Fighting anti-union laws: the Clarrie O'Shea strikes
- Written by Katie Wood
As the country stopped, O’Shea was being held in Pentridge Prison at Coburg in Melbourne. He had been transferred to the hospital wing when a routine medical examination picked up that the 63-year-old had a heart condition. In the hospital wing a sympathetic cook kept O’Shea up to date on the latest news coming through the radio, announcing which section of workers had gone on strike. He was also flooded with telegrams, cards and letters from around the world, often addressed to “Clarrie O’Shea, Temporary Inmate, Pentridge Prison”. This correspondence is held today in the Tramways Union archival collection.[i] More than any other source, it gives a sense of the scope of strike activity and the depth of feeling amongst workers against the penal powers.
To give just a sample, the day after he was jailed O’Shea received congratulatory telegrams from a combined union meeting at Port Kembla, the NSW Teachers’ Federation, 500 delegates meeting in Newcastle, and messages from stopwork meetings including 400 construction workers at APM Botany, crane drivers at Cockatoo Dock, Sydney, 600 meatworkers at Borthwicks, Brisbane, NSW powerhouse workers and the Eveleigh locomotive workshops. Throughout the week he received numerous telegrams from ships whose crews had voted their support at a stopwork or strike meeting. O’Shea even received a letter from
The O’Shea strikes made the penal powers a dead letter. However, over the last two decades unions have increasingly faced a regime of legal sanctions. Since the Labor government introduced the Fair Work Act in 2009, unions have been fined millions of dollars for taking industrial action. All strikes outside a very limited range of circumstances are unlawful under current legislation. Even those that satisfy all of the legal conditions may be deemed unlawful by FairWork Austr
This article looks at the lead-up to the Clarrie O’Shea strikes, not to argue for a direct comparison between then and now, but to recognise what it was in that situation that allowed for such action to break the penal powers. In the 1960s, there was greater rank and file organisation in the important industries, the existence of a network of militants mostly organised around the Communist parties, and finally a conscious decision made by a section of the union leadership (the left based in the Victorian Rebel Unions) that a greater fight was both necessary and possible. The political situation was just beginning to radic
History does not simply repeat itself, and when the next period of politicisation comes, it will of course be different. But we need to be laying the basis for future struggles now. The rank and file organisation and the networks that were central to the O’Shea strikes were built up over decades, including many years of relative industrial quiet. There has been nothing substantial written about the O’Shea strikes in recent years, so we are overdue for another look at “Freedom’s Fight of ’69”.[ii]
“The Court of Pains and Penalties”[iii]
The Commission was responsible for setting awards and the Court for enforcing them. The awards governed the conditions and rates of pay in each industry, although in strongly unionised and militant industries shop-floor action won substantial “above-award” increases. It was the ability of the Commission to insert no-strike provisions into awards that gave employers the ability to apply to the Court for penalties against the unions. For example, the Metal Trades Award clause read “No organisation party to this award shall in any way, whether directly or indirectly be a party to or concerned in any ban, limitation or restriction upon the performance of work in accordance with this award.”[iv] Between 1956 and 1969, 77 such clauses were inserted into industry awards.[v]
There were many sections of the Arbitration Act that were part of what is termed the “penal clauses”, “penal provisions” or “penal powers”. In addition to the federal system, each state had a separate act that included numerous penal provisions. Some industries, such as maritime, were also governed by separate but overlying regimes.[vi] The two most important and widely used sections at the federal level were sections 109 and 111. If a union or its members went on strike, section 109 allowed an employer to seek an order from the Industrial Court for the union to cease their strike for a breach of the bans clause of the award. If the union or its members did not comply, they could then be dealt with under section 111 for contempt of the section 109 order.
There were, of course, many supporters of the penal powers. The employers argued that they were necessary to prevent industrial anarchy, and that the provisions applied equally to unions and bosses. In legal terms they were correct, but as others have pointed out, laws prohibit the rich and poor
Despite the clearly biased nature of the system, there were supporters of the penal provisions within the union movement itself. Throughout the 1960s the left officials (communists in particular) waged an argument that the arbitration system was designed to draw the unions into the capit
Support for the penal powers within the union movement can be explained by the fact that the arbitration system provided cover for the small and industrially quiescent unions, of which there were many (Clarrie O’Shea once described them as “the Undertakers’ Assistants and the Dolls’ Eyes Makers and the Chocolate Dippers”).[xii] These unions often enjoyed a disproportionate weight in the higher levels of the union movement, as the number of smaller unions more often than not outweighed the larger ones. Arbitration provided a means by which those unions without the industrial strength or will to fight could gain some improvements. Those unions that did not strike did not feel the effects of the penal powers, so it was easier to dismiss them as a necessary evil.
Their arguments omit the fact that those unions that relied on the arbitration system did so off the back of the militant unions that fought using industrial action. One concrete way this played out was that the margin[xiii] for skill in all awards was pegged to that of a metal trades fitter. When the metal unions won substantial pay increases, this flowed through into the awards in other industries. But the metal unions won increases mostly by establishing “facts on the ground”, winning above-award payments with shop-by-shop industrial action. The small and right wing unions could then claim victory through arbitration without referencing the important role of industrial militancy in winning the demand in the first place.
