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My Union Right or Wrong.
A history of the Ship Painters and Dockers Union 1900-1932
By Issy Wyner


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Chapter Ten: Arbitration --- But Exclude Lawyers

Some twelve months after its reformation, it was reported to a meeting of the Union that the Labor Council had decided to send a deputation to the Premier "to urge on him the passing into law of the Conciliation & Arbitration Act" which the meeting agreed to. (Minutes, 9/4/1901)

Indicative of the Union’s attitude towards the arbitral authorities (prior to the Commonwealth Act coming into operation), a month after the Act was reported on, the Union decided to support the Ironworkers Assistants in their strike for a wage of seven shillings per day (Minutes, 20/5/1901). And in what was to become a lengthy strike, the Union supported a proposal by the Rev. Blair and Mr. McDougall to arrange for arbitration of the Ironworkers’ issue outside the Court (Minutes, 1/7/1901). It was later reported that the Ironworkers had accepted this offer of private arbitration, and the strike had ended with an agreement to accept the decision of the two arbitrators and for the matter to be finalised within a month of a resumption of work. (Minutes, 15/7/1901).

In January, 1902, the Secretary, Bob Mahony, explained to the members the main points of the Arbitration Act as it then stood, and it was decided to call a Special Meeting for the following Monday night to discuss the matter and decide the advisability of registering under the Act. (Minutes, 27/1/1902). At that next meeting, the matter was debated and

….it was moved by Mr.Talbot & seconded by Mr.Coles that it is advisable to register under this Act & that this meeting agree to such registration.

Several questions were asked by the members in reference to the working of the Act.

Mr. Brennan moved that we take a referendum on this matter which was ruled out of order by the Chairman & a division being claimed the vote was taken by that means & resulted in an almost unanimous vote in favour of registering under the Act. (Minutes, 3/2/1902).

As well, the meeting decided that the Management Committee prepare a revised set of working Rules "to suit the Arbitration Act".

A Special Meeting of the Union elected Robert Mahony and David Jno Walton as the Union’s delegates to the meeting of the group of unions which would recommend the employees’ representative for the Arbitration Court body. This body would then comprise an employees’ representative, an employers’ representative and a Judge of the Supreme Court, and would deal with all industrial matters referred to it. Having elected the delegates, the meeting then made two apparently contradictory decisions. First, it decided

That the delegates appointed be allowed to use their discretion in voting for the Employees representative in Arbitration Court.

This was followed by a decision

That in the opinion of this Union Mr. Sam Smith is the best man to represent our interest in the Arbitration Court. (Minutes, 10/3/1902)

Sam Smith held a number of positions during his career: Secretary of the Seamen’s Union; President of the Sydney Labor Council; President of the Political Labor League; Sydney City Council alderman; member of the Marine Board; Member of Parliament. (See biographical note in Appendix 8(16))

While these decisions were made by the Union for participating in statutory Arbitration, the question of support or otherwise for the Arbitration Court involved one important issue raised by the Union: The Labor Council Minutes for 22nd and 29th May and 15th June, 1902, as well as the Executive Committee’s minutes of 28th May and 16th July, 1902, take note of the Painters and Dockers Union having "tapped traditional prejudice in gaining Labor Council support for the purpose of excluding lawyers from arbitration proceedings". (In Case of Oppression, by Ray Markey). However, little was done in this direction so that, for the 1916 interstate conference of unions scheduled for Hobart, the Union adopted Talbot’s motion

That this Union suggests to the Conference that the Legal profession be excluded from all Arbitration Court business. (Minutes, 9/3/1916)

In 1904, discussions were being held between the Union and a similar organisation in Victoria with the possibility of joining forces. The Secretary of the Shipwrights Union was authorised to act as liaison officer between the two organisations and he reported to a meeting in May that the Victorian body had decided "to let the matter stand in abeyance until the passing of a Federal Arbitration Act" (Minutes, 2/5/1904). The Federal Government was in the process of legislating in this respect and, in fact, the Commonwealth Conciliation and Arbitration Act was assented to on 15th December, 1904, "to prevent and settle industrial disputes extending beyond the limits of any one State" (a limitation imposed by the Constitution) and an essential part of the new Act was the requirement for union rules to make provision for such matters as elections of union officials. Jim Hagen records in his History of the ACTU, that the Act was passed by a "Liberal Protectionist Government kept in power by Labor votes".

