Fighting anti-union laws: the Clarrie O'Shea strikes

On 15 May 1969, the industrial court and the conservative Menzies government jailed union leader Clarrie O’Shea for refusing to allow the court access to his union’s accounts. The Tramways Union had been fined under the penal powers, the coercive sections of the Arbitration Act, for taking industrial action. The penal powers had been used by the bosses more and more frequently in the lead-up to 1969, leading to bitter hostility amongst the working class. The reaction to the jailing of O’Shea was immediate. Across the country somewhere in the order of one million workers stopped work in the week following the jailing, often in defiance of their own union officials or regional union councils.

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 Tom Barker, who as editor of the Industrial Workers of the World’s paper Direct Action had been imprisoned for opposing the First World War. He wrote to O’Shea from England, at the age of 82, “I knew your Melbourne Trades hall 60 years ago. I wish you and your pals everything well in the struggle your and other unions are engaged in.” As well as the workplace and stopwork meeting telegrams, there were dozens of personal messages: little floral cards or handwritten letters that make it clear that O’Shea had garnered the support of so many because of the stand he had taken against an unjust law.

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 Australia or the Minister for Employment. Provisions have been used dozens of times every year to end strike action. Indeed, the fines that unions now pay are in real terms worse than those incurred under the penal powers. A quick look at Federal Court decisions show that unions were charged at least $5.4 million in fines, compensation and costs in 2011 and 2012 alone. In the twelve years from 1957 to 1969, the period of the most widespread use of the penal powers, unions were fined, in today’s value, $7.9 million. Anti-union laws are being used once again to prevent any revival of serious industrial action, following a period of long retreat by the unions. We have seen a few important instances of defiance, notably by the construction union and in Victoria by nurses and Catholic school teachers. However there is a crying need for much stronger action to combat these laws.

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 radicalise. The campaign against the Vietnam War and other mass social movements were starting to reverberate throughout the working class, especially amongst the youth, as they intersected with dissatisfaction at the limits of the post-war economic boom, from which the working class received relatively little gain.

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 Australian industrial arbitration system has always been stacked against the working class, most obviously in the long-standing restrictions on the right to strike. Under the first federal Conciliation and Arbitration Act passed in 1904, all strikes and lockouts were illegal, penalised by fines of up to £1000. This was amended in 1930 by the Scullin Labor government, when most of the penalties for strikes were revoked, although penalties for breaches of awards remained. This mild reprieve lasted only a short time; penalties were strengthened under the Chifley Labor government when the Arbitration Court was made a Court of Superior Record, giving it the power to impose penalties for contempt of its orders. In 1951 the conservative Menzies government increased the penalties for contempt to £500 for an organisation, £200 or 12 months’ imprisonment for an official and £50 for a union member. A High Court decision in 1956 in favour of the Boilermakers Union led the Menzies government to split the functions of the Arbitration Court, establishing the Conciliation and Arbitration Commission and the Industrial Court.

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 alike from sleeping under bridges.[vii] The figures from the Department of Labour and National Service tell the real story. Between 1956 and 1968 unions were fined 799 times, a total of $282,410.[viii] Legal costs were also awarded on these occasions and it has been estimated that they cost the unions almost as much as the fines themselves. Employers regularly breached awards, but for the same period they were fined just $2,978 – 0.9 percent of the fines paid by unions. Industrial Court Judge Gallagher disclosed the core rationale for the penal provisions when he said during the 1964 national wage case” “I think that there is no such right to strike and the sooner that belief is abandoned the better for this country and the better for every working man in this country.”[ix]

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 capitalist (or “monopoly”) system and that the penal powers were just the coercive means to discipline those that did not comply.[x] Whether or not communist union officials carried this rhetoric out in practice, it was certainly a massive advance on the argument from the right that the arbitration system was a blessing for workers and that it was unworkable without some form of penalty. The confidence of the right to make such arguments varied over time, but one example was Charlie Oliver at the 1962 convention of the NSW branch of the Australian Workers Union: “We know the benefits that have come to this union from the arbitration system. We could not do without it. Take away the penal clauses and you destroy the system.”[xi]