The conflicting approaches were reflected in the Austr
Early agitation against the penal powers
Communists were at the forefront of the campaign against the penal powers. It was often the Communist-led unions that suffered the most under the fines.[xvi] Their union leaders and militants were hostile, in rhetoric if not always in action, to the arbitration system and in particular the coercive aspects of it. There is some evidence of earlier protests against the penal powers, although they appear not to have been gener
From 1951, the year that Menzies “put the teeth into” the Arbitration Act, Communist and left unionists protested. In 1951, the Trade Union Defence Committee (an anti-Grouper[xviii] outfit that was central to union politics in Victoria) published a pamphlet, “Defeat Menzies’ Union-Smashing Act!”[xix] Laurie Carmichael, the Communist Victorian State Secretary of the Amalgamated Engineering Union (AEU), also claimed that there were a number of demonstrations against the penal powers in 1951 and that the Communist Party (CPA) attempted to organise a campaign against them but did not succeed in mobilising others.[xx]
The first sustained campaign occurred in 1963-4 after a number of key strikes involving the CPA (including the General Motors Holden, Commonwealth Industrial Gases and Waterside Workers Federation strikes) saw heavy penalties threatened or imposed. There had been a noticeable increase in the number of fines being awarded since 1961.[xxi] In these years the Communist-led unions called repeatedly for a mass campaign of industrial action, for the wholesale repeal of the powers and for the ACTU to back a stronger campaign. For example, the speakers’ notes for the CPA’s federal election campaign, written in December 1964, declared:
Big movement has arisen to force repeal of anti-strike laws. Strong action by wharfies won repeal of Section 52a of the Stevedoring industry Act authorising attendance money fines on individuals. Transport Workers Union by threat of nationwide stoppage got “bans and limitations” clause removed from award. WA Arbitration Bill increasing penalties against unionists was met by one-day general strike in Nove. 1963. Last May ACTU conference nearly carried motion for nationwide protest against penal laws – defeated 84 votes to 63. Demand repeal of these laws and demand that if Labor Party wins majority in Senate it shall use its majority to force repeal in near future.[xxii]
Both the Waterside Workers Federation (WWF) and the Builders Labourers Federation (BLF) issued leaflets condemning the heavy fines that were imposed. A BLF pamphlet castigated the ACTU for its inaction: “[C]ertain ACTU leaders oppose positive action against the penal provisions of the Arbitration Act. Such a policy has the effect of dampening down mass struggle.”[xxiii] The AEU, one of the key metal unions and Communist-influenced, passed a motion at the Melbourne District Conference in April 1963 that called on the forthcoming ACTU Congress “to adopt a more forthright policy of opposition to the penal provisions, to adopt measures of state and national protest action against their use, and to again stress the determination of the trade union movement to have them repealed.”[xxiv] At the 1963 ACTU Congress, an amendment moved by Fitzgibbon of the WWF defeated the ACTU Executive’s motion.[xxv] In response to the growing calls for action, the ACTU convened a federal conference in 1964, specifically on the question of the penal powers. The left’s motion calling for nationwide strikes was narrowly defeated.[xxvi] Further pressure was exerted when the Transport Workers Union (TWU) threatened a nationwide 24-hour strike against heavy penalties they had recently received. The strike did not go ahead after the bans clause was deleted from the award.[xxvii]
Throughout this period, the unions continued to pay the fines (with the partial exception of the TWU) and there is no evidence that there was a serious discussion about facing the consequences of not paying. Reference to the penal powers in the Communist press and from within the left and militant unions dropped off dramatically from 1965 through to early 1968; indeed at the 1967 ACTU Congress the matter was not even discussed.[xxviii] One explanation for this may be that the Communists were wrong-footed by their defeat at the 1964 ACTU conference[xxix] and unwilling or unsure of how to wage the campaign without the backing of the central union organisations. This is reflected in the fact that there was no coordinated strategy discussed among the left unions or in the Communist press. At that time, Jack Hutson admits that even the CPA officials to a certain extent believed that it would be necessary for the ALP to win both houses of parliament before the legislation could be repealed.[xxx] There was much talk about protesting against the penal powers but at that stage little activity arose from the talk. It was a wasted opportunity and allowed the massive increase in fines in 1967-69 that eventually pushed the union movement into a stronger stand.
“Not a prairie but a powder-keg”
The period before the O’Shea strikes was characterised by growing industrial militancy and radic
What pushed the Communists onto the front foot was a sense of the radic
This increase in rank and file organisation and militancy exploded in the metal industry in 1968, in the so-called absorption battles. Wages paid above award rates were an important part of the pay packet in the metal trades, in some cases accounting for up to 20 percent of the weekly wage.[xxxviii] The metal bosses had for a number of years sought greater cooperation in order to counter the unions. In December 1967 the Arbitration Commission attempted to oblige. Whilst granting a pay rise the commissioners suggested that the increase could be absorbed into any existing over-award wages, and employer groups such as the Metal Trades Industry Association advised their members to follow the recommendation. The response was a wave of industrial action. Hundreds of strikes across the country occurred in late January and early February, and a national 24-hour stoppage involving nearly 200,000 metal workers took place on 6 February.[xxxix] Two days later the ACTU Disputes Committee recommended that a national strike of all unions be called unless the dispute was settled within the week.[xl] Already some individual employers had folded. In the face of this growing confrontation, the President of the Commission stepped in, ruling out absorption and ordering the full wage increase to be paid by August. The metal unions were jubilant, but the victory raised the issue of the penal powers to a new level.
