Arbitration In Contempt

Legal Remedies Against Trade Union Conduct in Australia

Peter Costello

A. The development of laws governing trade union conduct

The laws governing trade union conduct in Australia stem from two independent sources---the common law built on the precedents of cases decided in courts, and the Statutes (both State and Commonwealth) enacted by Australian Parliaments. The Statutes are numerous and comprehensive and prevail over the common law where there is a conflict. Unless they expressly conflict with, or negate, the common law however it continues to operate as a separate independent stream of laws governing trade union conduct. This body of law is to be found in the judgements of Australian and British Courts handed down over the last one hundred and fifty years.

To fully appreciate the effect of this law it is necessary to trace the historical development of trade unions and the way in which the laws governing them developed in response.

During the middle ages England was largely a feudal society and there was little scope for the regulation of independent labour. Some of the first recorded controls on labour introduced during this period were passed in the wake of the Black Death which struck Europe and England in the mid 14th century causing a scarcity skilled labour. As might be expected, as a result of supply and demand, the price of labour dramatically increased. During the reign of Edward III the 1349 Ordinance of Labourers was issued and in 1351 the Statute of Labourers was passed. The object of these measures was to control the price of labour. During the 15th, 16th and 17th centuries similar statutes were passed with the object of controlling the price of labour. These statutes were mainly directed at skilled craftsmen who were self-employed rather than employees. During these centuries craftsmen began to join together in guilds with the object of maintaining the price of their labour. These guilds were different in nature to what we now know as modern trade unions since they consisted mainly of self-employed craftsmen. They might be characterized in modern terms as more professional associations than as trade unions.

The advent of the Industrial Revolution in Britain created the demand for unskilled and semi-skilled labour and the origin the modern labour force can be traced from that time. As the demand for labour began to increase the first trade unions, or combinations of workmen, began to develop with the object of increasing the bargaining power of labourers in respect of wages and conditions. During the period of the Industrial Revolution Britain entered the economic era of classic 'laissez-faire' liberalism. In 1776 Adam Smith published his masterpiece entitled 'The Wealth of Nations' and this work no doubt reflected the attitude of the times and contributed to the development of laissez-faire ideas in the late 18th and early 19th Centuries. One of these ideas was the notion that both labour and capital should be free to engage in mutually productive agreements for the benefit of each.

This concept was not unique in the area of employment. One of the fundamental common law principles established by the English Courts at this time was freedom of contract. This was based on the notion that all men should be free to make bargains with each other as they saw fit, and that the law should enforce such bargains. Unlike most Continental systems of law the English common law did not consider a promise to be binding unless each party received some economic benefit, or consideration, from the promise. Once the parties had come to an agreement, the law regarded it as fixed and binding only if there was consideration for the agreement. The common law concept of a contract was based on the notion of mutual economic bargain. The Courts did not require the consideration to be of equal value to each of the parties, all that was required was some consideration to each. It was thought that the Courts should not fix the benefit to be provided to each party or redress the rights which the parties themselves had fixed upon. If the agreement had been entered into without duress, misrepresentation, fraud or a similar element which was regarded as vitiating the free consent required of each party to enter the contract then the courts regarded it as binding and would not open up the terms and re-allocate the benefit to be obtained under it.

It might be observed that this principle both reflected the attitude of laissez-faire liberalism and no doubt contributed to it. Although reformist governments have from time to time modified the principle of freedom of contract it remains a fundamental principle of the common law today.

The combinations of workmen which began to develop at the end of the 18th century were regarded as antithetical to freedom of contract because their central object was to prevent the parties to a labour contract coming to free agreement. Their aims were to increase the bargaining power exercisable by one of the parties (labour) and to engage in common action in such a way as to force the hand of the other (capital).

This object was held to be in restraint of freedom of trade and therefore unlawful at common law. The rules of Trade Unions which sought to bind their members not to work except on approved conditions were considered to be in restraint of trade and unlawful.1 The Courts were even-handed in defending the sacred principle of freedom of contract and held that the rules of employer organizations which similarly offended against freedom of trade were unlawful.2

In order to prevent the spread of combinations the British Government had introduced the Combination Acts of 1799 and 1800, but these Acts were repealed in 1824. As from that time there was no Statute making Trade Unions unlawful associations but to the extent that they attempted to restrain freedom of contract they were considered unlawful by the common law.

