A
RBITRATION IN
W
ESTERN
A
USTRALIA
DAVIDH. PLOWMAN* ANDGENEVIEVECALKIN*
W
estern Australia was the first of the Australian states to legislate for compulsory arbitration. It did so in 1900. The paper presented here examines the paradox of this legislation. It was passed through an Upper House in which employers, who opposed the Bill, decided not to kill the legislation as had happened in other states. Instead, they so amended the Bill that the resultant Act proved inoperable. This Westralian legislation challenges some of the explanations offered for the introduction of compulsory arbitration in other states. Sweating was not an issue in Western Australia—at least not for those who were the intended beneficiaries of the Act. Voluntary arbitration had been tried, and unlike the experience in other parts of Australia, it had proved successful. This would suggest that there was no need to bypass the ad hoc, informal and voluntary dispute settlement system that had been employed. Employers, claimed by some as the architects of compulsion in the eastern states, did not initiate the Westralian legislation and opposed it. In contrast, unions, also claimed as the source of arbitration legislation, were in their embryonic stage and did not have the capacity to directly affect legislation. The same could be said of labour’s political wing. There was only one Labor member of the Lower House when the legislation was passed. Thus, Labor had little scope to support the legislation or to affect its form. The role of ‘liberals’, which has been seen as an important ingredient in arbitration in other states, was small and insufficient to affect outcomes in the Western Australian parliament. It is contended that a conflux of local factors explains the origins of compulsory arbitration legislation in WA. The first was political expediency that enabled Western Australia’s long-time premier to maintain office and thus secure a role in the first Australian parliament. The second was the need to modernise the state’s employment laws to take account of the collective activities that had increasingly accompanied employment relations since the early 1890s. The third factor was employers’ capacity to reduce the effectiveness of the compulsory elements of the legislation and to use it to chloroform unions.INTRODUCTION
The year 2002 marked the centenary of the first judgement issued by a Court of Arbitration in Australia. This occurred in Western Australia, that state being the first to make provision for compulsory arbitration. It did so at a time of industrial peace; at a time of economic prosperity; at a time when unionism in the state was still in its embryonic development; and at a time when neither
Labor nor ‘liberals’ were sufficiently well represented in Parliament to determine legislative outcomes. These factors challenge much of the received wisdom regarding the adoption of arbitration by Australian legislatures.1
The paper presented here explores the origins of compulsory arbitration in WA. The next five sections examine the Westralian experience in the light of factors that have been claimed to have influenced the adoption of compulsory arbitration in eastern Australia and in New Zealand, namely: the elimination of sweating; the failure of voluntary arbitration; employer initiation; union influence; and ‘Lib-Lab’ legislation. The penultimate section examines the special circum-stances in Western Australia and argues that taken together, three factors go a long way in explaining the Western Australia paradox: political expediency; the need to take account of changing economic circumstances and to remove collective industrial action from the laws of conspiracy; and employers’ capacity to minimise the reach of compulsory arbitration. The final section is by way of summary and conclusion.
ELIMINATION OF SWEATING2
During the 1890s there was significant concern with sweating in Britain and in parts of Australasia. Royal Commissions in the UK, New Zealand and Victoria highlighted the pervasiveness of sweating and recommended State interference to overcome it.
The development of compulsory arbitration in the context of public concern about sweating gave rise to arbitration being associated with the prevention and removal of sweating. Writing of the New Zealand experience, one in which compulsory arbitration had been introduced in 1894, Woods notes that:
. . . within a few years the Act led to widespread wage-fixing by a state tribunal, and since one of the benefits claimed for this innovation was the elimination of ‘sweating’, there has been a tendency to see the Arbitration Act as a piece of social legislation which was deliberately aimed at establishing minimum wage levels (Woods 1974: 37).
One who sees a direct link between sweating and arbitration is Fairburn. He describes the (New Zealand) Arbitration Act as ‘legislation against sweating’ (Fairburn 1975: 11). This connection was also openly canvassed by the architect of the New Zealand system, William Pember Reeves. The New Zealand experi-ment resulted in much foreign interest including the English Webbs (1897), the French Metin (1901), and the American Henry Demarest Lloyd. Lloyd’s book,
This view has been questioned. Thus, in his treatise on the first 40 years of arbitration in New Zealand, Holt comments:
Reeves never talked about regulating the conditions of labour or eliminating sweating when the Bill was before parliament in the early 1890s, although he may have shared the view, spelt out by the Sweating Commission of 1890, that where unions existed ‘wages do not sink below a living minimum’. Moreover, Reeves had predicted on many occasions that most disputes would be settled voluntarily before conciliation boards and that appeals to the Arbitration Court would be ‘very few and far between’. Had this turned out to be true it is hard to see how any general system of wage-fixing by the state could have emerged. To describe the Arbitration Act as ‘legislation against sweating’ is to confuse intention with outcome (Holt 1986: 33–4).