During the strikes the employers, assisted by the Industrial Court judges, issued an unprecedented number of fines. In total, 405 were issued against the metal unions, amounting to $98,000 plus legal costs of $87,000. On one day alone, the Court dealt with 107 summonses against six unions.[xli] The heavy-handed response to the absorption strikes was part of an increasing use of the penal provisions by employers, and a greater willingness of the Industrial Court to impose fines. This of course bred union anger against the provisions, an anger that fused with the growing preparedness to strike and support industrially militant measures. It led directly to several important unions declaring that they would refuse to pay any more fines. In May 1968, the AEU Commonwealth Conference declared, “In light of our own members’ clearly expressed determination to fight the penal powers, this Conference determines that no further or outstanding fines will be paid by the AEU and any move to forcibly collect any fines will be met with industrial action by our membership.”[xlii] The Federal Council of the Boilermakers’ and Blacksmiths’ Society resolved in April 1969 to support any union that refused to pay the fines and warned the ACTU that if it failed to “accept the importance of such a campaign of resistance against the penal clauses, the Federal Council be directed to campaign with other militant unions.”[xliii] In March 1969, the umbrella organisation of the white collar unions, the Australian Council of Salaried and Professional Associations, also advised its members not to pay any more fines, following a fine imposed on the Association of Draughtsmen, Engineers and Surveyors.[xliv] In January 1969, the CPA’s National Committee voted to carry out a “bolder confrontation of the penal powers and the Arbitration Court.”[xlv] The stage was being set for the showdown.
Meanwhile, in Western Austr
A final factor in the O’Shea strikes was the greater willingness of the Victorian left unions to engage in action independently of the official structures of the union movement after they had broken with the right in the 1967 Melbourne Trades Hall split.[xlix] This split both reflected of the increasing militancy of the union movement and deepened it. The make-up and voting rights of the Council hadn’t changed since the early days when smaller unions were the norm. For example, the Municipal Employees’ Union paid $1,297 in affiliation fees and had the same number of delegates as the combined representatives of the Poster Hangers’ Union, the Cigar Makers’ Union, the Felt Hatters’ Union and the Coopers’ Union (O’Shea’s caricature was not entirely unfair), all of whom had 60 or fewer members and between them paid only $23 in affiliation fees.[l] In April 1967, the Secretary of Trades Hall moved to increase affiliation fees. This sparked a row about representation which ended with the split in November 1967 of 27 unions, mostly with Communist or Labor left leadership. The 27 unions (the number varied as some unions joined or left) set up the Trades Hall Administrative and Financial Review Committee, known as the Rebel Unions. Freed from the constraints of the Council machinations and the dead hand of the right, the Rebel Unions took a militant and leftward stand, particularly around issues such as the Vietnam War and conscription. It was the Rebel Unions who agreed, early in 1969, to back Clarrie O’Shea if he was pen
“All the way with Clarrie O’Shea!”
There is some measure of irony in the fact that the greatest challenge to the arbitration system came about because a union was defending the decisions of the Arbitration Commission. In some ways, using the Tramways Union as the vehicle to smash the penal powers was an odd choice, as they were certainly not the most industrially important union and had received nowhere near the number of fines as the metal unions. But the Victorian branch was a member of the Rebel Unions and the Maoists, O’Shea among them, held no love for the arbitration system and the courts.[li]
The fines imposed on the Tramways Union arose out of a 1965 dispute over the introduction of one-man bus routes (the norm was to have a driver and a conductor).[lii] The union was actually upholding a decision of Commissioner Horan that the Tramways Board (which ran Melbourne buses at the time) could not introduce one-man buses without approval of the union and the Commission. The Board moved to introduce them anyway. Bans on the two disputed routes led to a series of fines in early 1966, but eventually Commissioner Horan removed the bans clause from the Award. The Board appealed to the High Court, which meant that the union was liable for the legal costs of a case in which it was defending the decision of the Commission. All up, the union incurred fines of $10,800. The union agreed to pay them at a rate of $100 a month and did so for 18 months, until suddenly the Court Registrar demanded immediate payment of $3,000. The union said that it could not pay that amount but suggested instead increasing monthly payments to $200, which was refused. The Registrar re
In October, a writ was served on O’Shea and a bailiff was sent to the union offices to take inventory. The union had arranged for a film crew to be present so the bailiff left in embarrassment. Garnishee orders were then produced to the Commonwealth Bank, where union funds were held, and $3,741 was withdrawn, although this still left thousands of dollars owing on the fines. Then in November the union became involved in another dispute, when members at the Glenhuntly depot refused to work with
The Rebel Unions met on 24 March and decided to back O’Shea, calling on state labour councils for support and forming a sub-committee to organise the campaign[lv]. Attempts were made to issue two more summons to O’Shea (he was dodging the court officers) for 10 and 30 April. Finally it was decided, with the support of the Rebel Unions, that O’Shea would answer the summons of 15 May at 10.30am. The Rebel Unions called a shop stewards’ and delegates’ meeting for 8am at Festival Hall. Five thousand attended and voted, with one against, for a resolution that declared: “We determine that any attempt to take direct punitive action against any Union funds or property or the person of any official will be met with an immediate 24-hour stoppage of work.”[lvi] Following the vote, thousands marched to the Industrial Court in Little Bourke Street, chanting “All the way with Clarrie O’Shea!” The hearing was due to start at 10.30am but at some point it became clear to O’Shea that the march was not going to arrive at the Court on time. Running to the back of the march, he found the car of a television crew and arrived at the Court just as Judge John Kerr (later appointed Governor-General by the Whitlam government) was beginning to declare another no-show. O’Shea was asked to go to the witness box to make an affirmation. He responded:
“I do not, Sir, I do not wish to be sworn. I challenge the authority of this court to deal with my case. I am merely defending the funds of my organisation…”
Kerr – “I do not want to hear any speeches from you.” [lvii]
The judge did not get his wish, as O’Shea went on to explain his actions: “I am a paid servant of my members, I am directed to protect their interests at all times, whether it is in regard to their wages, working conditions or their funds, and I am doing what appears to me and to our members to be the only logical course that I can take to protect their funds. If I were to answer those questions which would be directed to me by Mr Gilbert it would merely mean that a further garnishee order would be issued on our funds.”