Prior to the introduction of the Act, the delays and frustrations from employer tactics under the old legislation were widespread and

By 1904, despite the determination of twenty-five awards covering 10,000 workers, the court was ‘in a state of collapse’ because of appeals and the delays they caused, which meant that there was a two-year wait for an appearance. (In Case of Oppression, Ray Markey, p.135). (see also Appendix 6)

Ian Turner, in his Industrial Labour and Politics, gives some of the history of the Act’s passage through Parliament, pinpointing, at the same time an important aspect of union attitude:

The Commonwealth Arbitration Act did not produce so much contention, partly because the penalties which it provided were seldom invoked, and partly because of the sympathetic administration of the Act by the Court’s second president, Mr. Justice Higgins (the first was Mr. Justice Cohen). The unions had strongly urged the legislation, which was denounced by the employers as ‘socialistic’. It was first introduced by the Barton government, with Labor support, in 1903. One parliament, three governments (including the short-lived first Labor government led by J.C. Watson) and eighteen months later, it became law.

It would appear closest to the facts to state that while the Labor Party and union officialdom strongly supported a form of arbitration law which promised improvements in wages and conditions and which had the force of law behind them, the rank and file viewed with great wariness and even hostility the proposals for compulsory arbitration.

….apart from the positive aspects of state arbitration, its compulsory nature always implied the need for penalties of some kind in order to enforce awards and to fulfill its purpose of prevention of strikes…. Partly for this reason, a minority of unionists, mainly socialists, and well-placed tradesmen, persisted with their opposition from the 1890s, but most of these opponents were not represented on the Council. For instance, the small Felt Hatters’ Society initially refused to register under the Act, and the Painters and Dockers tapped traditional prejudices in gaining Labor Council support for the purpose of excluding lawyers from the arbitration proceedings, especially since they made the process so much more expensive. (Ray Markey, In Case of Oppression, p. 102)

As the arbitration system expanded, it became obvious that the rank and file of the unions did not regard it as an alternative, but perhaps more as an adjunct, to strike action, and the number of strikes indicates that.

The traditional view is that the 1890s depression and the employers’ victories in the major strikes between 1890 and 1894 forced the weakened unions, with the assistance of the fledgling Labor Party, to drop their hostility to the state and support arbitration legislation….. Labour pragmatically accepted it, not as a replacement for the strike, but as an alternative during a period when labour market conditions did not favour direct action. Ray Markey has also questioned the traditional view, by highlighting the opposition of socialists and some unions…. However, his suggestion that ‘dogged resistance’ by rank and file unionists delayed the adoption of arbitration by labour in New South Wales is overstated…. (Australian Labour History, Greg Patmore)

Overstated or not, the constant resort to strike action by the rank and file of various unions shows that they did not regard arbitration as the ultimate means of resolving their many and varied industrial problems. And the more that compulsory arbitration proved costly or unsatisfactory in its results, or slowed down by employers’ tactics and the multiplicity of claims by unions, the more the need to retain and use the strike weapon became confirmed and put into practice.

By February, 1905, the Secretary of the Painters and Dockers Union, Bob Mahony, had reported that the Federal Arbitration Act had become law, a Federal Registrar had been appointed and "it would be as well for the Union to procure copies of the Act & set a night apart to discuss the advisability of registering or not and his advice was taken up by a motion to obtain copies of the Act. (Minutes 6/2/1905)

In August, 1905, the Union sent a donation to the Tailoresses’ Union to help defray the costs of taking cases to the Arbitration Court for breaches of their award by employers "whereby their members were sweated". Sympathy for the women’s cause was added to by the costliness of fighting the employers through the Court. At the same meeting, consideration was given to the Union’s long-running battle in the Court against the Adelaide Steamship Company. The Union’s solicitors, Brown and Beeby, advised of their fault in the issuing of summonses and seeking advice on whether to re-issue the summonses. In the debate which followed the report

Mr. Watters said he was in favour of letting the case drop as it was so long ago and it would be rather awkward to procure witnesses.

Mr.Talbot spoke against the motion and said it would in all probability be six or eight months before the case would be heard and we would not know where our witnesses would be by that time…..

The motion to re-issue the summonses was defeated by 40 votes to 30. (Minutes, 7/8/1905). Thus, while it supported the Tailoresses in their approach to the Court, it did not consider its own case as worthy of further prosecution through the Court.

