could lead to heavy fines for unions.
Enterprise bargaining did initially lift real wages, but needed to be effectively paid for by productivity improvements, that is, cuts to working conditions.
Changes to standard hours of work meant that the working day was longer and there was less penalty pay and shift loadings – weekend and evening work was now often at ordinary rates of pay. Part-time, contract and casual labour increased.
And we see the same even now. The current ATO agreement negotiations are continuing the trend of extending standard operating hours – supposedly to provide a wider window for client contact and more flexible hours of work, but also to reduce overtime expenses.
The ALP’s industrial relations policy, decided at its 2007 national conference, continues Keating’s strategy of an “industrial relations system based on driving productivity in our private sector”.
And then we have the issue of contracts with individual employees, or AWAs.
Even before Howard was elected, big business was using individual contracts to slash conditions and lock out the unions.
In 1992 CRA, now know as Rio Tinto, sacked 130 workers at its Weipa mine and imposed individual contracts and then continued to do the same site by site around Australia. Other employers followed suit.
But Howard’s legislative changes focused even more attention on promoting individual AWAs.
Employers were not required to recognise unions. Awards were stripped back, unfair dismissal laws no longer applied to businesses with less than 100 workers and secondary boycotts were prohibited.
In its first two years of operation, Howard’s Work Choices resulted in 62% of minimum wage workers suffering a decrease in their real wages as a result of the Australian Fair Pay Commission’s determinations.
The gender pay gap widened. Industries that employ large numbers of women (such as retail and hospitality) suffered stagnant real wages or even declines. On average, women in 2004 earned 87 cents for every dollar earned by men. This had decreased to 84 cents by 2007.
And then we have the building industry.
In 2005 the Australian Building and Construction Commission was set up, under the Building and Construction Industry Improvement Act, to intimidate, harass and disrupt unions in the building industry.
It could impose fines of $110,000 on organisations and $22,000 on individuals. Compensation could be awarded to parties affected by industrial action. It could question workers who had no right to remain silent.
Jail terms of up to six months could be imposed for those refusing to attend or answer questions.
Within 2 years it had mounted 64 prosecutions. There have been many instances of fines and intimidation. This CFMEU bulletin outlines some examples.
Union delegates have been sacked for daring to insist that previously agreed health and safety conditions were enforced and workers taking action in support fined.
In March 2009, fines of $46,000 were handed down against the AWU for illegal stoppages by construction workers at the Lake Cowal Gold Mine near West Wyalong in 2005. They also fined an AWU delegate $9,000.
Work Choices limited the right of unions to enter onto work sites. Noel Washington, from the CFMEU, had to hold a lunch time union meeting off site to talk to his members. Even then the Australian Building and Construction Commission demanded he attend a meeting with them to tell them what was discussed.
He refused and was charged with a criminal offence under the ABCC Act for doing so.
In a victory for building unions the charges were recently dropped.
Deaths on construction sites have soared – now at one a week, and over 50 injuries a week.
In contrast there were no deaths on Victoria construction sites in 12 months in 2004 to 2005.
Yet even before the election, Rudd had said that the ABCC would remain in place until 2010, and that its powers would be rolled into a specialist division of Fair Work Australia.
The recent Wilcox report into the ABCC recommended it retain its powers, a recommendation Rudd and Gillard gratefully accepted. Disgracefully, in an industry where one worker is killed a week (up markedly since the ABCC came into existence) Wilcox did not mention safety once.
As the general strike over the jailing of Clarrie O’Shea showed, it is possible to make anti-union laws a dead letter, but it does require the solidarity and confidence to deny these laws.
There are more recent examples of such action.
One example was the 1998 Waterfront dispute. Patrick Stevedores sacked its wharfies and replaced them with scabs. In Melbourne and Fremantle, mass pickets, supported by other unions and supports, effectively blockaded the wharves and prevented the movement of containers.