Outside the court thousands of unionists and students had gathered to hear speeches given atop nearby scaffolding and to tussle with the police. O’Shea had a moment to watch from the window as Kerr adjourned proceedings when it was clear that the examination was not going to take place. Kerr took a swipe in his final summation: “People who choose, by what is fashionably called nowadays civil disobedience, to defy the law do so on their own responsibility and must take the consequences… In those circumstances, Clarence Lyell O’Shea, I have no alternative but to order you to be committed to prison, there to be detained until you shall make to the satisfaction of the court proper answer on your oral examination or until the court should otherwise order.”
News of the decision sparked a wave of anger outside. According to The Age, Laurie Carmichael ended the speeches with: “It’s discipline today, and discipline means no pubs but back to work and get the workers out.”[lviii] Although John Arrowsmith recalls a more prosaic “That’s it fellas – the stoppage is on tomorrow. Don’t delay – return to the factories and mobilise your mates. This is the time for discipline.”[lix]
The Rebel Unions swung into action. Ken Carr, Secretary of the Rebel Unions committee and State Secretary of the Federated Furnishing Trades Society, described the scene at their headquarters:
By the time the officials had assembled it was after 3pm… The atmosphere in the Builders’ Labourers’ building across the road from the Trades Hall was almost indescribable… When the Chairman, Jack Healey, opened the meeting reports came in thick and fast. George Windberg, of the Engine Drivers and Firemen, announced that his executive would meet at 5pm, but he was confident they would support the strike. After talks with his members in the La Trobe valley… he was suggesting a power stoppage from 10am to 4pm. Jack Brown of the ARU stated that his executive had adjourned its meeting to await our decision…. John McEwan, the Builders’ Labourers’ Organiser, who was on the phone continually, had to interrupt the meeting… Provincial Trades and Labour Councils had rung. Would officers be available to speak at meetings in their centres? Jim Roulston, of the Boilermakers, was wanted on the phone and came back with the news that more than a dozen Unions were stopping in NSW. By just after 5pm Bill Bourke was able to announce that a telegraphic vote was being taken from his executive. He was confident that the Transport Workers would stop.[lx]
This can be contrasted to the response of the ACTU Executive, which was also meeting in Melbourne that day. The minutes of the Executive record that the President refused to even have a discussion about the jailing of O’Shea. He argued that an appropriate resolution had not been moved and that the ACTU had no knowledge of what had happened.[lxi] Delegate Fitzgibbon responded that the strikes were going ahead “whether the ACTU liked it or not”. It was decided to defer discussion until Friday after a meeting with Coulthard, the Federal Secretary of the Tramways Union.
The week that Clarrie O’Shea was in jail saw an unprecedented wave of strikes. It is generally acknowledged that a million workers went out across Austr
Friday, 16 May
The delegates and shop stewards who met at Festival Hall were as good as their word. A 24-hour general strike brought Victoria to a standstill. The Rebel Unions called around 200,000 workers out and the newspapers reported, “No trams or tramway buses… power cuts… curtailed train services… a wharf stop… no gas service calls… no meat deliveries.”[lxii] Another meeting of delegates and shop stewards took place at Olympic Park, with thousands attending a march afterwards to the Industrial Court, and fights broke out with the police. There was also a meeting and march of 1,200 unionists in Geelong and similar meetings in other regional centres, including Bendigo, Ballarat and the La Trobe Valley.
The response from other sections of the union movement was rather underwhelming. The Victorian Trades Hall Council attempted to pass a motion that read in part that unions were “in no way obligated to participate in unauthorised stoppages and actions contrary to the rules, procedures and decisions of the ACTU.”[lxv] They were only prevented from doing so when the meeting was disrupted by a couple of members of the Rebel Unions. At a meeting with the ACTU, the federal Tramways Union officials refused to place authority over the strikes in the hands of the ACTU because they did not have that authority on the basis of the resolution that had passed earlier in the year.[lxvi]
Monday, 19 May
The weekend was a time to marshal forces. The following week the strikes escalated dramatically. On Monday, there was a general strike in Queensland where 150,000 workers struck.[lxvii] The state witnessed some of the largest strikes outside of Victoria because the Trades and Labour Council openly backed O’Shea. The resolution passed at the delegates’ meeting called on the ACTU to organise a national stoppage. A report from the TLC on the campaign notes serious action and meetings in all major regional centres, including meetings of 500 in Bundaberg, 440 in Cairns, 700 in Townsville, 150 in Gladstone, 100 in Southport, 300 in Bowen, 200 in Mackay, 450 in Rockhampton, 400 in Ipswich and 400 in Toowoomba.[lxviii] The meetings were representative of many more on strike. The Vice-President of the Storemen and Packers complained that Queensland members had gone out despite a decision from the Federal Council not to strike unless directed by the ACTU.[lxix]
In the Northern Territory, more workers went on strike, with the North Austr
On Sunday the ACTU met with Ministers Bury and Bowen, who offered the “compromise” that if O’Shea agreed to pay the fines within 14 days and the union agreed to pay $300 a month, O’Shea could be released immediately and the books would not be examined.[lxxi] The ACTU again met the Tramways Union officials, who maintained that they were not authorised to pay the fines because of the Council motion passed in Hobart earlier in the year.