As trade unions grew in power during the 19th century and began to exercise political influence, the British Government established a Royal Commission in 1867 to enquire into the reform of the law relating to trade unions. It was the minority report of that Commission that was accepted and led to the enactment of the Trade Union Act 1871. This Act has been described as the 'Charter of British Trade Unionism'. It provided legislative recognition for trade unions and legislative protection to their members. It reversed the common law position that the rules of a trade union were unlawful because they were in restraint of trade and it protected trade union members against criminal actions for conspiracy. The provisions of this Act have been enacted in every Australian State and take the form of the Trade Union Act 1968 in Victoria.

Further protection against common law liability was conferred on trade unions by the U.K Conspiracy and Protection of Property Act 1876. This Act protected trade union members against prosecution for criminal conspiracy in respect of acts done by them in furtherance of a trade dispute. This legislation was followed in all Australian States except New South Wales and became part of the Victorian Employers and Employees Act 1958. That Act was repealed in 1976 as part of a general statute law revision in Victoria. Although it is doubtful that it was intended to do so, that repeal has raised the possibility that union members or officials who combine together to do an act with the unlawful purpose of restraining trade may well commit a criminal conspiracy which is indictable at common law. To my knowledge there has been no attempt in recent years to bring any prosecution for criminal conspiracy but it would be arguable as a defence that notwithstanding the repeal of the Employers and Employees Act 1958 the offence is now obsolete. In any event the possibility of criminal liability only applies to acts done with the object of restraining trade and not to mere membership of a trade union whose rules may be in restraint of trade. If the latter was ever a criminal offence at common law that position was legislatively reversed by the 1871 British Act which has been legislatively re-enacted by all Australian States and is still currently in force.

In Williams v. Hursey,3 Fullagar J referred to this period of trade union history as follows: 'It is not, of course, correct to say that before 1871 every trade union was an unlawful association at common law. Apart from the numerous combination Acts, which were repealed in England by the Act of 1824 and not revived by the Act of 1825, there was no reason why employers or employees should not form associations for the furtherance of their respective trade interests. It was only if, and so far as, such an association offended against the sacred principle of freedom of trade that it incurred the disfavour of the common law. Any agreement which involved the imposition of restrictions on the conduct of trade or business was an agreement in unreasonable restraint of trade and void. And a trade union, or any other association, which had among its objects the imposition of such restrictions was regarded as an unlawful association whose rules and agreements the courts would not endorse or recognise. It its now well settled that the mere making of such an agreement or the mere membership of such a trade union was not illegal in the sense of being indictable at common law or in any other relevant sense'.

With the Trade Union Act of 1871 trade unions received recognition at law and protection against criminal liability. These reforms conferred valuable privileges on trade unions. The trade unions were soon to find out that privileges bring obligations. If trade unions were entities recognized by the law they could be sued in the same way as other legal persons. This principle was established in Taff Vale Railway Company v. Amalgamated Society of Railway Servants.4 In that case the Taff Vale Railway Company brought an action against the Amalgamated Society of Railway Servants and a number of its office bearers seeking damages in tort for inducing breach of contract. This tort was of general application. It was argued that since this law applied to ordinary persons, and since the 1871 Act had recognized Trade Unions as quasi legal persons, there was no reason why it should not apply to them.

Members of the Society had gone on strike and the Taff Vale Railway Company had arranged for other employees to take their place. The Society induced those other employees not to take up their employment and accordingly the Company was unable to conduct its business and suffered loss. It brought an action against the union to recover damages arising from its inducement to the strike breakers to breach their contracts.

As part of its defence the union sought to maintain that it had no status as a person at law and therefore could not be sued. The House of Lords rejected this argument and held that the union did have legal personality and could be sued in the same way as any other corporation or individual. The House of Lords affirmed the decision of the Trial Judge who took the view that unless trade unions could be sued then '. . . the legislature has authorized the creation of numerous bodies of men capable of owning great wealth and of acting by agents with absolutely no responsibility for the wrongs that they may do to other persons by the use of that wealth and the employment of those agents'.