Though it is undoubtedly true that the New Zealand system, and subsequently the Australian arbitration systems, had the capacity to remove sweating through their establishment of minimum wages and conditions of employment, this was not the reason for their introduction. Such was a subsidiary function, an unintended consequence of establishing machinery to prevent and settle industrial disputes. Indeed, it gives rise to what may be termed the ‘arbitration paradox’, namely ‘that a system set up to solve one set of problems flourishes by solving completely different ones’ (Walsh & Fougere 1987: 189). That is to say, having been introduced to prevent and settle industrial disputes, the Court’s major function turned into providing minimum standards of employment. ‘None of this would have happened’, writes Holt, ‘without Reeve’s Act and in this sense Reeve’s experiment was a success, but it was the kind of success achieved by the hunter who went out seeking wild boar and came back bearing a stag’ (Holt 1986: 53).
Thus, despite subsequent rhetoric to the contrary, it would be wrong to think that the Westralian architects of arbitration were seeking machinery that would remove the evils of sweating. If the intent was the removal of sweating, a simpler method was provided by the wages boards system established in Victoria, and subsequently adopted in Tasmania, New South Wales, South Australia and Queensland. In the last three states, compulsory arbitration operated, in large measure, in concert with the wages boards system, a further suggestion that the removal of sweating was not the intent of compulsory arbitration. Indeed, Western Australia was the only state not to establish wages boards—yet another way in which its industrial legislation differed from other states.
FAILURE OF VOLUNTARY ARBITRATION
Voluntary arbitration was an established part of industrial relations in Australia and other countries by the 1890s. In the Australian context, voluntary arbitration had been common in industries with strong unions such as building, coal mining and seafaring (Fitzpatrick 1941: 289–97; Coghlan 1918: 1488). This private voluntary system did not survive the test of the 1890s. Neither did Barton’s voluntary arbitration Act of 1892 (NSW).
Following the maritime strikes, the Royal Commission on Strikes in New South Wales recommended the establishment of state machinery for the resolution of industrial disputes. The Commission noted:
No quarrel should be allowed to fester if either party were willing to accept a settlement by the State tribunal. . . . Industrial quarrels cannot continue without the risk of their growing to dangerous dimensions, and the State has a right in the public interest to call upon all who are protected by the law to conform to any provision the law may establish for settling quarrels dangerous to the public peace.
Reeves comments: ‘Pity that the Commission did not advise, and the New South Wales Parliament thereupon enact, a law effectual to give force to this excellent declaration of principle’ (Reeves 1902: 81). Voluntary arbitration machinery proved ineffective since employers refused to allow the voluntary machinery to hear union grievances. Indeed, not only did employers avoid state arbitration machinery, they also repudiated agreements made with unions prior to the strikes to refer disputes to voluntary arbitration (Fitzpatrick 1941: 313–14). Coghlan notes of the NSW voluntary arbitration Act that:
The Act had no success. It required for its proper working an amount of goodwill between employers and employees entirely lacking under the conditions then existing in the colony, and during the year following its enactment only two cases, one of conciliation and one of arbitration, were carried to a successful issue. In six other cases negotiations were instituted fruitlessly and in eight cases the employees applied to the councils but the employers refused to accept mediation. The important strike at Broken Hill in 1892 was among the last class of cases (Coghlan 1918: 1476).
There is strong evidence to suggest that the failure of voluntary arbitration led to the introduction of compulsory arbitration in both New Zealand and New South Wales. Reeves, the originator of the New Zealand Arbitration Act, spent much of his Second Reading speech outlining the problems and failures associated with voluntary arbitration machinery in Britain, France, Germany and the USA. Much of his reasoning is reproduced in the second volume of his book (Reeves 1902: 69–107). After describing the work of some 53 permanent conciliation boards in the UK and that of the voluntary conciliation and arbit-ration boards established by Sir Rupert Kettle and Mr Mundella he writes:
stirred to hope that the industrial millennium is above the horizon. Yet turn to hard, matter-of-fact records, and note that the number of labour conflicts in the thirteen years, 1889–1901, has been 10,792. Clearly the ‘growth of industrial peace’ so cheer-fully, almost jauntily, chronicled by enthusiastic believers in voluntary arrangement, is about as slow as the conversion of the Jews to Christianity. Voluntary arrange-ment has been earnestly urged and patiently tried for many years in England. What is the outcome? Eleven thousand conflicts in thirteen years. In the United States— not to speak of France, Italy, and Spain—the picture is darker. There mercenaries shoot down strikers, unpopular managers are assassinated, the militia has to be called out and has to fire on rioters, cavalry charge crowds, and unionists are put on their trial charged with poisoning ‘blacklegs’ (ibid: 80).
In his Second Reading speech Reeves concluded:
What I think is this—after closely studying the working of these boards elsewhere that unless you have in the background an arbitration court, the conciliation boards will not be respected, and they will be virtually useless (quoted in WAPD 1900: 477).
It is evident from the marginal notes in the Westralian Act that it was strongly influenced by the New Zealand Act. The New Zealand experience was a recurring theme in the parliamentary debates. Both advocates and opponents of the Bill found much from the New Zealand experience to garnish their own cases. Indeed, Mr James, a strong advocate of the Bill, was referred to in debates as ‘The Member for New Zealand’ (ibid: 415). The establishment of district-based Boards of Conciliation and a central Court of Arbitration were but two of the many features copied from the New Zealand Act.