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 Australian Council of Trade Union (ACTU) congress debates leading up to 1969. From 1957, the demand for repeal of the penal powers was ACTU policy.[xiv] But the strength of the motions condemning them and the question of active opposition tended to be a function of the relative weight of the left and right at the congress. It was not until after the Clarrie O’Shea strikes that the ACTU supported a policy of refusing to pay fines and supporting those unions who might be punished for such.[xv]

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 generalised or carried through to refusing to pay fines. While the rhetoric may have been bitterly hostile to the penal powers, it was the inaction of the Communist union leaders that meant that there was no serious, generalised campaign. Too often, it seems that the Communists felt that the campaign needed the official endorsement of the ACTU. Or they envisioned clever manipulation of the arbitration system rather than mass action to make the legislation a dead letter.[xvii] If the left union officials had refused to pay fines earlier, particularly around a number of strikes in 1963-1964, there may well have been scope for such a campaign.

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 radicalisation, particularly amongst young workers. There were a number of aspects to this: a small, but important rise in the number of strikes; growth in rank and file organisation, particularly the shop committees; the general political radicalisation of society; and in early 1968 an explosion of strikes in the metal industry. The period saw employers increasingly resorting to the use of the penal powers. Humphrey McQueen described the working class scene in the late 1960s as not so much “a prairie but a powder-keg”.[xxxi]

What pushed the Communists onto the front foot was a sense of the radicalisation of rank and file unionists. In 1966-67, the CPA began to talk of the growth of a layer of young workers who were thrusting the union movement into a more militant frame of mind.[xxxii] This was linked both to the political ferment that was growing around the Vietnam War and the student movement, as well as to a growing sense that workers were not receiving their fair share of the economic boom. The contradictions in the politics of the Cold War and the limits of the prosperity that the boom was meant to provide were the key (although not the only) factors in the radicalisation.[xxxiii] Communists argued that the union movement needed a more offensive stance. The 1967 CPA Congress document proclaimed, “New forces from the growing grouping of white collar workers and intellectuals are entering industrial and political activity in increasing numbers. Radical ideas and action are having a marked appeal to young people.”[xxxiv] In October 1967 Communists in the metal industries issued a new paper, called Confront. The rationale for producing a new paper was that “we are witnessing perhaps the widest development of militancy yet seen in Australia.”[xxxv]The Communists correctly gauged the mood. There was also an increase in the organisation of shop committees despite the ambiguous attitude of the right and the ACTU towards them, particularly in the metal, waterside and power industries.[xxxvi] The number of strike days did not reflect this movement, but the number of strikes had increased to the highest level in a decade. The stoppages were shorter, often because of the threat of the penal provisions, but also because more of them were undertaken without prior sanction of their unions.[xxxvii]

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 Australia, seven rank and file boilermakers showed how to stand up to the penal powers and win.[xlvi] In June, 1968, they had gone on strike after one of their fellow union members had been replaced. The employer, J.W. Storer Engineering, and the WA Employers’ Federation took out orders against the men. They returned to work and assumed the charges would be withdrawn. Instead they were told that they had been sacked, but were reinstated following intervention from the union. Soon after this the firm went under, but the Employers’ Federation continued with the pressing of charges. On 11 October the men were fined $30 each for going on strike and failing to obey an order to return to work (the union itself had already been fined $750). They were told that failure to pay the fines within 14 days would result in a 30-day jail sentence. The boilermakers told their union that they would refuse to pay the fine, the AEU Monthly Journal noting that “They considered that in view of the vicious nature of the penal clauses of the Act, they would make a stand and go to gaol if necessary to assist in the campaign to highlight the situation and have the Act amended.”[xlvii] On 5 November the WA Trades and Labour Council declared their support for the men. A meeting of union executives, shop stewards and delegates on 7 November voted to organise a statewide strike of all non-essential industries in the event that the men were sent to jail. Over the next couple of days, “From Wyndham in the North to Albany in the South, advice was flowing for a general stoppage. Offices of the Council and officials of the Unions have never experienced the amount of unity and determination that developed during that period.”[xlviii] On 11 November the TLC was informed that an anonymous benefactor had paid the fines and the matter was dropped, although the TLC declared its intention to continue to press for the amendment of the penal provisions.

