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June 2006   

Interview: Rock Solid
Bill Shorten gives the inside story on the Australian Workers Union's involvement in the Beaconsfield rescue.

Industrial: Eight Simple Rules for Employing My Teenage Daughter
Phil Oswald bought up his kids to believe in their rights; so when his 16-year old daughter was told to cop a pay cut she was never going to take it quietly.

Politics: The Johnnie Code
WorkChoices is encrypted deep in the PM's political DNA, writes Evan Jones

Energy: Fission Fantasies
Adam Ma�anit looks at the big business push behind the 'clean nuclear' debate that is sweeping the globe.

History: All The Way With Clarrie O'Shea
The WorkChoices Penal Powers are the latest in a long line of penal sanctions against trade unions, writes Neale Towart

International: Closer to Home
If Australia can forgive its debt to Iraq, why not to Indonesia and the Philippines, write Luke Fletcher and Karen Iles

Economics: Taking the Fizz
While the Treasurer has been popping the post-Budget champers, Frank Stilwell gives a more sober assessment.

Unions: Stronger Together
Amanada Tattersall looks at the possibilities of strengthening alliances between unions, environmental and community organisations

Review: Montezuma's Revenge
Tommy Lee Jones directs and stars in a film about racism and retribution, writes James Gallaway.

Poetry: Fair Go Gone
Employers in the land rejoice, for we are girt by greed.


The Soapbox
The Beaconsfield Declaration
As the Prime Minister feted Brant Webb and Todd Russell, their colleagues were outside with a message to the rest of Australia.

The Locker Room
Run Like You Stole Something
Phil Doyle observes that there are some tough bastards out there.

The Westie Wing
That fun-loving friend of the workers, Ian West, reports from the red leather of the Bear Pit.

Class Action
Phil Bradley draws the lines between education funding and the current skills crisis.


When the Truth Hurts
Some rare moments of candour this week have vindicated all we�ve been saying about WorkChoices and more.


 Howard's Advocate Fesses Up

 Cowra - Work Slaughter Legal

 You're Killing Us - BHP Charged Again

 Revealed: Beaconsfield Led AWA Charge

 Warehouse Pushes the Envelope

 Independent Schools Push Class Warfare

 Spotlight on Howard�s Porkies

 PM Backs Visa Buster

 Sutton Wants Middle Men Probed

 ATO Recruiting for WorkChoices

 Taxpayers to Fund Ad Orgy

 New Deal on Canberra Menu

 Appeal for East Timor

 Activist's What's On!

 Free Kick
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All The Way With Clarrie O'Shea

The WorkChoices Penal Powers are the latest in a long line of penal sanctions against trade unions, writes Neale Towart

Flushed faces, angry faces, old faces, young faces, all chanting 'All the way with Clarrie O'Shea!' said protestors in Melbourne in 1969. Clarrie did walk free and his union did not pay the fine, although it was paid. This case lead to the penal powers going into disuse for twenty years.

It did not prevent the enactment and use of section 45D of the Trade Practices Act.

The penal provisions stem from the British Combination Acts, themselves actually repealed in 1825.The full title of this legislation is fairly straightforward on what they were about:

"An Act to Prevent Unlawful Combinations Amongst Journeymen to Raise Wages".

They didn't have spin doctors dreaming up WorkChoices then.

Despite this repeal the courts still harassed and prosecuted groups of organised workers. Unions were still deemed illegal because they acted to restrain trade, a big no-no as England was the mighty world power and crushed anybody who dared interfere with "free trade" in any shape or form ie interfered with the right of English industrialists to make money.

Eric Petersen in a very useful article looks at it this way

The law against administering an illegal oath, first used in a naval mutiny case in the 18th century, was invoked to prosecute a group of Luddites in 1811 (they were hung or deported) and famously in the case of the Tolpuddle Martyrs in 1834.

So unions continued to develop in various forms until 1871 when the next big legislative change came in at a time when the working classes were beginning to organise on a large scale, as opposed to the small underground groups and outside the domain of secret societies, Lodges and Friendly Societies.

The 1871 legislation was part of what Bob James sees as the workers choosing to become establishment organisations as opposed to groupings that remained outside the mainstream such as the friendly societies. Petersen comments that the

"Trade Union Act of 1871 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. Nevertheless, the carrot was attractive, and many unions registered."