Though voluntary arbitration proved deficient in the case of the eastern colonies, the same cannot be said for Western Australia. The first major strike in the colony occurred in the Perth building industry in 1897. It lasted just over one week when unions capitulated (Merritt 1962). In 1899 there was a second major strike brought on by employers seeking to extend their freedom of contract victories in the eastern ports to Fremantle. The dispute, in which employers lost public support, was settled by voluntary arbitration. Workers chose Catholic Bishop Gibney as their representative; employers chose the Chair of the Methodist Conference; and these two chose Anglican Bishop Riley as Chair.5 The Salvation Army, ‘incensed by what it considered to be the employers’ intran-sigence’ made its own contribution and declared that their members would not ‘take passage by any of the steamers owned by the Steamship Owners’ Association’ (Vanden Driesen 1981). This situation may be compared with the Eastern States where Cardinal Moran strongly supported wharf strikers while the Anglican Archbishop of Queensland worked on the wharves as a strike breaker (Fitzpatrick 1941: 309).
EMPLOYER INITIATION
The notion that compulsory arbitration was an employer attempt to keep defeated unions down is suggested by Fitzpatrick and the early school of union writers. Fitzpatrick writes:
When the great strikes were over, and there was no longer any doubt as to whether Capital could maintain the right to control industry without reference to Labour, a modus vivendi had to be found, by which the beaten unionists could be induced to accept their lowly status. The system resolved upon by the responsible government of the colonies was the compulsory conciliation and arbitration of industrial disputes, and it was within this system, during the ‘nineties and the early years of the twentieth century, that Australian and New Zealand trade unionism was reorganized on a reconstructed basis; legal and political preoccupations displaced ‘industrial’ or ‘direct’ action in primacy in trade union affairs (Fitzpatrick 1941: 256).
Fitzpatrick has been most keen to prove that arbitration was not a Labor Party contribution. After reviewing developments in New South Wales during the 1880s and 1890s, developments that included three attempts by employer-dominated legislatures to introduce arbitration, the last (and successful attempt) just after the strikes of the 1890s, he concludes:
In other words, arbitration legislation came from the employers’ side of politics within a month or two of the smashing of the shearers’ strike in New South Wales and Queensland. . . . The arbitration system was of the masters’ making, not the men’s (Fitzpatrick 1968: 153).
Fitzpatrick claims that by the time Kingston introduced the Arbitration Bill into Federal Parliament employers had begun to be repelled by their own invention:
By that time, the capitalist invention of state arbitration had begun to take on the aspect of Frankenstein’s monster, to the capitalists. E.E. Smith, president of the Australian Employers’ Federation, furiously attacked the Commonwealth Act of 1904, in his address to the employers’ federal conference next year. ‘It is purely class legislation’, he said, ‘and is for the purpose of strengthening the labor unions’ (ibid.).
In South Australia, Kingston’s compulsory arbitration Bill of 1890, the first Bill for compulsory arbitration, suffered at the hands of the employer-dominated Legislative Council. After being ‘the sport of three sessions’ it was discharged without any of its compulsory elements (Coghlan 1918: 2104). South Australia finally legislated for compulsory arbitration in 1912. In Victoria, the Employers’ Union considered compulsion ‘dangerous in principle and inoperative in practice’ and used its parliamentary influence to prevent such legislation (Chan 1971). Trenwith introduced Conciliation and Arbitration Bills into the Victorian parliament in 1900 and 1901 but to no avail (Mitchell & Stern 1989: 127). Bills were again unsuccessfully introduced into this parliament in 1904 and 1905, again to be rejected by the employer-dominated legislature (ibid). Through Supreme Court action and open defiance, Victorian employers were also successful in removing any casting vote arbitration by the Chairmen of wages boards (Plowman 1988: 378). Tasmania, with its employer-dominated Legislative Council, rejected Industrial Arbitration Bills introduced in 1900, 1901, 1903 and 1904 before opting for wages boards. Queensland’s parliament rejected the Industrial Conciliation and Arbitration Bill 1894and had to wait for the advent of a Labor government before legislating for arbitration.
By 1904, four Australasian parliaments had legislated for compulsory arbitration, the first being that of New Zealand. We are told that:
When Reeves circulated a proposed arbitration law the opposition of employer associations was so ferocious that he did not even bother to introduce it in the House. He tried again in 1892 but his proposals for reform were simply blocked in the Legislative Council…In 1894, as Minister for Labour in a government returned with a thumping majority and the automatic veto of the Legislative Council largely removed, he returned to the charge in introducing his revised Industrial Conciliation and Arbitration Bill. [The arbitration legislation was passed] in the teeth of contin-uing and rancorous opposition from employers, landowners and their parliamentary spokesmen (Simpson 1987: 149).