The ALP also came out in support of the campaign for the repeal of the penal powers. On Tuesday, O’Shea received a telegram from Gough Whitlam informing him that “At opening of Bendigo byelection campaign last night I declared Austr
Tuesday, 20 May
The Age hinted at the panic that was starting to set in: “Austr
A second major strike occurred in Victoria, this time more widespread than the last, with at least 40 unions participating. The Rebel Unions called for another on Friday if O’Shea was not freed. Significantly, a number of unions outside the Rebel Unions joined the strike, interested in being part of the popular campaign against the hated penal powers. Joe Chandler, the Victorian BWIU Secretary, stated publicly, “Our Union is not one of the group now suspended from the Trades Hall Council but… On April 21st, 1969, we carried a resolution suggesting our members hold job meetings in support of the Tramway Employees Union. When Clarrie O’Shea was gaoled we again looked at the situation and decided to direct our members to stop work and attend the stop-work meeting held on May 20th. I am pleased to say that the response from our members was overwhelming.”[lxxiv] In all it is estimated that 500,000 workers were out in Victoria alone.[lxxv] The Age reported that trams, trains and buses wouldn’t run, that power was restricted to two lights and no radiators between 7am and 7pm, stoves were only to be used if no alternative method of cooking was available and gas was completely banned. Television was restricted to 1.30-2.30pm and 3.30-5.30pm. The difficulties in getting to work and sympathy for the strike saw absenteeism in the city reach 10 to 15 percent for the day.[lxxvi]
In South Austr
On Tuesday evening the Attorney-General announced that he had given instructions for the order against O’Shea to be discharged because that afternoon a former advertising executive of the Austr
Wednesday, 21 May
In NSW, a strike by transport workers cancelled trains across the state, buses in Newcastle, Wollongong and Sydney and ferries in Newcastle and Sydney. Waterside workers also struck.[lxxxii]
O’Shea was released at 11am, after Kerr stated that he was no longer in contempt and discharged the order for the examination. Outside Pentridge Prison he remained as defiant as ever:
My release is a great victory for the workers, working people and all other democrats who have stood up against the shackling of workers’ struggle… My imprisonment and release were only a small part of the much bigger question of oppression of the workers. I will try to play my full part in bringing it to an end… Neither the Tramways Union nor I have paid one cent of the fines, nor will we ever do so… Austr
alian workers have never before conducted such a magnificent struggle. Again I feel certain that they will use the initiative they have displayed so far in this struggle to some much more radical social advance such as social services and pensions.[lxxxiii]
Thursday, 22 May
Despite O’Shea’s release, a number of big strikes continued to press home the demand for the repeal of the penal powers. The NSW strike went ahead with around 100,000 workers taking part in Sydney, and tens of thousands in Wollongong and Newcastle.[lxxxiv] The second-ever general strike in Western Austr
By the end of the week, the ACTU made a public announcement calling on all affiliates to refuse to pay fines until the matter was settled.[lxxxvi] This announcement allowed the moderate and right unions that had held out so far to get behind the campaign. Throughout the week they had come under pressure from the more militant wing of the union movement to take a firm stand, in particular to refuse to pay fines. Many of the telegrams and letters sent to O’Shea indicated that the district or shop meetings that had sent them also forwarded their demands to the ACTU and Labour Councils for more militant action. They came from towns and cities all over Austr
After the penal powers
The O’Shea strikes broke the back of the penal powers. It was not the end of the issue, but the strikes robbed the employers and the Industrial Court judges of the confidence to use them. Following the absorption strikes, only three unions were fined under the penal provisions, but none of these fines were paid.[lxxxviii] In 1970 the Arbitration Act was amended to remove section 109(a) and two new sections were added. These laid down new procedures for de
Some employers were particularly vocal in their dissatisfaction with the new situation. The National Employers’ Policy Committee and the Metal Trades Industry Association campaigned in the years after the O’Shea strikes for the government to collect the outstanding fines.[xci] The McMahon government attempted to force the unions to pay back some of the outstanding fines at the end of 1971, but on two separate occasions anonymous benefactors came forward to pay the amount demanded. On one of those occasions, the amount was donated on behalf of an employers’ organisation, so it is quite possible that the employers paid more penal provision fines after the O’Shea strikes than before them.[xcii] A number of the metal unions also paid outstanding fines when the Arbitration Commission made payment a precondition for the amalgamation that established the Amalgamated Metal Workers’ Union in 1972.[xciii] Still, no new fines were paid and it was obvious that the use of the penal powers as a mechanism to discipline the union movement was finished. When large-scale fines of unions were once again broached, it was done through the use of different mechanisms, in particular the 1977 amendments to the Trade Practices Act, which allowed for massive fines for secondary boycotts (industrial action in support of others) and introduced the notion that unions could be held liable for the financial losses that a strike might impose.
The O’Shea strikes, along with the victory of the absorption battle, contributed to a sense of confidence in the working class. This confidence, along with the general political radic
On the face of it, a simple comparison between the O’Shea strikes and the ability to end the increasing use of strike penalties today can appear misguided. The union movement today is a very different beast, and thirty years of declining strike action, union coverage, traditions and confidence make it difficult to imagine the possibility of widespread industrial action. Besides, the O’Shea strikes took place in a period of rising militancy and the beginnings of a gener
But there are a number of aspects that make a comparison, or at least looking to the spirit of the O’Shea strikes as a guide, not as foolish as first appears. In fact, it is the other strategies that have been touted again and again by union officials that fly in the face of our history. The penal powers showed that the arbitration system is always stacked against the working class. The situation is the same today. The replacement of WorkChoices by Fair Work has, aside from some limited but significant gains around union rights and what may be included in bargaining, done nothing to improve the situation for workers, particularly insecure workers and those taking industrial action. The Qantas workers, the Victorian nurses and the warehouse workers at Baiada and Toll Somerton in Melbourne could attest to that. The O’Shea strikes showed us also that years of “boxing clever” (and the industrial representatives of the 1960s were very clever boxers) will neither challenge the underlying unjust laws, nor create a situation where workers are more confident to take action. It is only through direct confrontation that the situation can be turned around.