The stick soon followed. The Conspiracy and Protection of Property Act (UK) of 1875 created a new offence of "besetting" (effective picketing). It also created new conspiracy offences, 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.

In NSW the Trade Union Act of 1881 was copied directly from the British 1871 legislation.

Petersen goes on then the Taft-Vale of 1900 as the next major legal attack on combination rights. This decision overturned previous conventions. It had been though you could sue union officials but not the union for civil damages. In 1900 the decision was a successful attempt by railway owners to sue the Amalgamated Society of Railway Servants. Legislation of 1906 in the UK made this impossible but in the newly federated state of Australia this did not apply and the injunctions and civil action against unions was never made impossible. Labor governments never, Petersen says, enacted legislation as was done in the UK that said Taft Vale did not apply. The Airline pilots had the decision quoted to them in 1989 dispute according to Petersen, when over $6m in damages was awarded against them.

The arbitration system enacted from 1904 in Australia was meant to be the panacea. It aimed to prevent strikes and picketing, so unions were not supposed to require these tactics. This enabled Tony Abbot, for example, to rail against unions use of the legislation when he sought to amend the Workplace Relations Act during his time as Minister.

Abbott speaking at a Building Industry Royal Commission press conference: "

"I think that the industrial tribunals lost their teeth back in 1969 with the Clarrie O'Shea case and the general fall into disuse of the so-called penal sanctions. I mean that's when the industrial tribunals ceased being effective tribunals and started to be glorified talk shops. I mean that's what happened.

And, look, you know if it really was an umpire, it would have an important role. The trouble is all too often it's not an effective umpire because it doesn't say what the law is clearly. And, if it does, it isn't able to control the players on the field. That's the problem.

And the interesting thing about most of the people who put the so-called umpire on this great pedestal is as soon as there's any suggestion to give the umpire more real power, they say, 'Oh, no, you can't possibly do that.'

I mean this government has tried to legislate to give the Commission more power to, for argument's sake, order cooling off periods. And naturally we haven't been allowed to do that. We've tried to give the Commission more power to order secret ballots, and again we haven't been allowed to do that.

So, look, we're all in favour of appropriate regulatory bodies. What we don't want is someone coming in there and trying to second guess what are appropriately decisions for the parties."

Here we see the dangers of the unions tying themselves firmly to Labourism and being seen as indistinguishable from the Alp. Abbot can effectively argue that it was the system we wanted, and we didn't stick to the rules, so its OK for him to change the rules in ways that suit him because we don't play the game anyway. The WorkChoices legislation continues to play the word games, just further loading the dice against workers.

Hutson's book outlined how unions were expected to abandon strikes, go-slows, bans and other direct action 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. If the boss puts on pressure, then workers are not permitted to withdraw their labour, they are permitted to hire a lawyer.

The bosses would rail against the system but found it very useful for example they could serve their own logs of claims- 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%.

Petersen quotes Ian Turner's work:


"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."

The Dog Collar Act of 1928 was an example of the penal potentials of legislation from hostile governments when unions are vulnerable.

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.

The Act was introduced following a strike that began in Brisbane and Melbourne amongst wharfies over the Beeby award. The Bruce government immediately began talk of criminal prosecution. The workers stayed out and were joined by workers in other ports. Te union was charged with inciting a strike and fined, which seemed to pull the executive into line but not the members.

This led the government to introduce licences (Dog Collars) for wharf labourers and to introduce sanctions against unions in the Crimes Act for disrupting "essential services". Most ports gave in but Melbourne stayed out. 1000 cabs were brought in and the unionist demonstrated. Police fired on the demonstrators killing one worker and wounding 3 others.

Timberworkers became the next target. The workers had won a 44 hour week for the industry this was varied for some I 1922 back to 48 hours. The union contested this decision for some years until in January 1929 Justice Lukin brought in one of the worst awards in the history of the system. It increased hours for all to 48, reduced wages and increased the employment of youth at lower rates, thus making work less safe, and cutting wages and jobs.

The called a strike and prosecutions and penal sanctions under the Arbitration Act were launched by the government against officials in Melbourne and Sydney. They also called for a secret ballot. 15000 papers were issued. Sydney timberworkers burned theirs outside Trades Hall and of the 6000 papers returned over 5000 voted in favour of the strike.