In 1901 New South Wales legislated for a seven-year trial period of compulsory arbitration. Employers did their utmost to ensure the failure of the legislation. They refused to register their own organisations under the Act; they had regis-tered bogus unions; they sought to choke the Court with work and to lengthen proceedings; they used legal representation to increase costs to unions; they successfully used the Supreme Court to reduce the Industrial Court to a ‘sinking hulk’ (Plowman 2002: 2–3). With the change in government shortly after the passage of the Act, employers used their majority in the Legislative Council ‘to kill the Act by inaction and refused for years to make any amendments which were required in consequence of unexpected legal decisions’ (McCarthy 1968: 190).
circumscribing the Court’s role. After 1913, however, their legal actions were counterproductive and served to open up the ‘new province for law and order’ (Plowman 1989: 147–52). The frequency of employer High Court challenges was such that Attorney General Garran noted that the industrial power came to play ‘a greater part in political history and legal controversy than the whole of the rest of the Constitution put together’ (Garran 1958: 464).
The above would suggest that Fitzpatrick’s view that compulsory arbitration was an employer initiative is misplaced. It is unlikely that employers, who wrecked voluntary arbitration because of its third party adjudication mechanisms, would then seek a system of compulsory third party adjudication.
The Western Australian experience does not support the contention that employers initiated compulsory arbitration. The Industrial Arbitration Act 1900
was passed against the wishes of many employers; in the face of veiled threats by mining companies to close their operations; in the light of threats by British investment companies to refrain from lending capital to the State if the legis-lation was passed; after significant delays; and after amendments that made the Act unworkable.
This lack of initiation, however, evokes yet another paradox in the Westralian legislation for compulsory arbitration. Despite opposition to the Bill, employers did not vote the Bill down. This calls for explanation, a matter dealt with in a subsequent section.
UNION INFLUENCE
There is a line of literature that sees compulsory arbitration deriving from union needs and interests. The acceptance of compulsory arbitration by unions is a necessary condition for its initiation and its success. As Wise, author of the NSW Arbitration Act noted, ‘arbitration without unions would be like having the play ‘Hamlet’ without the part of Hamlet’ (Wise 1909: 314).
The essence of compulsory arbitration is that unions make a choice: the open market where strikes and lockouts form part of negotiations; or compulsory arbitration where the ‘barbarous expedients’ are replaced by court-imposed settlements. Generally, unions around the world have been divided on the merits of arbitration. Those unions with the capacity to force recognition upon, and wring concessions out of, employers have been opposed to compulsory arbitration. To these unions compulsory arbitration means ‘surrendering control of their own destiny to an unpredictable and untrustworthy judge who would almost certainly be a man of upper or middle class’ (Holt 1986: 23). Weak unions, on the other hand, have seen merit in accepting the impositions of compulsory arbitration.
The unqualified support of unions for compulsion added to the grist of those opposing arbitration at the end of the 19th century:
[President of the American Federation of Labor] as a weapon of the weak, and the same attitude dominated the British Trade Union movement (ibid: 22).
In the UK the ‘majority who opposed compulsory arbitration in the TUC was composed, in the main, of the older, stronger, and abler unions’ (Hobson 1902: 604). For weaker unions, compulsory arbitration did have an appeal. In the TUC its leading champion was Ben Tillett of the dockers, a weak union by 1899, and Richard Bell of the railway servants, an organisation that had been unable to secure recognition by the major railway companies. Opponents of arbitration were described by one delegate, as ‘the big dogs that can wag their own tails’ (Holt 1986: 23).
As Holt notes, for most proponents of compulsory arbitration it was the strong rather than the weak unions that were the principal consideration, for they were the organisations most likely to engage in serious disputes.
And if strong unions objected to the very idea of compulsory arbitration, what chances was there that it would been enforced. On this obstacle most proposals for compulsory arbitration foundered (ibid).
Where compulsory arbitration legislation was enacted in the face of strong opposing unions it was rendered unworkable. Such was the situation in Kansas in the 1920s (Gagliardo 1941), France in the 1930s (Colton 1951) and Britain in the 1970s (Weekes et al.1975).
Though Reeves argued that compulsory arbitration was necessary to prevent confrontations by strong unions and strongly organised employers (the situation that prevailed in the maritime strike), it was precisely because few strong unions existed in New Zealand that the Act was resorted to. Holt describes New Zealand unions at this time as ‘pathetically weak’. As such, they ‘were willing to tolerate a degree of state interference in their affairs that a better organised movement should not have borne’ (Holt 1986: 23–5).
The attraction of the arbitration system was that it made [such] considerations largely irrelevant to trade unions who wished to work within it. The system guaranteed unions employer recognition, provided a bargaining forum in which employers were compelled to appear, and enforced minimum wages and conditions according to the Court’s determinations. All that was required was registration under the Act, application to the Court for an award and observance of the procedures for concili-ation and arbitrconcili-ation. Any seven (later 15) workers could form a union and activate this process. . . . The great bulk of [New Zealand] unions registered under the Act to take advantage of its provisions, their officials more at home in the courtroom than on the picket line.
Australian unions, in the main, were attracted to the New Zealand Act, which described itself as ‘An Act to encourage the Formation of Industrial Unions and Associations, and to facilitate the Settlement of Industrial Disputes by Conciliation and Arbitration’. There is little doubt that many unions previously opposed to compulsory arbitration during the 1880s had become ardent advocates of that system by the turn of the century (Gollan 1960; McCarthy 1967; Rickard 1976; Portus 1979). This did not mean that there was universal endorsement. Nevertheless, Coghlan’s general conclusion holds true: strike, financial and membership losses had converted the labour movement from a ‘vague and hesitating’ stance towards arbitration to one of firm commitment (Coghlan 1918: 2097).6
If union support is a necessary condition for arbitration, there is no doubt that this condition was met in the eastern colonies. What of Western Australia?