Having clamoured for recognition by the law and the privileges which went with it the union movement was appalled that it merely attracted liability in tort in exactly the same way as other legal persons such as individuals and companies.

The British Parliament intervened to ensure that this situation would not continue by passing the Trades Disputes Act 1906. This Act provided as follows:

'An action against a trade union, whether a workman or master; or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any Court'.

This Act provided that trade unions, in contra-distinction to all other legal persons, could not be held liable for their tortious (wrongful) acts.

In other words, the legislature authorized

'...the creation of numerous bodies of men capable of owning great wealth and of acting by agents with absolutely no responsibility for the wrongs that they may do to other persons by the use of that wealth and the employment of those agents'. The privilege was unique to trade unions.

Only the State of Queensland enacted similar legislation in Australia by the Trade Union Act of 1915. This legislation was repealed in 1976 by the Bjelke-Petersen Government.

None of the other Australian States has ever adopted the provisions of the U.K. Trades Disputes Act 1906. As a result trade unions in Australia are liable for their tortious acts. This is a critical difference between the law in the United Kingdom and the law in Australia.

Although the Thatcher Government in Britain has been winding back the immunity of trade unions from tort, such an immunity never existed in Australia. Although actions in tort have been rare in Australia they nonetheless exist and represent a fertile ground for recovering losses caused by wrongful trade union conduct.

The common law of tort as applicable to trade unions is not specifically 'anti union' or even specifically directed at trade unions. It is the same law that applies to all persons in our society---companies, individuals and other legal entities recognized by the law. When trade unions argue that they should be immune from tort they are arguing that they should enjoy a special privilege that is not afforded to any other entity known to the English common law. There is no reason why, in a society that subscribes to the principle of the rule of law, trade unions should be treated differently to individual citizens or ordinary corporations.

B. The modern liability of trade unions at law

(i) Common Law Liability

Since trade unions are recognised as legal persons by the law they are subject to the law of tort in the same way as other legal persons in Australia today. There are three torts particularly applicable to modern trade union conduct. They are:

a) inducing breach of contract;

b) intimidation;

c) conspiracy.

These torts are sometimes given the misnomer of 'Industrial Torts'. In fact they are applicable to non-industrial conduct and are not restricted in their application to industrial situations.

a) Inducing Breach of Contract

The leading case in this area concerned a singer, a Miss Wagner, who had contracted to sing exclusively in the Plaintiff's theatre for a period of three months.5 Before she commenced her engagement, the defendant, with intent to injure the Plaintiff, procured Miss Wagner to refuse to sing in the Plaintiff's theatre and thereby breach her contract. The Plaintiff brought an action claiming damages for the loss which he had suffered as a result of the Defendant's conduct. The Court held that this action was good in law and in doing so laid down the modern form of the tort in inducing breach of contract.

In 1972 a sheep farmer on Kangaroo Island, South Australia, successfully brought proceedings on this basis against the secretary of the South Australian Branch of the Australian Workers Union, a Mr Dunford. Mr Woolley employed two shearers who were not members of the A.W.U. The organizer for that union visited Kangaroo Island and attempted to sign them up as members. The shearers refused to join. The organizer reported the matter to Dunford who thereupon wrote to a shipping company which had the contract with Woolley to ship his wool to the mainland. Dunford informed the shipping company that the South Australian Labour Council had placed a 'black ban' on the wool shorn on Woolley's properly and requested that company not to ship or transport the wool until notified by the union. As a result the shipping company refused to transport Woolley's wool.