On 30th October, 1905, the Union decided to make a donation to the Sinkers Union (Balmain Miners) towards the fines imposed on some of its members convicted for "intimidation in their dispute with the mining company". It is interesting that, even in those early years of the new century, workers could be and were prosecuted and convicted for actions associated with their strike, including the manning of picket lines, and Labor politicians were promising that if they ever gained power they would get rid of any such discriminatory laws. Instead, however, these laws have grown more and more draconian, and the promises continue. Unions have been prosecuted and fined, officials fined and gaoled, and never has there been any attempt to relieve the unions of anti-strike legislation. Regardless of the political complexion of the Government, in the State and Federal spheres, the unions have continued to be hamstrung by such legislation.

In 1910, the Union’s first meeting of the year received advice that the Victorian Dockyard and Ship Labourers Union objected to the proposed formation of a Federation, on the grounds that the Rules for the new organisation contained reference to Arbitration! (Minutes, 3/1/1910)

Some years later, in 1914, the Secretary, reported to a meeting of the Union that he had been discussing with Newcastle employers the possibility of establishing State-wide award coverage and at a later meeting he was able to report that the employers "did not desire to oppose the Award" (Minutes, 6/4/1914). This move, generally referred to as the "common rule", was an important provision, which facilitated the Union’s approach to employers who were not covered by the Award. A similar provision in Federal Awards was always rejected by the Federal Court. (see Appendix 6(d))

At the same meeting, Mahony reported on attending a hearing of the Painters and Dockers’ Wages Board, where the Award had been adopted but, by majority the Board decided that the Award should remain in operation until February 1917. (Minutes, 6/4/1914) Setting the Award for a period of three years was a matter on which the Union was always discontented, considering that the nature of the industry demanded an annual review.

Hostility towards the Arbitration Court by the Labor Council, found expression in 1919, when unions were advised by the Council not to register as required under the Act. The Painters and Dockers Union supported the boycott and endorsed Mahony’s report that he had not sent any returns to the Registrar. This brought threats from the Department of Labour and Industry of action to be taken if the Union persisted in continuing the boycott. In this regard, the Union was advised of a special meeting of the Labor Council to deal with the matter, other unions having been threatened also. (Minutes, 23/6/1919) (See Appendix 11(h)- Ignore Industrial Registrar

At the beginning of 1926, the Management Committee was advised by the Secretary, Jack McDonald, that

The Attorney-General’s Department of the Commonwealth of Australia (had written re) two outstanding accounts viz., £8-11-0 and £8-17-0….for transcript of shorthand notes supplied by the Reporting Branch….if the two accounts were not paid within fourteen days….would be placed in the hands of the Commonwealth Crown Solicitor for collection…. (Minutes, 5/1/1926)

McDonald’s report also included a suggestion from the Secretary of the Victorian Branch of the Federation, Moloney, that the payment of such accounts should be shared by the two Branches and this was adopted by the Management Committee. As Court appearances increased and cases became longer and longer, the cost of transcript, essential for Arbitration purposes, became greater. This remained an issue which rankled with unions for many years, until the Whitlam Government in the 1970s relieved both the unions’ and the employers’ organisations of the requirement to pay for transcript.

In the following year, after the defeat of the Lang Labor Government, McDonald informed a meeting of the Union that he had been sent for by Mr. Kitching, Under Secretary, who

informed him that the fine imposed on the Organisation for an illegal strike by Judge Curlewis had not been paid and had been referred to him…. owing to a change of Ministry. It had been understood that the fine had been remitted by Mr.McKell owing to correspondence being forwarded to him but such had not been the case and he asked that the fine be paid.

The President stated that he and Mr.McDonald met Mr. Kitching shortly after the fine had been inflicted and he had asked them to pay as it was only a nominal fee inflicted where a fine of £100 could have been imposed.

A motion was then moved, seconded and carried

That we refuse to pay the Fine inflicted on the Branch by Judge Curlewis. (Minutes 8/8/1927)

A month later, Mahony reported to a meeting on a case concerning Walsh Island in Newcastle, which was set down for the next day. The Chairman of the Board hearing the case had received advice that the £10 fine had not been paid and until it was, the Union was in contempt of Court and the hearing could not proceed. From this report, O’Keeffe and Lannen moved the motion, which was carried

That the fine be paid on sufferance on the ground that it is the only way to get over the difficulty at Walsh Island. (Minutes, 5/9/1927)

Delegates to the Labor Council, reported to a meeting in 1928, that the Council had heard an address by E.G.Theodore, MHR, on the Bruce Government’s amended Industrial Bill, passed in 1927 and effective in 1928. (Minutes, 31/1/1928).