Though unions in the West had not suffered strike losses and had been less affected by economic downturn in the 1890s, nevertheless they were also in a weak position. This general weakness stemmed from the fact that the conditions for trade union development had not existed prior to the gold rushes. Gibbney (1949) has recorded their slow growth. As late as 1880 the colony ‘did not contain a single organisation which could protect working men in their employ-ment’ (ibid: 1). The first union ‘for which there is clear information available’ was formed in 1887. Two years later delegates from Adelaide helped establish the Fremantle Lumpers’ Union and by 1890 there were six unions in existence. Unions not only had difficulty in getting established, but also in maintaining their existence. Thus the Builders’ Labourers’ Union was formed and reformed three times between 1891 and 1897. Three Trades and Labour Councils (TLCs) were brought into being—one in Perth, one in Fremantle and one in the gold fields. There was a degree of friction between the first two, and the Perth TLC collapsed on three occasions before being put on a permanent basis in 1896. The immediate effect of the gold discoveries was to hamper the development of unions for several years.
In the ferment of the gold rush, only those men who were lacking in initiative felt any urgent need to maintain their standards as workers since wealth seemed to be only a matter of time and effort (Gibbney 1968: 3).
metropolitan area with about 750 members (Gibbney 1949: 36). This represented about five per cent of workers in Perth (Merritt 1965: 24), though in the building trades it was higher—‘no more than one tradesman or labourer in five’ (Merritt 1962: 11). In the gold fields, employers estimated unionisation rates at ‘20 per cent or less’ (Segal 2002: 74).
Of the unions in existence at the turn of the century probably only four had the capacity to operate autonomously: the Lumpers’ Union; the Amalgamated Workers Association; the Amalgamated Society of Engineers; and the Boilermakers Union. Significantly, the first did not join the Fremantle TLC and the last did not register once compulsory arbitration was enacted. The general weakness of unions, and therefore their support for arbitration, is illustrated by developments following the enactment of the Industrial Conciliation and Arbitration Act. In many cases, unions complained that the registration require-ment of 15 members was too onerous. Further, they registered notwithstanding the heavy surety that they were required to pay. The number of unions, and of unionists, in Western Australia expanded significantly with the advent of arbitration, the latter increasing by 72% in the first six years following the Act (Wise 1909: 319).
LABOR AND LIBERALS
Union support for compulsory arbitration may be a necessary condition. It is not a sufficient condition. In no Australian legislature could unions control legislation. An explanation of compulsory arbitration necessitates consideration of parlia-mentary organisations. In this respect three contenders have been put forward: the newly emergent Labor parties; the new forms of liberalism that emerged in Australasia in the 1880s and 1890s; and in some cases, the coalition of these two into what has become known as ‘Lib-Lab’ fusions. For reasons that will become apparent from the following two sections of this paper, the last case is not relevant to Western Australia.
Labor
Different authors have taken different views on the significance of the Labor Party in achieving compulsory arbitration legislation. What might be termed the ‘orthodox school’ sees Labor as a critical element in such legislation. This school includes such authors as Gollan (1960), McCarthy (1967), Spence (1909), Turner (1965) and Pearce (1951). In this view, Labor was able to exercise a disproportionate influence by capitalising on its balance of power:
Fortuitously, party alignments and personality rivalries enabled the new labour parties to exercise influence disproportionately to their numbers by capitalising on their strategic position in holding the balance of power in colonial, state and commonwealth [sic] parliaments (McCarthy 1967: 74).
We are for sale, and will get the auctioneer in and take care that he is the right man. . . . I want to show the Government what they have to do to secure our support (Turner 1965: 63).
Though a good case can be made for Labor’s capacity to influence arbitration legislation while holding the balance of power, and subsequently to introduce and improve upon such legislation when in Office, the orthodox view is not altogether satisfactory. It presupposes that Labor did hold the balance of power in all states. In some cases this did not exist for some time after the introduction of industrial legislation (South Australia, Tasmania, Victoria, Western Australia). In the case of Queensland, Labor’s capacity to become the outright Opposition from the start reduced its capacity to influence legislation.
Commenting on the ‘orthodox’ view Macintyre notes:
Purely on the Australian evidence, this explanation is open to challenge. It exagger-ates both the commitment to arbitration within the labour movement and the influence that the movement wielded. These objections apply with particular force in South Australia and Victoria, where Labor remained under the wing of liberals until after the turn of the century; in Western Australia, where arbitration was enacted in 1900 before Labor made its parliamentary debut; and in Tasmania, where Labor still remained a negligible force. In NSW, Queensland and the Commonwealth, the minimum requirements of the hypothesis—an independent Labor Party with signifi-cant political strength—were at least in evidence, but even there its validity is still doubtful. Labor held the balance of power in New South Wales from 1891 but had to wait until 1901 for a non-Labor administration to introduce compulsory arbitration. In Queensland the wait was even more protracted and the best that Labor could achieve until it won office itself in 1915 was wages boards. And in the Commonwealth parliament the two non-Labor parties called Labor’s bluff, so that it was a coalition drawn from both that framed the measure finally adopted in 1904 (Macintyre 1987: 155).