If we cannot rely on others, it leaves only one other option – to rely on ourselves. We need to rebuild what is lacking today: rank and file organisation and networks of politically-minded union militants. The confidence and knowledge of unionists may be in a parlous state, but there are indications that this does not have to be the case if serious building work is undertaken. The WorkChoices campaign, the recent nurses’ and teachers’ disputes in Victoria (some of the largest union mobilisations ever) and the 2012 Grocon picket by the CFMEU in Melbourne show that when a lead is given, workers will mobilise to defend their rights. The work of the National Union of Workers and its delegates in building up the capacity to lead successful pickets at Baiada in 2011 and Toll Somerton in 2012 show that on-the-ground preparation can still lead to successful industrial action. There are other examples of serious industrial action in a landscape that at first glance appears bleak, including the miners in the Bowen Basin and the Maritime Union in Western Austr
The Clarrie O’Shea strikes and the strike wave that occurred after it were the result of years of rank and file organisation, of strengthening the unions, of strikes that tested the water and lost, and a few that won. The cat
[i] Clarrie O’Shea case, correspondence, University of Melbourne Archives (UMA) Austr
[ii] The key histories of the Clarrie O’Shea strikes are John Arrowsmith, Abolish the Penal Powers: Freedom’s Fight of ’69, Trades Hall Council Administrative and Financial Review Committee, Melbourne, 1969 and Jack Hutson, Penal Colony to Penal Powers (revised edition), Amalgamated Metals Foundry and Shipwrights’ Union, Surry Hills, 1984 .
[iii] ALP leader Dr H.V. Evatt’s description of the Arbitration Court, made in the House of Representatives, 22 May 1956, http://parlinfo.aph.gov.au/parlInfo/search/ display/ display.w3p;db=HANSARD80;id=hansard80%2Fhansardr80%2F1956-05-22%2F0088;query=Id%3A%22hansard80%2Fhansardr80%2F1956-05-22%2F00 88%22.
[iv] Cited in Hutson, Penal Colony, p.238 and Arrowsmith, Freedom’s Fight, p.7.
[v] Hutson, Penal Colony, p.238.
[vi] For an extensive exposition of these systems, see Hutson’s seminal work Penal Colony to Penal Powers; for a shorter article, see J.E. Isaac, “Penal Provisions Under Commonwealth Arbitration”, Journal of Industrial Relations 5 (110), 1963.
[vii] Hutson, Penal Colony, p.243; original quote from Anatole France, The Red Lily, 1894.
[viii] These figures were widely circulated at the time and are available in Arrowsmith, Freedom’s Fight, p.2, Hutson, Penal Colony, p.243-244 and “Information for Unions: Penal provisions, fines on unions” (circular), Queensland Trades and Labor Council, 16 April 1969, UMA John Arrowsmith collection, 1971.0013. During a court case in August 1969, J.E. Heffernan of the Sheet Metal Workers Union tendered a document showing that unions had since 1954 paid $304,560 in fines and at least $116,652 in legal costs. “Paid $116,652 in employers’ legal costs, unions say”, Sydney Morning Herald, 6 August 1969.
[ix] Hutson, Penal Colony, p.236.
[x] See for example, Jack McPhillips, Penal Powers Cost Unionists £1,000,000, Current Book Distributors, Sydney, 1963 and Pat Clancy, No Real Democracy While Penal Powers Remain, paper presented at the Conference for Left Action, 1969, both held in University of Melbourne Special Collections McLaren/AX pamphlets collection.
[xi] Hutson, Penal Colony, p.276.
[xii] Interview with Clarrie O’Shea by John Merritt, January-June 1982, National Library of Australia Oral History Program, TRC.1126. Manuscript in Clarrie O’Shea collection, UMA 1988.0101, box 1 item 1/4/4.
[xiii] The margin refers to the amount of pay above the basic wage that was awarded to skilled workers.
[xiv] Diane Fieldes, Pains and Penalties: The Penal Powers of Arbitration, 1956-1970, unpublished BA Honours thesis, Department of History, Austr
[xv] Circular, “Decision of the ACTU Executive relating to Penal Provisions”, 22 May 1969, UMA AT&MOEA collection, 1974.0103, box 142, item 10/2/4.
[xvi] The five unions that received the most fines were, in order: the Waterside Workers Federation, the Amalgamated Engineering Union, the Federated Ironworkers’ Association; the Boilermakers’ and Blacksmiths (merged in the 1960s) and the Australasian Society of Engineers. Hutson, Penal Colony, p.244. Note the predominance of metal trades unions, although the WWF leads because of the severity of the implementation of the Stevedoring Industry Act.
[xvii] An interesting example of this is Hutson’s Penal Colony. The original 1966 edition lists ways to escape from penalties, including lifting the strike, coming to agreement with the employer, expelling the members involved, deleting the bans clause, deregistering the union or repe
[xviii] The Groupers were Industrial Groups organised by B.A. Santamaria’s Catholic anti-communist Movement.
[xix] Defeat Menzies’ Union-Smashing Act!, Trade Union Defence Committee, Melbourne, 1951, held in the University of Melbourne Special Collections Communist Party of Austr
[xx] Proceedings of the Communists and the Labour Movement Conference at the Melbourne State College, 23-24 August 1980; talk by Clarrie O’Shea and Laurie Carmichael on the penal powers dispute, State Library of Victoria Manuscripts collection, MS TMS 288-421.