Thousands of unionists backed the wharfies. If the Maritime Union was beaten, no union was safe. Even before the sackings, 12,000 construction workers in Melbourne had stopped work in support and AWU members in the oil industry had promised to strike if Patrick’s workers were sacked.
After the sackings, warehouse employees, building and construction workers, truck drivers, metalworkers, vehicle workers and coal miners all stopped work and turned up in large contingents. Each union was rostered to provide picketers for particular time-slots.
The Queensland TLC was swamped with faxes from unionists demanding State-wide industrial action.
At any one time hundreds of workers and supporters were on the Melbourne picket line and when there was a tip off that police would be arriving, thousand flocked to the docks, arms linked behind barricades of concrete blocks, cars and railway tracks.
No cargo moved in or out. The shares of Patrick’s owners fell by 13 per cent.
Despite the injunction against the Melbourne picket, the sheer size of the union mobilisation in Melbourne made the police unwilling to act.
In Sydney, the police were completely outnumbered and when they were ordered in to break up the lines, more than 160 took sick leave.
At a Trades Hall delegates meeting on whether to endorse the action a socialist shop steward from the Postal Workers Union spoke in favour of the motion:
Winning the dispute depended on having an effective picket; having a picket meant breaking the law; who was prepared to break the law to defend the wharfies? Thousands raised their hands.
On 23 April, the Federal Court ordered the reinstatement of the wharfies.
During the 2007 Victorian Nurses dispute, the nurses were trying to follow the protected industrial action process, but the Industrial Relations Commission said they could not have a ballot because the public sector nurses were technically employed by 143 separate health authorities.
The nurses held a mass meeting of 4000 to approve the campaign, but the proposed bans were not protected and the bans were not legal.
The Commission prosecuted the nurses.
Labor Premier John Brumby threatened the nurses, saying that their bans were unlawful and they would be fined up to $6,000 each under WorkChoices. Their pay was docked even though they kept most beds operational.
But the nurses refused to back down. The Government improved its pay offer and agreed to provide an additional 500 nurses. All court action seeking fines was dropped and the union recruited 2500 new members.
The building workers
And an even more recent example of workers taking action in the face of anti-union laws was in Melbourne a few weeks ago, as reported in this edition of Socialist Alternative.
There is a picket line at the Westgate bridge in a dispute over the sacking of workers who refused to work at lower pay rates.
Workers who would normally be paid at the $35 an hour mixed metal rate, were told they would only be paid at the $23 an hour civil rate. There would be no penalties for starting work at 4am.
Jerome, a builders labour, reported that the phones started ringing as construction sites around the city decided to go down to the picket line in support, as the word had got around that more scabs and materials were being brought in. 2,000 workers boosted the picket line.
It was decided to allow the scabs to LEAVE the site, but they had to walk through a rather unfriendly crowd.
The day before 25,000 construction workers around Australia had protested the worsening safety conditions on building sites and reaffirmed a decision to refuse to cooperate with requests from the Building Commission.
So what are the key points.
Labour is not the answer.
They are just as bad at imposing anti-union laws, attacking the right to strike and allowing workers wages and conditions to deteriorate.
Union officials and the ACTU’s function in life is to be the arbiter between the bosses and workers.
They want to ensure that the bosses are forced to talk to them, but can be too willing to compromise and unwilling to take strong action, especially in the face of the possibility of court action and fines.
But if there is a wider campaign or a strong push from union militants or rank and file activists, they can be pushed into action.
Workers will take action to protect unions and their working conditions.
And it is during times of action that workers will join unions, not because of discount shopping vouchers.
Under the capitalist system, especially in times of economic crisis, the interests of bosses and workers are diametrically opposed.
Bosses will try to hold down costs and increase productivity and workers need to stand together in solidarity and be prepared to take action to defend their wages and conditions.
Under Labor’s ‘Fair’ Work laws workers can be jailed or fined for taking industrial action. Australia is still a rich person’s country.
An injury to one is an injury to all. Concerted and wide spread industrial action can smash Labor’s anti-worker ‘Fair’ Work Act and its restrictions on the right to strike.