One who sees little role for Labor in initiating compulsory arbitration is Fitzpatrick. He claims that:
. . . the industrial arbitration systems which were soon established in all parts of Australia did not derive from the Labor Party, though all . . . took some of their character from Labor pressure on the Government which introduced them.
Fitzpatrick adds:
. . . the pioneers of arbitration were not Labor Parliamentarians, or Labor men out-side Parliament; [they] were such Liberals as William Pember Reeves, C.G. Kingston, and Alexander Peacock (factory and wages boards legislation, Victoria) (Fitzpatrick 1968: 151).
forces that initiated the measure [arbitration] along lines and according to a timetable that they controlled’ (Macintyre 1987: 155). In this view, the advent of Labor, by creating politic opponents, ‘weakened the liberal rump that was forced to take up an increasingly unsympathetic stance’. He adds: ‘insofar as arbitration was meant to mediate class antagonisms in industry, it was more likely to win acceptance where class antagonism had not become the organising principle of political life’ (ibid).
In Western Australia, Labor played a marginal role in the initiation and passage of the Industrial Conciliation and Arbitration Act 1900. Indeed, the party, as currently understood, did not come into being until after the passage of this legislation. Gibbney (1975) has given a succinct development of the Labor Party in the period 1880 to 1920. After several failed attempts at political organising, in 1896 the Political Labor Party (PLP) was formed and contested the elections of the following year. One member, Charles Oldham, was successful in being elected. In 1898 the party appointed its first fulltime officer and in the following year the combined Trades Union and Labor Congress (TULC) determined a three-pronged parliamentary platform: payment of members of parliament; redistribution of seats according to population; compulsory arbitration ‘on the New Zealand lines’. The first objective was soon realised. Payment of members of parliament was accepted in principle in 1899 and came into effect in 1900. This removed the most serious obstacle to the development of the PLP. This was further augmented by the subsequent introduction of universal suffrage. In 1899, the second Congress proposed contesting 22 electorates, with the decision in another 11 electorates to be determined by local party members. In the final outcome six members were elected and took their seats in May 1901, some months after the passage of the Act.
counterpart where, in the view of Spence (1909: 199) ‘the rich minority were able to resist the masses in every step taken in legislation. As employers they used the boycott at every opportunity.’
It can be concluded that the Industrial Conciliation and Arbitration Actwas not initiated by Labor. Further, it can also be concluded that Labor had minimal involvement in determining the scope and outcome of the Act. The Bill was processed at a time when ‘labour or working class representation in Parliament was meagre, if not negligible’ (Crowley 1954: 15).
New liberalism
Much of the social legislation in the decade before and after federation has been attributed to ‘new’ liberalism. The records show that the initiation and carriage of arbitration Bills was undertaken by persons with liberalist creeds. These included Pember Reeves in New Zealand, Kingston in South Australia; Wise in New South Wales; and Kingston, Deakin, Higgins, Isaacs, O’Connor and others in the Commonwealth. Thus, Richardson (1987: 169) writes, ‘Compulsion resulted from the conjunction of a particular stage of union development, a heightened predisposition towards what might be called ‘liberal rationality’ or a belief in the possibility of resolving clashes of interest by negotiation.’ He adds, ‘There is much to commend this general explanation for the adoption of compulsory arbitration throughout Australasia. It is an historical framework which Jim Holt’s Compulsory arbitration in New Zealand
endorses.’
The emergence of liberalism was at odds with the orthodoxy of the day that held that the state should not interfere with economic and social matters (Simpson 1987: 145). Economic depression, the great strikes of the 1890s, and the reports of the Royal Commissions on sweating were factors contributing to the growth of liberalism. As Simpson notes:
Some members of the political class, i.e. those who constituted the parliamentary recruiting ground, had by the 1880s become thoroughly perturbed by the social consequences of economic downturn. Expressions of concern were not confined to those who were later to be at the centre of what became the Liberal governments. But one on those who did, Robert Stout, will serve as an exemplar of that concern. Stout began as an orthodox Benthamite liberal. He though the state should not inter-fere under any circumstances in social economic matters. Between 1875 and 1890 his views underwent a profound change. . . . What changed the minds of Stout and many middle-class people like him was the evidence before their eyes of the wide-spread distress caused by leaving things to take care of themselves. They honestly believed that when they came to a new land they had left behind them such social cankers as industrial class conflict, economic exploitation, and so forth. The revel-ations of the Sweating Commission which provided only the most dramatic evidence that their presumption was wrong was profoundly shocking to many hitherto complacent middle-class colonists (ibid: 145).
New Zealand (Holt 1986: 15). The ‘intellectual provenance’ of such views, writes Macintyre,
lay abroad in the so-called ‘new liberalism’ that shifted the relationship between the state and the citizen. Since the earlier liberalism that enshrined freedom from state interference had failed manifestly to solve problems of poverty and inequality that threatened to poison public life, the new generation of liberals asserted the need for collectivist measures that would enhance the capacity of citizens (Macintyre 1987: 154).
