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
and
Lian Jenvey. Unions: we're itching for a blue; Socialist Alternative Issue 91, June 05
Whitlam's speeches are at
1969 and
1972
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)
And
Greg Mallory. Uncharted Waters: Social Responsibility in Australian Trade Unions (published by Greg Mallory in Brisbane, 2005)
See review at
Workers Online August 2005