Woolley brought an action against Dunford seeking an injunction restraining him from doing any act to cause or procure interference with his contract with the shipping company to transport wool from Kangaroo Island to the mainland. The South Australian Supreme Court ordered Dunford to withdraw the notice to the shipping company not to ship or transport Woolley's wool and refrain from doing or continuing any act that directly or indirectly caused, procured, or induced any breach of any contract for the carriage of Woolley's wool or produce, or that caused, procured, or induced any interference with the performance of any such contract.6

A similar action was brought in the Victorian Supreme Court in 1976 by J.G.K Nominees Pty Ltd against the Printing and Kindred Industries Union and various officers of that union. In that case the union was attempting to unionise employees of the Plaintiff which was an advertising agency. The Plaintiff had long-term contracts with the Melbourne Herald, in some cases for 12 months, to place advertisements which it prepared. The union informed management at the Herald that advertising copy from J.G.K was black because it had not been prepared by unionists and that Herald employees would prevent the publication of any advertisements submitted by that company to the newspaper. The effect of the union's activities was to induce the Herald to breach its contract to publish advertisements on behalf of J.G.K In interlocutory proceedings before the Court, J.G.K Nominees successfully obtained injunctions against the P.K.I.U. and its officers to prevent them from doing any act to cause or procure a breach of contractual relations between it and the Herald.

Inducing a breach of contract occurs where one party (C) induces another (B) to breach his contract with the Plaintiff (A).

In more recent years the scope of this tort has been widened to apply to cases where there is no precise contract between the Plaintiff (A) and his contractor (B) but C induces B to cease dealing with A.7 As a result of such decisions this tort is sometimes now described as the tort of 'interfering with economic relations'.

b) Intimidation

In 1964 the House of Lords handed down an important decision which firmly established intimidation as an independent tort known to the modern law.8 In that case the Plaintiff, a draftsman employed by BOAC, resigned his membership of the Association of Engineering and Shipbuilding Draftsmen. All the union members in the design office where he was employed, by resolution, informed the Corporation that if the Plaintiff was not removed from the design office within three days all the members of the union would withdraw their labour. BOAC then suspended the Plaintiff from his work and two months later dismissed him.

In an action by the Plaintiff against the members of the union, the Court held that where a person either commits an unlawful action or threatens to commit an unlawful action against a third person which he knows will cause the Plaintiff loss then the tort of intimidation is made out and the Plaintiff can recover damages for that loss. In this case the threat of a strike was held to be the threat of unlawful action, the result of which caused BOAC to dismiss the Plaintiff who; as a result, suffered loss. The Court also held that not only were the union members liable for damages to compensate the Plaintiff for his loss but they could be ordered to pay aggravated or exemplary damages for their oppressive actions or to deter them from engaging in such conduct.

An example of the application of the tort of intimidation in Australia in more recent times was the case of Latham v Singleton9 where a Mr Latham recovered damages, including exemplary and/or aggravated damages, for the loss which he suffered when he was hounded out of his employment with the Broken Hill City Council through the actions of the Barrier Industrial Council.

In order to establish the tort of intimidation it is necessary to show that the loss which the Plaintiff has suffered arose as a result of intimidation which amounted to the commission of an unlawful act or the threat of an unlawful act. Since most strikes involve employees in a breach of their contract of employment, a strike, or a threat of a strike, can constitute such unlawful action. There are statements in the speeches of the Lords in Rookes v. Barnard that where proper notice that a strike is to take place is given and impliedly accepted by the employer then the strike itself does not involve a breach of contract. In such a case the tort of intimidation would not be made out since there would be no unlawful act or threatened unlawful act..

In cases where members of a union engage in picketing which amounts to a common law nuisance then this may provide the unlawful means which is brought to bear upon the third party to act adversely to the plaintiff's interests. In such cases the Plaintiff may be entitled to recover damages and to obtain injunctions to restrain the unlawful actions or threatened unlawful actions from occurring.

c) Conspiracy to Injure

Although trade unions have been granted legislative immunity from criminal conspiracy they are still liable, in certain circumstances for civil conspiracy. A civil conspiracy occurs where two or more persons combine together to injure a Plaintiff and act in pursuance of that combination in such a way as to cause him loss. The act or means of injuring the Plaintiff may be either lawful or unlawful.

The High Court has limited the liability of trade union members for conspiracy by lawful means to cases where the combination is motivated by the sole true dominating or main purpose of harming the Plaintiff.10 In most cases trade union officials are able to establish that their combination is motivated by the purpose of improving the terms and conditions of employment of their members and therefore, providing they do not engage in unlawful means, it is difficult to succeed in an action for conspiracy against them.