If Liberalism is interpreted merely as a readiness to involve the state in economic affairs, then the Western Australian parliament of the time met this description. This is evident from the Attorney General’s speech when introducing the Industrial Conciliation and Arbitration Bill: ‘The State after all is the parent, and labour and capital are her children, and it is her duty . . . to preserve the domestic peace’ (WAPD 1900: 461).
State interference in Western Australia, however, was not a manifestation of a desire for social change but rather a matter of pragmatic necessity. The state had been called upon to provide the infrastructure of commerce, industry and social well-being, and in many cases had to engage in undertakings when private enterprise had failed. The arbitration Act was initiated by Forrest. He has been called many things—liberal is not one of them.8Far from being a radical or liberal, he was a shrewd pragmatic politician with not a little liking for the British way of things. Segal notes that he ‘responded to the structural transformation of the colony with social measures only, in the main, under duress and for short-term political advantage’ (Segal 2002: 81). Segal quotes Vosper’s view that Forrest led ‘only in the...sense that a wheelbarrow leads its driver or a mule a plough . . . under harness, whip and spur’ (ibid). Deakin aptly summed up Forrest’s conservatism in his book on federation: ‘Sir John Forrest was to the fore as leader of the stalwart Conservatives in resisting with undaunted courage and inex-haustible persistency common-sense objections to every innovation’ (Deakin 1944: 88). The social gains achieved during the 1890s, in the view of Gibbney, resulted not from Forrest’s liberalism, but rather his ‘intellectually pragmatic government’. Forrest, he notes, ‘was always prepared to concede moderate demands which had some show of political backing’ (Gibbney 1975: 346). Forrest’s pragmatism, in which he sought public support while not alienating tradition interests, reduced the effectiveness of much legislation. He ‘frequently diluted reformist legislation to pacify his old colonial supporters and other vested interests, often to such an extent that his measures proved to be ‘simulacra’ (phantoms) and of only limited benefit to their proponents (Segal 2002: 82 quoting WAPD 1900: 81). Is it contended that the Industrial Conciliation and Arbitration Act was such a simulacrum.
James was first elected in 1894 with TLC ‘endorsement’ and frequently attended meetings of the TLC’s parliamentary committee (Gibbney 1975: 346). On behalf of the TLC he unsuccessfully sought the introduction of a compulsory arbitration Bill, probably in 1896 (Pearce 1951: 33). In the same year Diamond (who had been President of the Lumpers’ Union) was elected with TLC ‘endorse-ment’ and Illingworth was elected for the gold fields seat of Nanine. In 1897 two other liberals were elected: Vosper and Ewing. Both had sought, but only the latter obtained, TLC endorsement (ibid: 347). Despite his lack of (Kalgoorlie) TLC endorsement, Vosper remained sympathetic to unions. He also sought the introduction of an arbitration Bill. In October 1897 he asked the Premier whether he intended ‘to introduce Bills providing for the recognition of trade unions and for the settling of industrial disputes by conciliation and arbitration’. Forrest replied in the negative (WAPD 1987: 91). Vosper’s coupling of arbitration with union recognition is significant, and is developed in a subsequent section of the paper.
Thus, in 1899 and 1900 when the Arbitration Bill was debated there was only one ‘Labor’ member (Oldham) and about five ‘liberals’ (James, Diamond, Illingworth, Vosper and Ewing) in the Lower House.9All were in Opposition, with Illingworth being elected Leader of the Opposition in 1900. Vosper, the most articulate of them, died prematurely in 1901 at the age of 31. Between them, these members were not strong enough to change the course of Western Australian history.
WESTERNAUSTRALIAN SPECIAL CIRCUMSTANCES
Previous sections have explored reasons given for the establishment of compulsory arbitration in the eastern states and New Zealand. Though some of these factors have some relevance to the Westralian experience, they would appear to be inadequate explanations for the introduction of compulsory arbitration in that state. What then were the factors giving rise to compulsory arbitration legislation in Western Australia? It is contended that taken together, three elements go a long way in explaining the Westralian paradox: the political pragmatism and needs of the Premier, Sir John Forrest; the need to bring Western Australia into line with other parts of the British Empire and to remove collective industrial action from the laws of conspiracy; and employers’ capacity to minimise the reach of compulsory arbitration.
Political pragmatism
gold fields, and agricultural pastoral versus financial industrial capital’ (Treuren 1999: 95).
In large measure the political changes of the 1890s was a reflection of the economic and social changes brought about as the result of the gold discoveries in the Coolgardie–Kalgoorlie region. In 1892 Pearce, a new arrival and sub-sequently a longstanding senator for the state, wrote that at the time ‘Perth was such a small place that whenever a steamer arrived from anywhere we could pick out the faces of the new arrivals in the streets’ (Pearce 1951: 17). Indeed, at the time the population of Perth was less than 8500, making it not only the smallest capital city in Australia, but also one with fewer inhabitants than 17 of the provincial cities. These included Ipswich, Bathurst, Bendigo, Rockhampton, Gympie and Maryborough (Crowley 1980: 335). The population of the entire state at the time of self government (1890) was only 46 000 (Registrar General’s Office 1902: 151). A decade later, as the result of the discovery of gold, the state’s population had nearly quadrupled to just under 180 000 and Perth’s population was just over 30 000. In 1895 alone, nearly 30 000 new arrivals, primarily from the eastern states, came to Western Australia (ibid). This was a significant challenge for the existing order.