The government then prosecuted 39 skilled workers and ordered them to return to fix machines operated by scabs. The machinists refused. And the Arbitration Court didn't know what to do.. So the Federal government tried yet another tactic. Six strike leaders were arrested, and charged with conspiracy. They were acquitted by the jury.

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. The courts fined and imprisoned 32 timberworkers. The strikers were starved back in December 1929.

The coalminers were also attacked at this time, leading to the Rothbury dispute and more death/assassination by the forces of the state (see WO last month)

These actions were taken against unions by the conservative parties in government. The 1949 coal strike was a different matter.

An important feature of the post war ALP Government plan for the coal industry was the establishment of a Coal Industry Tribunal, a form of arbitration court for the industry, with powers of conciliation and arbitration and a general power to promote industrial peace within the industry. The Opposition leader, Mr. Menzies, in the debate on the Bill, said

"The penal clauses of the Bill are not such as to strike much terror into the Miners' Federation. Labour governments in the past have shown themselves to be notably tender towards the powerful mining unions and most unwilling to proceed to the mildest admonition, let alone to impose drastic penalties."

The ALP seemed determined to prove him wrong and did prosecute mining union leaders as part of the launch of the Cold War in Australia, with communism being blamed for industrial chaos.

Its 1949 the gaoling of jailing of communist Jack McPhillips (Assistant Secretary of Ironworkers Association) and a member of the Australian Council of Trade Unions (ACTU) panel preparing the basic wage case, set a precedent. On 22 February, the Court had adjourned its hearing of the case until 7 March, and a public meeting was called on 3 March to protest against the dilatoriness of the Court. In his speech, McPhillips was alleged to have declared, 'This issue will be determined outside the Arbitration Court. We do not trust the people in charge of the Court to play the game'. McPhillips was charged with contempt of the Arbitration Court, and, after a two-day hearing, was found guilty and sentenced to one month in Long Bay Jail. Protests against the jailing of McPhillips exacerbated industrial turmoil and ructions within the labour movement.

The Stevedeoring Industry Commission (SIC) was also an industry-based body aimed squarely at militant workers, presided over by Arbitration court judges proud of their new powers and who acted to win the cold war for conservative forces.

The Wharfies had Jim Healy and Ted Roach on the SIC and he acted to stop penalties being imposed on Wharfies for class solidarity - ie they struck in support of the gaoled Communist Party figure Lance Sharkey over the coal mining dispute. The other member was arbitration court Judge Kirby. He called on wharfies to defy their leaders and return to work (thus seemingly showing contempt for his own tribunal). Wharfies had a long history of political action taken via their industrial position. Another point of the s45D legislation.

The WWF Federal Executive insisted on retaining the right to strike and representation by officers elected by its members; and it called a special meeting of the Federal Council to make authoritative policy decisions. The Labor Government was less interested in the WWF's democratic decision-making processes than exploiting anti-communism. The strikes over Sharkey and McPhillips were not about industrial issues, and the union's right to strike was not in question, ministers and the press proclaimed: wharfies were being misled by communists for ulterior political purposes. Despite the considerable influence of Industrial Groups within the WWF, the Federal Council unanimously reaffirmed the basic trade union principles of the right to strike and to elect its own representatives; and it confirmed the appointments of Healy and Roach to the SIC. It also endorsed the Federal Executive's directions to stop work over Sharkey and McPhillips, but only by ten votes to nine. Federal Cabinet responded by dismissing Healy and Roach from the SIC.

This Coal Strike Act drafted by Evatt was the bludgeon used to enforce Cold War controls. Healy and Roach were fined and then gaoled for refusing to pay fines and disposing of union funds when ordered not to. Roach said that

"'I am not prepared to accept the right of anybody to interfere in the domestic affairs of a trade union"'

When the miners were starved back to work Roach and Healy had to reaffirm acceptance of the Courts orders.

Roach was gaoled a few years later as judges had him marked, and ongoing campaigns by unions over hours and wages, and union frustration with the slowness of arbitration, made rank and file militancy a crucial issue. Roach remained in touch with the rank and file and did not appreciate having to be in the union office away from on the ground concerns. He toured the country to keep in touch and regularly criticised the arbitration system as a bad one for workers rights.

