Penal Powers: Then and Now
Bill Posters & Bob Briton
On the 10th of August 2015, over 250 workers either picketed or stopped working at a Melbourne warehouse belonging to a subsidiary of Woolworths. The workers were out in the cold blocking shipments to or from the warehouse in order to protect their jobs from the creeping casualization affecting workers across Australia. Four days of industrial action lead by the National Union of Workers (NUW) brought the recalcitrant bosses to the table for the signing of an agreement to limit casual labour hires. Four years later, the Federal Court, in a case brought by the Fair Work Commission (FWC), slapped the NUW with a $73,000 fine and ordered over $100,000 to be paid in compensation to the Woollies subsidiary[1]. This is just one among many recent examples of Australia’s industrial relations “independent umpire” attacking unions for defending workers.
“The practice of using fines and court orders to punish working people for exercising their democratic right of association and to withdraw their labour is nothing new.”
The renewed vigour with which unions are being harassed today harks back to another sordid period in Australian history: the second Menzies government.
In the lead up to the 1949 Federal election, ALP governments at both state and Federal levels attempted to suppress the union movement through a combination of state interference in union ballots, new Arbitration Court powers and emergency legislation. In 1946, the ALP government of Queensland ordered the state’s Arbitration Court to usurp the rights of unions to conduct their own ballots. One such court run debacle of a ballot saw papers mailed to deceased and ex-union members. A later Queensland fiasco involved the ALP government enacting emergency powers allowing police violence against striking rail workers. At the Federal level, the Chifley ALP government granted “contempt powers” to arbitration courts, allowing them to jail Communist Party greats such as Jack McPhillips and Ted Roach for daring to criticise court decisions. The most egregious attack on unions were perhaps the 1949 emergency powers that made it illegal to support striking miners, which resulted in the raiding of strike funds, the jailing of numerous union officials and the ALP government’s use of soldiers as scabs. It is under these conditions that the Menzies government came to power.
From the time of its election, the Menzies government was openly opposed to the union movement. Rather than taking unions head on like the ALP had in the late 40’s, the Menzies government preferred a “death by a thousand cuts” strategy where militant unions would be bled dry by fines while less well organised workers would be cowed by the threat of penalties. The first step of this plan was to, as Minister for Labour Harold Holt stated, “put teeth into the act”[2]. From 1951, the Commonwealth Arbitration Act was amended multiple times to add harsher penalties for striking workers and their unions. New courts such as the Commonwealth Industrial Court were also established to specifically handle penalties on unions. Sections 109 and 111 of the Commonwealth Arbitration Act allowed for the court to order workers and their unions not to strike and then punish them with fines or jail time for refusing to comply. McPhillips pointed out how these orders and fines were basically impossible to defend against in court by citing Judge Eggleston who said, “When the employer comes along and says there is a strike current, then whatever the motives for the strike, it becomes very difficult for us to refuse such an order …”[3]. The court also had the power to indefinitely ban industrial action such as it did against the Waterside Workers Federation (WWF) in 1960. Any illusions about the impartiality of this court should be dispelled by the fact that its Chief Judge was none other than the very same Attorney General who introduced the legislation that created the court!
From 1950 to 1963, the Menzies government’s penal powers robbed Australian unions of at least £66,000 in fines and legal fees. A few examples out of the hundreds of fines handed out included in 1955 when the Boilermaker’s society was fined for levying its members to support striking iron workers and a separate case where Melbourne brewery workers were fined for imposing bans on overtime and weekend work. Individual workers were punished too, such as in a 1958 case of two union officials who were fined for advising workers to stop work over safety concerns. Another example involved two union officials who were fined for encouraging members to use “go-slow” tactics at work.
Of course, it wasn’t just federal acts and courts punishing workers. State bodies such as the WA Industrial Tribunal and the NSW State Industrial Commission also handed out fines to striking workers and their unions and threatened unions with other punishments such as de-registration. Industrial courts and the Commonwealth Arbitration Commission (CAC) took revenge on workers who went on strike to improve their conditions. In 1962, the WA industrial court claimed that it refused to include a “preference to unionists” clause in the award because of the strike action unionised workers had previously taken. Meanwhile, the CAC agreed to a 10% margin increase for all wharfies except those based in Sydney and Melbourne because those workers had gone on strike. The WA Tribunal also issued court orders to prevent workers from even quitting their jobs without the boss’s permission!
Just as building workers are the target of enhanced union-busting laws today, so too were wharfies the main target of the Menzies government. In 1961, the Stevedoring Industry Act was amended to introduce a long service leave scheme that directly punished workers by deducting 30 days of “qualifying time” for each time they participated in industrial action. The Stevedoring Industry Authority was also established with the power to “suspend” workers who engaged in industrial action. Suspension from work could be converted into four days loss of “attendance money” which was an important element of a wharfy’s award guaranteed pay. These fines cost wharfies £1.3 million of attendance money!