If union officials or trade union members combine together with an intention of harming the Plaintiff and act in pursuance of that combination by unlawful means the scope for the Plaintiff to recover damages against them is far wider.

As I have previously stated, many strikes are unlawful and therefore a combination or agreement to strike engaged in with the intention of harming a Plaintiff will amount to an actionable conspiracy at common law.

A vivid example of an actionable conspiracy by unlawful means occurred on the Hobart waterfront in 1956.11

Mr Hursey and his son were members of the Hobart branch of the Waterside Workers Federation and members of the D.L.P. In 1956 they refused to pay a levy imposed.by the Branch upon its members for the purpose of assisting the Australian Labor Party. Events soon developed and gangs were formed on the wharf to form a human barricade to prevent the Hurseys entering the wharf and attending the pick-up point for waterside labour. The members of the union had agreed to act together in such a way as to prevent the Hurseys from obtaining employment. If they could not enter the wharf they could not be given employment under the 'pick-up' system that was then operating. The High Court held that the Hurseys were entitled to damages to compensate them for the loss which they suffered as a result of being unable to obtain employment brought about by the conspiracy of the Defendants, by unlawful means, to injure them by preventing them from obtaining employment. The unlawful means in this case was the interference with their liberty, freedom of movement, obstruction and assaults which occurred when they attempted to cross the human barriers.

As with the tort of intimidation it is necessary to show unlawful means to succeed. In an action for conspiracy to injure unless the conspiracy is motivated solely by the intention to injure the Plaintiff and cannot be construed in any sense as having the 'redeeming' intention of somehow benefiting those who conspire together. It is not every picket that amounts to 'unlawful means' at common law. A picket which comprises no more than union members standing at the entrance of a factory informing suppliers that they are in dispute with the employer would not be unlawful. If the picket goes further and, with intention to do so, induces the suppliers to breach their contracts, or involves a nuisance, or assault, then unlawful means will have occurred and the behaviour becomes actionable. To succeed in an action for conspiracy the Plaintiff must prove an agreement between those engaging in the conduct to do those unlawful acts which have caused him loss.

Hanging over all of these industrial torts is the vague defence known to the law as 'justification'. The courts have held that in some cases industrial action may be 'justified' and therefore relieve trade union officials and their members from liability for tortious actions. In each of the cases I have referred to, the defence of justification has not succeeded but the defence would have to be considered on its own merits in each action. It does provide some limitation on a wide application of these torts and it is one of the complicating factors in succeeding in such actions.

As can be seen from a review of the main principles concerning industrial torts the remedies available to Plaintiffs are two fold. A Plaintiff can obtain damages for the loss which he has suffered by reason of the wrongful act of the other party and in many cases obtain injunctions to prevent such actions continuing or to prevent them from occurring in the first place if they are imminent.

Injunctive relief is a discretionary remedy. Such relief can be given to prevent irremediable harm occurring to the Plaintiff or, pending the trial of an action, if the balance of convenience favours such a remedy being granted. In the context of industrial disputes the Courts have taken it as a well settled approach that injunctive relief will not ordinarily be granted where there is another Tribunal particularly suited to deal with the matter in issue and having the requisite power and authority to resolve the issues between the parties.12 If the dispute is before the Arbitration Commission which has not completed conciliation proceedings the Courts may refuse to intervene in the dispute by granting injunctive relief. Where there is no prospect of further conciliation in the Arbitration Commission or where the Commission has made a recommendation in relation to the resolution of the dispute which has been ignored by the parties the Courts can and will, in appropriate cases, intervene and give injunctive relief. The Arbitration Commission does not have the power to give injunctive relief and it is quite common for a trade union to ignore its direction as to the manner in which a dispute should be settled. In such a case the Courts are unlikely to feel any constraint in granting injunctive relief and indeed it may be observed that their powers can be used to complement the absence of powers of the Arbitration Commission in this area.13