In this public role he was demonised by the Commission and the media and eventually gaoled for contempt in 1951. Sydney Wharfies campaigned for his release but were eventually forced by the courts to call off overtime and other bans. Roach later felt that the Communist Party had let him down by not organising enough publicly for his release. However Louis sees it as an example of the overwhelming power of the state and its attendant apparatus to act against what it sees as a danger to the system, rather than as failure of militant forces to organise. Roach was a victim of the Cold War.

Political interventions by engaged workers reached its peak in the 1960s and early 1970s, often despite the best efforts of union officialdom, let alone courts and governments.

The Seamen's Union actions against the Vietnam War are an example of the use of penal powers in political actions by unions, as with the anti-Communist attacks on Roach and the mining unions. The rank and file refused to load the Boonaroo and later the Jeparit when required to take cargo to Vietnam was an example and it was attacked for the communist influence.. The union declared that its members would work the ships for free if they were used to bring troops home from the "filthy, unwinnable war". This kind of action is ruled out these days, as Tony Abbot made clear in the same press conference quoted earlier when responding to comments about Green Bans (also now illegal):

"illegal industrial activity should not be pursued even for causes which might sometimes be regarded as good and worthy, the end does not justify the means."

The case of Clarrie O'Shea, leader of the Victorian Tramways Employees, and also a Communist Party figure (although the CP had by then split into Soviet and Chinese factions - O'Shea in the Maoist line).was the action that unified workers across the country, and forced the peak bodies to listen to the rank and file, and it arose at a high point of political conciousness and activity across the Australian community, unions included. The Seamen's action was not supported by their ally the WWF or other wharf unions, or by the ACTU who did a deal. The O'Shea case seems to have brought a wide range of issues to the fore.

Political campaigns on many civil rights issues along with increasing union militancy over wages and conditions tested the system t,hroughout the 1950s and 1960s. but the ACTU, whilst hostile to the penal sanctions but did not seek confrontation directly on the issue.

The Tramways Union had militantly defended and improved the conditions of its members. The union had accumulated 40 fines imposed on it by the Conciliation and Arbitration Court. Altogether unions across the country had piled up almost $300,000.00 I fines between 1956 and 1969.

Due to the inaction of Melbourne Trades Hall, twenty seven left wing unions had caucused together in response to the perceived attacks on unionism by the widespread application of fines. They called a mass delegates meeting for the day of the hearing that was attended by 5,000 delegates. After the meeting the delegates marched to the courthouse led by Clarrie O'Shea.

In court O'Shea refused to take the oath, then refused to present the union books, in line with the wishes of the members of his union, and was formally arrested and sentenced for contempt of court on Thursday May 15, 1969 and taken to HM Prison Pentridge. This led to immediate walk outs on the Thursday, and a general strike which paralysed Victoria on the Friday. There were two 24-hour stoppages in Victoria, involving 40 unions. All trains and trams stopped, delivery of goods was severely restricted, the power supply was cut and TV and radio broadcasts were disrupted. Protests and strike action also occurred in regional Victoria with the Geelong Trades Hall Council supporting the strikes and similar action in Bendigo, Ballarat, and the Latrobe Valley.

All together, about 500,000 workers struck across Australia on Friday, 16 May. The Trades and Labour Council of WA, the Queensland Trades and Labour Council and the United Trades and Labour Council of South Australia all called statewide general strikes. In Queensland, mass meetings or strikes occurred in 20 cities, while Trades and Labour Councils in Newcastle, Wollongong and Canberra called out members of affiliated unions. The Tasmanian Trades and Labour Council also refused to sanction any action, while 22 'rebel' affiliated unions representing 50,000 workers (80% of Tasmania's workforce) organized a general stoppage.

Protests calling for O'Shea's release occurred outside HM Prison Pentridge in Coburg over the weekend.

On Tuesday May 20, Dudley MacDougall, a former advertising manager for the Australian Financial Review, acting on "behalf of a public benefactor", paid the union's fines. Kerr ordered O'Shea to be released. Although the penal laws were not repealed, they were not used again.

The clauses were not revoked but they also were ot used again. Whitlam as ALP leader declared in his 1969 policy speech:

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. No other country in what the Liberals call the free world tolerates such a situation

The 1972 It's Time speech contained the promise that the ALP would

abolish penal clauses which make strikes in Australia, alone in the English-speaking world, a criminal offence.