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 penalised. They called the delegates’ and shop stewards’ meeting that voted on the first 24-hour strike of the week-long events, and it was through the Rebel Unions that Maoists like O’Shea and Paddy Malone worked with other communists, particularly Laurie Carmichael of the AEU, to organise the campaign.

“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 realised that he did not actually have the power to collect the fines (although this is how the system had operated for the previous decade) so in March 1967 a new provision in the Act gave the Registrar the power to obtain an order from the Industrial Court to compel a union official to appear for examination.

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 Tom Pesteranovich, who had scabbed during a stoppage. Eventually this resulted in further fines of $2,400, bringing the total back up to $8,100. On top of that, $5,076 in legal costs from the High Court cases (again, when the union was defending a decision of the Commission) was paid after the sheriff took possession of the Sydney office. In early 1969, the Registrar obtained a summons for O’Shea to appear with the union’s financial records. The summons was set for 20 March. On 6 March, the Australian Council of the Tramway Union met in Hobart and passed the following motion: “Council gives notice in the event that the Court seeks to collect such fines and costs from other branches or proceeds against the person of the Victorian Branch Secretary or any other officer of the union, immediate stop work action will take place in all States to determine on further industrial action against the application of the Penal Clauses to our Union. Such action to be mandatory on all Branches.”[liii] In a 1980 talk at the Communists in the Labour Movement conference, at which Laurie Carmichael and Clarrie O’Shea spoke about the campaign, it was recalled that Carmichael was also in Hobart and that they worked closely on the motion and the subsequent events.[liv]

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 Australia, but this figure could well downplay the actual numbers because many of the strikes were localised (just shops, factories or ships) and unauthorised. There has not been another point in the history of the Australian labour movement when so many workers took strike action without the authorisation of their unions, the state Labour Councils or the federal body. When going through the events, it is worth bearing in mind that the ACTU, Victorian Trades Hall Council and the NSW Trades and Labour Council all refused to coordinate action and in some cases were openly hostile to it.

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 Australian Tramways and Motor Omnibus Employees’ Association (AT&MOEA) called 4-hour stopworks in NSW, Queensland, South Australia and Tasmania. In NSW, 13 unions called a stopwork and 5,000 workers marched through Sydney. In Darwin, waterside workers walked off the job.[lxiii] Tribune estimated that half a million workers took industrial action the day after O’Shea was jailed.[lxiv]

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 Australian Workers’ Union, along with the WWF, Boilermakers and Blacksmiths, the AEU, FEDFA and ETU staging a march of around 1,000 unionists through Darwin. There were also reports of miners striking in Tennant Creek and Gove.[lxx]

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 Australian Labor Party opposition to sections one zero nine and one one one[.] today party moved following urgency motion quote the urgent necessity to achieve justice and good will in industry by providing effective conciliation machinery for the prevention and settlement of industrial disputes and by repealing the labour injunction and related contempt provisions of the present conciliation and arbitration act unquote[.] government thereupon carried motion to gag debate in the only parliament which has passed or can repeal these sections.”[lxxii]

Tuesday, 20 May

The Age hinted at the panic that was starting to set in: “Australia appears to be drifting towards total industrial disintegration.” The editorial went on to argue for the reconsideration of the use of penal powers: “They do not stop strikes; they do not effectively uphold decisions of the Arbitration Commission; they are unjust because, in fact, they restrict the rights of unions in industrial disputes. There are two further persuasive pressures on the Commonwealth: first, it has now seen the massed industrial strength of the Tramways Employees Association and its 26 ‘rebel’ union allies; second, it knows the ‘official’ trade union movement fully supports the principle they are seeking to establish, even if it is disturbed by their tactics.”[lxxiii]