The potential to recover damages against trade unions at common law is of critical importance to employers. The Arbitration Commission does not have the power to award damages. It has the legislative role of preventing and settling industrial disputes. Once a dispute occurs or is threatened or impending the Commission is required to either conciliate the parties or to arbitrate on the matters in dispute. The employer who is affected by industrial disruption suffers a mounting loss for each day that the disruption continues. If the dispute is fully settled either by conciliation or arbitration he can never be reimbursed by the Commission for the loss. As a consequence many employers are financially coerced into conceding ground in proceedings before the Commission. In contrast where the industrial disruption occurs as a result of tortious action by trade unions the employer does have a right to receive compensation for this loss, by way of damages awarded by the courts. Although proceedings to recover this loss may be long and expensive the possibility of being put into the same position as he was in prior to the commencement of the dispute gives the employer the opportunity to negotiate on an equal footing with the union and to insist upon his rights.

As can be seen from the causes of action which I have reviewed in this section there are numerous situations in which an industrial dispute also involves the commission of a tortious act by the trade union involved.

ii) Statutory Controls

a) The Trade Practices Act

As can be seen from an historical review of the development of trade unions many of the acts engaged in by trade unions are in restraint of trade at common law and indeed the objects of unions themselves are, to a degree, in restraint of trade. For this reason the provisions of the Trade Practices Act prohibiting restrictive trade practices quite properly apply to various types of union conduct. By amendments introduced by the Fraser Government in 1977 the Trade Practices Act was extended to prohibit secondary trade boycotts (section 45D and 45). A secondary boycott occurs where two or more persons act in concert to prevent a third person from supplying goods to, or acquiring goods from, a fourth person. This action is described as a secondary boycott in the sense that the fourth person suffers loss not because of industrial action directed at him but because of me industrial action directed at the third person with whom he deals. A person is not deemed to have contravened section 45D of the Trade Practices Act where the conduct which is engaged in is related to an industrial dispute between him and his employer. Therefore if employees of Company A take action against Company B with the dominant purpose of improving their conditions of employment they are not in breach of the Act. If the employees are not employed by Company A but take action against Company B in order to 'help' employees of Company A then their action is in contravention of that section. Proceedings for a breach of the provisions of the Trade Practices Act are brought in the Federal Court of Australia. and a Plaintiff is entitled to the remedy of damages and to injunctive relief where appropriate.

For example, a trade union wishes to unionise the employees of Company A, a Courier company. The management of Company A refuses to insist that its employees join the union. Company A receives a large amount of business from an interstate transporter, Company B, which transports goods interstate and asks the Courier Company A to distribute those goods from the airport to various locations around the city. The union which covers employees who are also employed by Company B engages in conduct together with those employees designed to stop Company B dealing with, and supplying business to, the Courier Company; Overnight, Company A loses its major customer. Its most likely response, owing to financial necessity, is to cave in immediately and to unionise its shop. If it decides to take the risk however and holds out it will suffer enormous financial loss. It is entitled to bring an action pursuant to the provisions of the Trade Practices Act against the union and/or against its members whose conduct has induced its supplier (Company B the interstate transporter) to cease dealing with it and to recover damages for its loss. It is also entitled to injunctive relief against those Defendants ordering them not to disrupt the supply of goods or services from Company B to Company A.

Since a trade union is a person recognised by the law it is able to combine with its office bearers or members to engage in conduct in contravention of the Trade Practices Act. Unless some of those employees are employed by the target company and the conduct is engaged in with the dominant purpose of substantially advancing their conditions of employment then the union is in breach of the Act. It was in these circumstances that the Mudginberri Abattoir was able to successfully bring proceedings against the A.M.I.E.U.

The trade union government opposes these provisions which prohibit restrictive trade practices in relation to secondary boycotts. In its first term of office the Hawke Government attempted to repeal section 45D and associated sections in the Trade Practices Act. The Hawke Government's proposal was that powers in relation to secondary boycotts should be exercised exclusively by the Arbitration Commission. As I have already stated the legislative function of the Arbitration Commission is to prevent and settle disputes. If an employer had no right to bring proceedings in a Court and was restricted to conciliation and arbitration before the Commonwealth Commission he would be deprived of any right to recover compensation for his loss and to obtain injunctive relief to prevent the loss from continuing. In these circumstances, by reason of financial necessity, most employers would be coerced into giving way at an early stage and thereby 'settling the dispute' by complete capitulation.