During the Howard years, penal powers returned with a vengeance and have been a feature of Australian industrial relations ever since. Just as the Menzies government amended the Commonwealth Arbitration Act, the Howard government introduced WorkChoices and subsequent Labor and Liberal governments have kept or added penal powers.
Labor may have dialled back some of the powers of the Australian Building and Construction Commission (ABCC) – a secret police force established in 2005 to cripple the effectiveness of the industry’s most militant union, the Construction Forestry and Mining and Energy Union (CFMEU) – but they didn’t get rid of it. The ABCC was cynically renamed Fair Work Building and Construction (FWBC) but its core business remained the same.
“Labor PM Julia Gillard insisted at the time that her government would keep a “tough cop on the beat”. Her language would have been music to the ears of the ruling class that maintains bourgeois governments as committees of management for their system, to maintain rules for competing capitalist interests but chiefly to crush the organising capacity of those they exploit – the workers.”
In 2016, the Turnbull Government succeeded in restoring the ABCC, with former workplace relations minister Eric Arbetz commenting that they had put a “tough cop back on the beat”[4]. Labor or Liberal, the obsession with being the “tough cop” that sticks it to workers and their unions remains. The newly invigorated ABCC maintained the FWBC’s legacy by bringing more anti-union cases to court. In 2017-2018, the ABCC secured $5.6 million in fines against the CFMEU[5]. In 2018-2019, it was another $4.2 million, accounting for 99% of all fines sought by the ABCC for that period. The ABCC chased unions to court so often and over such trivial matters that a Federal Court judge, presiding over a case where CFMEU officials visited a site to have a cup of tea with a mate, broke with class loyalty and stated, “This is all external forces that are beating up what’s just a really ordinary situation that amounts to virtually nothing” and “For goodness sake, I don’t know what this inspectorate is doing.”[6] Despite the rebuke, the ABCC continued with the case and will likely secure a fine against the CFMEU.
Copies of Howard’s anti-union WorkChoices along with its clauses establishing individual Australian Workplace Agreements may have been ceremonially binned in 2008 but its legacy remained. So do many of its objectives to further exclude trade unions from the workplace. This push has made remarkable gains in recent decades. Trade union membership in Australia has declined from around 2.5 million in 1976 to roughly 1.5 million. That’s a fall from 51 percent of workers to 14 percent. The figure in the private sector is much more alarming.[7]
Little has changed since the time of the Tolpuddle Martyrs. The words of puppets in business and government may be oilier but the objective remains the same. Despite the rebadging and minor changes of powers, the ratcheting up of anti-union legislation has continued in line with ruling class interests regardless of whether the country has a Labor or Coalition government.
A review of the history of the organised labour movement in Australia reveals that attacks on workers’ right have only been defeated by the most self-sacrificing and concerted resistance. Penal powers including the jailing of union leaders and the imposition of massive fines are not a recent phenomenon but a constant theme in the glorious history of trade union struggle in this country.
Workers’ ability to struggle has been blunted to a degree by reduced union membership density. Building member number is a top priority. This task will be difficult given how unattractive membership has become due to the unwillingness of social-democrat led unions to defend workers’ interests with the required level of boldness. But it must be done. The only way the current “rules” identified in the ACTU’s Change the Rules campaign will be defeated is through a commitment to breaking them.
An obvious, necessary element of this fight back will be the revival of the spirit of defiance shown by workers in the past and still exhibited by some. A knowledge of previous struggles and victories is essential. But another vital component are the lessons about the limitations of social democracy and how the road chosen by its representatives is a dead end. At best it will return workers to the point at which the ruling class stepped up its strategic legislative and ideological attack.
Marx once recalled a comment by Hegel that “history repeats itself, first as tragedy, second as farce.”[8] Communists should not aim to lead workers into an arduous though farcical battle. The connection between the achievement of socialism, i.e. working-class state power, and lasting gains must be made real. These are the mighty tasks to which the Australian Communist Party has committed itself.
[1] https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca1826
[2] McPhillips, J. (1963). Penal Powers cost unionists £1,000,000. Sydney: Current Book Distributors, p.14.
[3] McPhillips, J. (1963). Penal Powers cost unionists £1,000,000. Sydney: Current Book Distributors, p.24.
[4] https://www.abc.net.au/news/2016-11-30/abcc-passes-the-senate/8078242
[5] ABCC report 2017-2018
[6] https://www.afr.com/policy/economy/judge-turns-on-abcc-for-wasting-time-over-cup-of-tea-cfmeu-incident-20170312-guw6aw
[7] https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1819/UnionMembership
[8] https://www.marxists.org/archive/marx/works/download/pdf/18th-Brumaire.pdf