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 Australia, the Trades and Labour Council called a general strike resulting in the largest stoppage in the state’s history, with over 100,000 off work and a meeting held in the St Claire Youth Centre in Woodville which attracted 5,000 unionists.[lxxvii] There were also meetings in Port Pirie, Whyalla and Port Augusta.[lxxviii] Tasmania experienced a general strike, with unions covering 80 percent of the workforce going out. In Canberra, 14,000 unionists struck. The Governor-General had to cancel functions because his chauffeur was on strike. There was a meeting of 3,000 in Darwin. In NSW, 6,000 waterside workers struck and 20 unions called for a 24-hour strike for Thursday.

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 Australian Financial Review, Dudley MacDougall had walked in to the Registrar’s office and paid both the union’s fines and O’Shea’s personal fines. MacDougall said that he had won money on the Opera House lottery and explained his actions this way: “I could sense a confrontation between might and right, and that is disastrous to the whole community. My pigmy effort is just a gesture to avert this direct confrontation which can only mean hardship to the man and woman in the street and the country itself.”[lxxix] Decades later, Clarrie O’Shea still maintained that ASIO had something to do with paying the fines,[lxxx] but nothing has been proven. MacDougall was a friend of ACTU President Albert Monk and had contacted him earlier in the day to let him know of his plans, although Monk declared in his report to the ACTU Executive that he would not be a party to the fines being paid.[lxxxi]

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… Australian 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 Australia was called, with members of the 85 affiliated unions called out, an estimated 100,000.[lxxxv] The Musicians’ Union participated, so the WA Symphony Orchestra cancelled a concert, and musicians and bands playing in hotels and on TV did the same.

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 Australia and many were from unions that did not officially support the strikes. The ACTU must have been flooded with them. Indeed the minutes of the special executive meeting on the Thursday which record the debate over how the ACTU should respond (it eventually called on all affiliated unions to stop paying fines) acknowledge this. Vice-President Jack Petrie argued in favour of the stronger stance because there “must be a clear positive decision put to [the] rank and file which will restore authority to union leadership.”[lxxxvii]

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 dealing with the insertion of a bans clause into an agreement that would make it more difficult (although not impossible) in the future. The other change was that in order to obtain a fine under the penal provisions, the employer needed first to receive a certificate from the Presidential Member of the Commission.[lxxxix] After the changes, a number of employers applied for the certificates but only one was successful, and an agreement between the union and employer was made before that fine was levied.[xc]

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 radicalisation in society and the lifting of the legal restraints on industrial action, led almost immediately to a massive strike wave. By 1971, 30 percent of workers were involved in strike action.[xciv] Strikes peaked in 1974, as did the rate of unionisation two years later, at 56 percent. This strike wave won many of the basic conditions that most permanent workers still enjoy today. The average weekly earnings and award wages for male workers rose in real terms by 30 percent between 1968 and 1974, while award rates for women rose 21.2 percent as workers demanded the implementation of the equal pay case decision. The share of wages as a percentage of the GDP rose to its highest level ever. Four weeks’ annual leave was won. It is doubtful that the upsurge in industrial struggle that won such gains would have been possible without the defeat of the penal powers and the sense of strength it inspired.

Conclusion

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 generalised political radicalisation in society. There was also a network of union leaders belonging to the Communist parties or the left of the Labor Party and rank and file organisations and committees, all of which are virtually non-existent today.

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 Australia.

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 catalyst was a section of the union movement with a commitment to rank and file organisation; and an important factor was whether union leaders or shop stewards and delegates were organised in parties in which the political aspects of the struggle were deemed to be as important. These unionists made a conscious decision to take on the penal powers, to defy the unjust laws. Surely these are lessons that are just as useful for today.