While some of its provisions may have been regarded as useful for union purposes, the Bill generally was viewed as dangerously aimed at union/industrial organisation, particularly with the powers to enforce obedience of Court orders, to interfere in union affairs and to act against individual union members. The new Act required the Court to take into account any possible economic effects likely to arise from the granting of an application for an increase in the basic wage, or other improvements sought by a union, and this cut across the essential principle established by Justice Higgins of taking into account the basic needs of workers to live like human beings.

The Labor Council had decided to call the various Groups of unions together to discuss methods of defeating the Bill. In March, 1929, a call from the Labor Council for financial assistance was received, "to fight the proposed drastic amendments to the Commonwealth Conciliation and Arbitration Act" and £1.1.0 was voted for the cause. At the same meeting, a request for financial assistance was received from the ACTU for a proposed campaign in view of the

seriousness of the proposed amended Arbitration Bill and in view of its dangerous nature to the whole trade union movement, decided to launch an intensive campaign against the Bill.

The meeting decided that this was a Federal matter and recommended that the Federation should donate £10 towards the campaign. (Minutes, 5/3/1928)

At the outset of 1929, Mahony, as General Secretary, advised the Branch that under the new Arbitration Act, he was required to furnish the names, addresses and occupations of the members of the Management Committee; the names and addresses of all members of the Union; a copy of the Balance Sheet and a Statutory declaration by the Secretary that the information was correct. A "severe penalty" could be imposed for failure to comply. (Minutes, 21/1/1929)

In 1929, letters were received from A.E.Turley, General Secretary of the Waterside Workers Federation and G.E.Moate, General President of the Marine Stewards and Pantrymen’s Association, calling for a protest against the Federal Government’s moves to abolish the Federal Arbitration Court and, despite hostility over the Court’s many reactionary decisions and calls for the dismissal of the current Judges rather than the whole system, the Branch decided to ask the Federation to give support to the proposed protest. (Minutes, 22/7/1929). The protest was taken up by the Labor Council which called a special meeting "to combat the attack by the Federal Government on Arbitration" and the Union was represented at the meeting by Bill Swadling. (Minutes, 19/8/1929.) McDonald reported to the meeting on 2nd September, that he had attended a meeting of the maritime unions which had called on the Federal Government to retain the Arbitration Court and to withdraw the 1928 amendments to the Arbitration Act.

Early in 1930, a meeting of the NSW Branch of the Union received correspondence from the Victorian Branch, enclosing a number of motions which it had submitted for inclusion in the Agenda of the forthcoming Australian Trade Union Congress. Among the motions submitted were:

  1. That the Federal Government be requested to repeal all the 1928 amendments to the Commonwealth Conciliation and Arbitration Act.
  2. That provision be made in the Conciliation and Arbitration Act for Preference of Employment to Members of Bona Fide Organisations registered under the Act.
  3. That notwithstanding anything contained in the Commonwealth Conciliation and Arbitration Act, the Court shall not have jurisdiction to make an Award increasing Standard Hours of work in any industry to more than (44) forty-four per week, or where the standard hours of work in any industry are less than (44) forty-four per week, increasing the Standard Hours of work in that industry.

The Branch decided to adopt Swadling’s motion that the first and third motions be supported and that, with regard to the second motion, the Victorian Branch’s attention be drawn to its reference to "bona fide organisations" because the NSW Branch was

A bit doubtful as to whether that could stop any members of Organisations brought into existence by the employers (undoubtedly having scab unions in mind!)(Minutes, 3/2/1930)

In 1930, in the midst of the Depression, with the Court’s general anti-union position (increasing working hours from 44 back to 48 per week and other attacks on wages and conditions), the Victorian Branch of the Union sent copies of a petition addressed to the Hon. J.H.Scullin, Labor Prime Minister, "respectfully requesting his Government to remove the Judges constituting the Arbitration Court". The meeting adopted the petition. (Minutes, 27/10/1930). This issue was taken further by a meeting of 45 unions, convened by the ACTU in November. Among the decisions, which McDonald reported to the Management Committee of the Union, the 45 unions had declared by an overwhelming majority

That this conference condemns the Federal Government for its refusal to remove the Federal Judges who set aside the Federal Awards and are endeavouring in every way possible to lower the conditions of the workers. (Minutes, 24/11/1930) (See also Appendix 13(h))

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