Unions seemed more secure until the Mudginberri dispute and the fining of the AMIEU under s45D. The union defied the section but did not get full support from the ACTU, although seemingly following policy. This at a time when the secretary of the ACTU, at a time of the greatest influence on government its history, was very closely connected with the government. The union was fined and defeated in this case, whe nthere was not mass support across the country. The 1960s had long gone, and the onset of reaion following economic downturn in the 1970 impacted on social movements and concerns. Unions were seen as obstacles by many (with an ative long term media PR campaign against them since the dismissal of Whitlam) to the improvement in the job situation and the leadership was anxious to prove its responsibility. Unions perceived as undermining that role, such as the pilots, food preservers and meatworkers were sacrificial.

The argument that the Patrick dispute of 1998 was a time for reassessment neglects the very bad light waterside workers were seen in and the initial apathy by the pblic to their concerns and the actions of the government and Patrick Corporation. Whilst the PR campaign and community won a lot of support, it was a big call to say that a national stoppage but, as Bramble points out, there was a lot of civil disobedience and no-one was charged with illegal picketing. He feels that if union leaders had tken a stronger lead the legislation would have been a dead letter, as the O'Shea case made the earlier clauses a dead letter.

So is it time for the same sort of action?

Certainly the current campaign is aimed at raising awareness, perhaps a sort of formal consciousness raising exercise that could be seen as a the groundwork for sustained civil disobedience and the rewriting of laws.

The timing of phases of campaigning and the importance of maintaining a workers agenda as opposed to an ALP agenda are the crucial spokes to the wheel we must keep turning to enshrine rights of workers and people against the increasingly totalitarian concerns of business and its lackeys in governments across the globe.

L.J. Louis "The Cold/Class War, and the Jailing of Ted Roach," Labour History May 2004 (30 May 2006)

Eric Petersen The legal antecedents of the Workplace Relations Act: From the Plague to Reith

Tom Bramble. War On The Waterfront published by the Combined Unions Defence Committee, October 1998 and more recently his critique of current strategy in JAPE no 56, December 2005

On O'Shea see the Wikipedia article

Also see: Bramble (above) and The Tramways Museum Society of Victoria Inc: Melbourne Tramways: Union vs Management


Lian Jenvey. Unions: we're itching for a blue; Socialist Alternative Issue 91, June 05

Whitlam's speeches are at

1969 and


Some discussion of the Coal Industry Tribunal

Tony Duras Trade unions and the Vietnam warand was reproduced in part in

Workers Online February 2003

Jack Hutson. Penal Colony to Penal Powers (Amalagamated Engineering Union, 1966)

Other discussions of the 1960s and protest movements include

A Turbulent Decade: Social Protest Movements and the Labour Movement, 1965-1975, edited by Beverley Symons and Rowan Cahill (Published by the Sydney Branch, Australian Society for the Study of Labour History, PO Box 1027, Newtown, NSW 2005)


Greg Mallory. Uncharted Waters: Social Responsibility in Australian Trade Unions (published by Greg Mallory in Brisbane, 2005)

See review at

Workers Online August 2005

Go here for Tony Abbott's comments

Eric Petersen in a

On Friendly Societies go to Bob James' work

andGetting a Grip : the Roles of Friendly Societies in Australia and Britain Reappraised by Dan Weinbren and Bob James; Labour History 88 (2005): 60 pars. 30 May 2006


The Eight Hour Day 150th Anniversary Committee presents two conferences to commemorate the Eight Hour day

Working To Live: Histories of the 8 Hour Day & Working Life


New Standards for New Times? The 8 Hour Day and Beyond

Additional Conference events include:

A Walking Tour with Jeff Sparrow and Peter Love to important sites of 'radical Melbourne'.

A complimentary welcome reception will be held at the Ian Potter Museum, where a new exhibition: 'Under the Burning Sun of the Colony: The Eight Hour Day Movement' will be launched by Professor Stuart Macintyre.

A plenary session bridging the two conferences will be addressed by Professor Belinda Probert (Dean, Faculty of Arts, University of Melbourne)

A public panel on working life and time as part of Melbourne Conversations, City of Melbourne Public Lecture Series, in Melbourne's famous Capitol Theatre.

For more details see the brochure



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