[xxi] Isaac, “Penal provisions under Commonwealth arbitration”.
[xxii] Communist Party of Austr
[xxiii] For Solidarity with the wharfies, pamphlet issued by the Builders Labourers Federation, 1963, UMA Bernie Taft collection, 2010.0053, box 2, drawer 9, file Industrial policy 1963.
[xxiv] Report on the Amalgamated Engineering Union Melbourne District Conference, 1973, UMA Bernie Taft collection, 2010.0053, box 2 drawer 9, file Industrial policy 1963.
[xxv] R.M. Martin, “The ACTU Congress of 1963”, Journal of Industrial Relations, 5 (151), 1963. Martin, however, described the amendments as “symptomatic of the caution of the left-wing throughout the Congress that none of the amendments explicitly advocated a direct action campaign against the penal provisions, though the point was mentioned more than once in the course of the debate”.
[xxvi] Fieldes, Pains and Penalties.
[xxvii] R.M. Martin, “Australian Trade Unionism, 1964”, Journal of Industrial Relations, 7 (77), 1965.
[xxviii] R.M. Martin, “The ACTU Congress of 1967”, Journal of Industrial Relations 9 (265), 1967.
[xxix] Bernie Taft, handwritten notes, probably 1965, UMA Bernie Taft collection, 2010.0053, box 8 9/9/11. The CPA was also at the time consumed by the 1964 split of the “Peking-line” Communists, who went on to establish the Communist Party of Austr
[xxx] Hutson, Penal Colony, p.274.
[xxxi] Humphrey McQueen, “Work-Worker Control, 1960s-1970s”, http://home.alphalink.com.au/~loge27/work/work_control.htm (no longer available online).
[xxxii] See for example L.J. McPhillips, “Metal strike focus of rising militancy”, Tribune, 26 July 1967. Also, a commission including Jack McPhillips, Pat Clancy and other union leaders drafted a paper for the CPA Congress in 1966 which noted: “Current and prospective developments in all spheres of life increase the importance and enhance the role of the trade unions. Therefore they need a great extension of their demands, an increase in their political activities and a greater involvement of the workers under their leadership. This requires more cohesion and unity to ensure the adoption of policies and tactics by the trade unions which will strengthen the inevitable struggles of the workers for economic gains and progressive political objectives.” Draft of theme “C” on the trade unions, UMA Bernie Taft collection, 2010.0053, box 1, drawer 9, file 1966.
[xxxiii] For an in-depth discussion of this trend see
[xxxiv] Decisions of the Communist Party Congress, 1967, State Library of NSW Communist Party of Australia collection, ML MSS 521, box 1 (155). This was not some well-worn trope. There was a marked shift around the mid-1960s, with unionists in the CPA arguing that they were witnessing a growth in shop floor militancy.
[xxxv] Confront, No.1, October 1967, UMA Bernie Taft collection, 2010.0053, box 8 9/9/11.
[xxxvi] Jim Baird, “Skill and fines and ‘rock and roll’: the metal trades margins campaign of 1967-8”, The Hummer 2 (7), Summer 1996-1997, http://asslh.org.au/hummer/vol-2-no-7/skill-and-fines/.
[xxxvii] Bramble, Trade Unionism in Australia, p.35.
[xxxviii] David Worland, “Variations in award rates of pay and the absorption of over-award payments, 1959-1968”, Journal of Industrial Relations 14 (4), December 1972.
[xxxix] Figures from Fieldes, Pains and Penalties.
[xl] Hutson, Penal Colony, p.264.
[xli] Hutson, Penal Colony, p.265.
[xlii] Hutson, Penal Colony, p.265.
[xliii] Decisions of the Fourth Federal Conference of the Boilermakers’ and Blacksmiths’ Society of Austr
[xliv] Circular to all divisions, affiliated organisations and members of the Federal Executive of ACSPA, 19 May 1969, UMA Penal Powers Struggle (John Arrowsmith) collection, 1971.0013.
[xlv] Decisions of the National Committee at a meeting held 25-27 January, 1969, SLNSW Communist Party of Austr
[xlvi] The following account is taken from “Boilermakers’ Dispute”, Amalgamated Engineering Union monthly journal, February 1969, pp.20-22, UMA Amalgamated Metal Workers Union Collection, 2001.0038, box M17.
[xlvii] “Boilermakers’ Dispute”.
[xlviii] “Boilermakers’ Dispute”.
[xlix] Melbourne Trades Hall Council changed its name to the Victorian Trades Hall Council in 1968. To avoid confusion it will be referred to as the Victorian Trades Hall Council. The main accounts of the split are: “Unions in Conflict: The Victorian Trades Hall Split 1967-1973”, Labour History 36, May 1979, pp.47-69; and Michelle Grattan and Geoffrey Barker, “A House Divided; A Study in Trade Union Conflicts in Victoria”, The Austr
[l] David Plowman, “Unions in Conflict: The Victorian Trades Hall Split 1967-1973”, Labour History 36, May 1979, p.49.
[li] Take this note to the High Court (it is not known whether it was lodged) written by O’Shea on 12 May 1969: “Take Notice that there was and is no jurisdiction whatsoever to make the several bogus ‘orders’ against C.L. O’Shea and certain applications are being prepared to quash and otherwise deal with said bogus ‘orders’ forthwith and other process to restrain any further conspiracy fraud intimidation defamation etc and Gestapo treachery there under upon C.L. O’Shea.”, copy of temporary note filed with High Court by Clarrie O’Shea, 12 May 1969, UMA AT&MOEA collection, box 142, item 10/2/1/2.