This legislation was defeated in the Senate by a combination between the Opposition and the Australian Democrats.

b) Essential Services Legislation

Most Australian States have enacted legislation to restrict industrial disruption in 'Essential Services'. A recent, well publicised case where this occurred was in respect of the legislation passed by the Queensland Parliament in 1985 in the wake of the South East Queensland Electricity Board power dispute. The most controversial parts of this legislation, which was contained in five separate Acts, were those provisions that provided that engagement in a strike by employees in the Electricity industry was illegal (although no penalty is applicable) and provisions making it an offence to interfere with the performance of duties by employees in connection with the supply of electricity. These provisions were not really such novel or draconian measures as were represented by the media. Most strikes are unlawful at common law in any event and confer on the employer the right to dismiss the employee with due notice. Harassing individuals in a public place is, in most cases, a summary offence and whilst the provisions of the legislation which prohibit actions calculated 'to harass, annoy or cause alarm or distress' certainly extend the scope of previously known summary offences they only do so in relation to the supply of electricity which is deemed to be an essential service. In this respect the Queensland Legislation goes no further than Victorian legislation contained in the Essential Services Act 1958, which allows a service to be declared 'essential'. Once a service is declared 'essential' similar consequences follow.

c) The Conciliation and Arbitration Act 1904 (Commonwealth)

A union (or an employer for that matter) which registers under the Conciliation and Arbitration Act 1904 obtains valuable privileges as a result. There are various provisions whereby fines and penalties may be imposed on organisations registered under the Act which engage in various forms of proscribed conduct. Such penalties include:-.

Section 32---power of the Conciliation and Arbitration Commission to include a bans clause in an award.

Section 33---procedure in respect of conduct in breach of a bans clause in an award.

Section 62---power of the Conciliation and Arbitration Commission to suspend or cancel all or any terms of an award.

Section 109---power of the Federal Court of Australia to enjoin an organization or person from committing or continuing a contravention of the Act or the regulations.

Section 111- contempt of the Court.

Section 119---power of the Court to impose a penalty where any organization or person bound by an order or award has committed a breach or non-observance of a term of the order or award.

Section 138---prohibition against an official of an organization from inciting members of the organization to boycott an award.

Section 143---power of the Court to direct the cancellation of the registration of an organization.

Section 143A--- power of the Court to cancel the registration of an organization where it is satisfied the organization is engaged in industrial action substantially affecting the safety, health or welfare of members of the community.

Section 188---prohibition against an organization penalising an employee who refuses or fails to join in industrial action.

Of course the most important of these sanctions are the sanctions which give power to the Federal Court of Australia to impose penalties for breaches of award including breaches of a bans clause in an award. These penal provisions have largely been a dead letter since the Clarrie O'Shea case of 1969 when they were substantially watered down as a result of concerted trade union civil disobedience. Since that time it has become very rare for employers to seek penal sanctions against trade unions. The lessons of the O'Shea case have been learned very well. The imposition of penalties on trade unions for breaches of an award can be expected to raise a furore by the trade union movement and employers can expect little support in their efforts from the Government.

C. The trade union response to liability for unlawful and illegal Acts

The trade union movement is vehemently opposed to the secondary boycott provisions of the Trade Practices Act and the Hawke Government has already attempted to repeal those provisions.

As I have already stated the imposition of penal sanctions against trade unions, pursuant to the Conciliation and Arbitration Act, has largely been a dead letter since the events of the O'Shea case in 1969. Nonetheless the trade union movement submitted to the Hancock Inquiry into Australian Industrial Relations Law and Systems that such sanctions as are still contained in the Act be watered down even further. In particular the trade union movement sought the removal of sections 109 and 111 of that Act. Such a repeal would remove the powers of the Federal Court to enjoin an organization from committing or continuing a contravention of the Act or regulations and remove its power to punish for contempt. As a result if perchance a union was fined for a breach of say a bans clause in an award and it refused to pay the fine, refused to produce its books of account to the Court, or refused to be examined about the financial position of the union, then the Court would have no power to gaol the union officials for contempt. One can easily imagine how advantage could be taken of even further watering down of the limited power of sanction as are still preserved in the current Arbitration system. In a classic example of double speak the Hancock Committee opined that while employers should still be subject to penal sanctions for breaches of an award it was not appropriate to apply penal sanctions to trade unions. The Hancock Committee has recommended that the new Industrial Relations Act, which it proposes, contain no provisions for penalties by way of fines and imprisonment for strikes and lock-outs. Although it was a little more coy about the issue the Committee also recommended that no penalties be imposed upon trade unions for breaches of bans clauses.