[lii] This rather long and complicated story has been told many times and in various ways. This account is based on John Merritt, “The trade union leader who went to gaol”, Canberra Historical Journal 59, September 2007, pp.8-15; Hutson, Penal Colony, pp.266-267; J.T. Coulthard (General Secretary of the Federal AT&MOEA), “Campaign for amendment of penal clauses of the arbitration act”, (circular), 28 May 1969; and “Decision of the ACTU Executive relating to Penal Provisions” (circular), 22 May 1969, UMA AT&MOEA collection, 1974.0103, box 142, item 10/2/4.
[liii] “Unionists fed up with penal powers”, leaflet issued by the 27 Rebel Unions, UMA AT&MOEA collection, 1974.0103,
[liv] Proceedings of the Communists and the Labour Movement Conference at the Melbourne State College, 23-24 August 1980; talk by Clarrie O’Shea and Laurie Carmichael on the penal powers dispute, State Library of Victoria Manuscripts collection, MS TMS 288-421.
[lv] “Unionists fed up with penal powers”.
[lvi] Motion passed at delegates’ and shop stewards’ meeting, Festival Hall Melbourne, 15 May 1969, in Penal Powers Struggle (John Arrowsmith) collection, UMA 1981.0163.
[lvii] This and following quote from the proceedings taken from “Transcript of oral examination and conviction of O’Shea”, 15 May 1969, UMA AT&MOEA collection, box 142, item 10/2/1/1/7.
[lviii] John Hamilton, “The day they arrested Clarrie O’Shea – and the men went wild”, The Age, 16 May 1969.
[lix] Arrowsmith, Freedom’s Fight, pp.13-14.
[lx] Arrowsmith, Freedom’s Fight, p.15.
[lxi] It appears that these minutes differ slightly from the formal minutes of the meeting. They may be the rough versions, as they are handwritten from Friday 16 May onwards. They contain more information about the discussion than the formal minutes and the differences seem to be based on omission rather than contradiction. ACTU Executive minutes, 15 May 1969, p.8, UMA Victorian Trades Hall Council collection, 2001.0020, box 4, item 36/1968-1969.
[lxii] “200,000 will be out today”, The Sun, 16 May 1969.
[lxiii] Arrowsmith, Freedom’s Fight, p.22.
[lxiv] “Historic strike wave defies penal system”, Tribune, 21 May 1969.
[lxv] Minutes of the Special Meeting of the ACTU Executive, 21 May 1969, UMA Victorian Trades Hall Council collection, 1978.0082,
[lxvi] ACTU Executive minutes, 15 May 1969, p.29, UMA Victorian Trades Hall Council collection, 2001.0020,
[lxvii] “Queensland crippled. Victoria, SA ‘shut down’ today”, Sydney Morning Herald, 20 May 1969.
[lxviii] Trades and Labour Council of Queensland report, 27 May 1969, “Protest stoppage held 19th May 1969”, UMA Penal Powers Struggle (John Arrowsmith) collection, 1981.163.
[lxix] ACTU Executive minutes, Melbourne 15 May 1969, p.31, UMA Victorian Trades Hall Council collection, 2001.0020, box 4, item 36/1968-1969.
[lxx] Arrowsmith, Freedom’s Fight, p.23.
[lxxi] ACTU Executive minutes, 21 May 1969, p.2, UMA Victorian Trades Hall Council collection, 2001.0020, box 4, item 36/1968-1969.
[lxxii] Clarrie O’Shea case, correspondence, UMA AT&MOEA collection, 1974.0103, boxes 142-143, item 10/2/2.
[lxxiii] “Strikes and Sanity”, The Age editorial, 20 May 1969.
[lxxiv] Arrowsmith, Freedom’s Fight, pp.19-20.
[lxxv] “Historic strike wave defies penal system”, Tribune, 21 May 1969.
[lxxvi] “Penal fight to go on, say unions”, The Age, 21 May 1969.
[lxxvii] “South Austr
[lxxviii] Arrowsmith, Freedom’s Fight, p.23.
[lxxix] “Dudley MacDougall came out of the blue – with $8600”, The Age, 21 May 1969.
[lxxx] Proceedings of the Communists and the Labour Movement Conference.
[lxxxi] Minutes of the Special Meeting of the ACTU Executive, 21 May 1969, UMA Victorian Trades Hall Council collection, 1978.0082, box 320, item 15/2/1/3.
[lxxxii] “One man ends O’Shea deadlock – but NSW transport strike goes on”, Sydney Morning Herald, 21 May 1969.
[lxxxiii] Arrowsmith, Freedom’s Fight, p.32.
[lxxxiv] NSW and WA figures from “ACTU to have new talks with Ministers”, Sydney Morning Herald, 23 May 1969.
[lxxxv] “Victoria par
[lxxxvi] “Decision of the ACTU Executive relating to Penal Provisions” (circular), 22 May 1969, UMA AT&MOEA collection, 1974.0103,
[lxxxvii] ACTU Executive minutes, 21 May 1969, p.8, UMA Victorian Trades Hall Council collection, 2001.0020, box 4, item 36/1968-1969.
[lxxxviii] Hutson, Penal Colony, p.272.
[lxxxix] Hutson, Penal Colony, p.233.
[xc] See for example, “Settlement averts penal clauses clash”, Sydney Morning Herald, 28 October 1970.
[xci] See for example “Unions Must Pay Those Fines, Say Employers”, The Sun, 24 April 1971, and Eric Walsh, “The Union Fines War is Erupting on a New Front”, The National Times, 26 April 1971.
[xcii] Hutson, Penal Colony, p.272.
[xciii] Hutson, Penal Colony, p.273.
[xciv] All following figures are from Bramble, Trade Unionism in Austr