If the reforms of the Hancock Committee are enacted then the de facto immunity from statutory liability under the Conciliation Act which was won by trade unions in 1969 will become a de jure immunity and leave employers without the ability even to threaten penal sanctions against trade unions.

The A.C.T.U. further submitted to the Hancock Committee that the new Industrial Relations Act should provide immunity for unions, their officials and members against common law actions in tort brought in respect of industrial action. Such a proposal would free trade unions from the last vestiges of control by the law. The Hancock Committee did not accept this recommendation but one of its key proposals is the creation of a new 'Labour Court'. If the legislation establishing this Labour Court gave that court jurisdiction in relation to common law actions or made reference to the Federal Industrial Commission a precondition to commencing common law actions, then the State civil courts could be effectively deprived of their jurisdiction in that area.

It is an ominous proposal that all industrial matters be handled by a new 'Labour Court' with overlapping membership with the Arbitration Commission. The justification for this proposal is that industrial matters should be decided exclusively by 'experts' in industrial relations. As is well known from a cursory examination of the attitude which the Arbitration Commission takes to unlawful trade union behaviour, and as is exemplified by the industrial relations 'experts' who comprised the Hancock Committee itself, it is the received wisdom of these 'experts' that the application of legal sanctions to trade unions is not in the interests of industrial harmony. Since trade unions have largely established a de facto immunity from law they resent any attempt to apply normal legal sanctions to them. Such attempts would no doubt create industrial disruption in many circumstances. Rather than confront the issue the experts prefer to ignore it under cover of promoting 'industrial harmony'.

The Judges of the civil courts imbued with the western and common law notions of the rule of law are obliged by their commissions to dispense justice 'without fear or favour'. According to their tradition they treat all litigants in their courts equally and apply the law and legal sanctions to them regardless of their power, influence and political muscle. If the jurisdiction of these Judges was excluded at the expense of the jurisdiction of the 'industrial experts' one can well imagine what will happen. 'Industrial harmony' will replace the rule of law according to justice as the guiding policy objective in matters of industrial law. Since industrial harmony, at least in the short term, is generally achieved by giving in to the strongest party at the earliest possible opportunity one can foresee what the likely effect of this change in objective will be.

The strongest party in the field of industrial relations is no doubt the party which has already achieved de facto immunity from the law and the party which feeds on that immunity to increase its power and strength. The common law which applies to all citizens, individuals, companies and other legal entities such as trade unions, represents the one last area where litigants can obtain justice from ordinary civil courts. This last area is now under concerted attack from the trade union movement and the report of the Hancock Committee and the legislation to be introduced to the Parliament based on that report represent a real prospect for the trade union movement to succeed in its efforts.

References:

1. Hornby v. Close (1867) LR2Q13 153

2. Hilton v. Eckersly (1855) E. & B.47

3. (1959) 103 C.L.R.30

4. (1901) A.C.426

5. Lumley v. Gye (1853) 118 E.R 749

6. Woolley v.. Dunford (1972) S.A.S.R. 243

7. Torquay Hotels v. Cousins (1969) 2 Ch.106

Merkar Island Corp. v. Laughton (1983) 2 A.C. 570

8. Rookes v. Barnard (1964) A.C. 1129

9. Latham v. Singleton (1981) 2 N.S.W.L.R. 843

10. McKernan v. Fraser (1931) 46 C.L.R 343

11. Williams v. Hunsey (1959) 103 C.L.R 30

12. Harry Miller v. Announcers Equity (1970) 1 N.S.W.L.R. 614

13 Dollar Sweets Co. Pty Ltd v. Federated Confectioners Associations of Australia & Others---(1986) V.R 383