Spence (1909: 351) notes that Western Australia was a Crown colony until 1890.
It was governed by a small Legislative Council working under the Colonial Office in London. Practically, the colony was ruled by what became known as the ‘six families’. These were the families of Messrs Forrest (3), Burt, Stone and Hamersley. These six and their relatives by marriage really ran the affairs of Western Australia.
Crowley (1980: 143) writes in similar vein when he notes that colony was ‘in the hands of The Six Hungry Families’ and their pocket boroughs. His list of families differs in some measure to those of Spence—Burt, Leake, Lefroy, Lee Steere, Shenton and Stone—but he adds ‘though other lists were frequently compiled’.10Initially, self-government only marginally reduced the role of the pioneering families, all of whom were represented in Parliament. Thus John Forrest was Premier; two of his brothers (Alexander and David) were members of the Legislative Assembly and the former also Lord Mayor of Perth; Hamersley was Forrest’s brother-in-law and a one time member of the Legislative Council; Burt was Attorney General for many years; Stone and Leake were members of the Legislative Assembly, with the latter replacing Forrest as Premier in 1901; Lefroy, another of Forrest’s brothers-in-law, was a member of the six-person Cabinet; Lee Steere was Speaker in the Legislative Assembly and Shenton President of the Legislative Council.
fields centre with a population greater than that of Perth and Fremantle were the demands for greater parliamentary representation; the campaign for ‘fairer’ taxing; and the ‘secession for federation’ strategy.11In short, there was greater political ferment than had previously been experienced in the colony.
By his own estimation, Forrest endured some 20 want-of-confidence motions during his term as Premier. Crowley identifies seven major no-confidence votes during the decade (Crowley 2000: 292). For the most part, Forrest had little difficulty defeating these motions. As described by Byers (1994), Crowley (1980 and 2000), Bastin and Stoodley (1967), Merritt (1965), Treuren (1999) and others, Forrest’s general approach to such challenges was one of strategically timed concessions. Treuren (1999: 94) writes:
This strategy involved making smaller ameliorative concessions than would have been necessary had the government been confronted by the increasingly strident movements inspired by the various liberal, democratic, labour currents. By under-mining acrimonious disputes between groups in the community, the government could represent itself as the ‘fulfiller of public opinion’ with attendant political benefits. Forrest could represent himself as a liberal moderniser of colonial society, without needlessly antagonising his conservative allies.
It was in this context that Treuren sees the passage of the Industrial Arbitration Actas:
. . . the pragmatic attempt by Forrest to maintain political power, set against a back-drop of growing industrial, economic and political uncertainty that threatened to draw the colony into the troubles experienced within the eastern colonies almost a decade earlier (ibid: 90).
Though Treuren has enriched this explanation by taking greater account of the industrial, economic and social factors at play, his account is echoed by a number of other writers including Hughes (CPD, XXII: 5216), Dufty (1986: 553–4), Merritt (1965: 66), McIntyre (1972: 118), Pearce (1951: 39–40), Reid (1973: 4–5), Spence (1909: 354–5), and Somerville (n.d: 434). Pearce’s account is particularly relevant, because he was personally involved. He writes that though losing ground, ‘by clever political manoeuvring Sir John managed to maintain his position and thus ensured his inclusion in the first Federal Government’. Pearce notes that opposition to Forrest had increased, and that a ‘cave had been formed among his supporters and members of the cave were said to be coquetting with the Opposition’. He continues:
At this interesting juncture the second Western Australia Labor Conference was held. The unions, particularly those in the gold fields, were facing a critical position. They were weak financially, and there were rumours that the mining companies were contemplating a reduction of wages. The conference decided to send a deputation to the Premier to again urge the necessity for an Arbitration Act. As chairman of the conference I was to lead the deputation.
left. Sir John asked us to remain. He then told us he would introduce an Arbitration Bill provided we could induce Illingworth to hold over his motion until the Bill was passed. Delighted and astonished we gladly gave our assurance. We straightaway waited on Mr Illingworth and other gold fields representatives, and under con-siderable pressure and rather unwillingly they agreed to defer action. Sir John carried out his promise and introduced and passed the first Arbitration Act in Australia. Sir John retained the premiership until the first Federal Government was formed and he was included in it. So all parties were completely satisfied (Pearce 1951: 39).
Pearce’s recollection is not completely accurate. Illingworth did not accede to the delegation’s request and did move a want-of-confidence motion. Forrest survived by six votes, ‘a safe though somewhat close vote compared with the margin on previous occasions’ (Crowley 2000: 292). The closeness of the voting suggests that if three other members had voted with the Opposition, Forrest may have lost office. Thus the TLC influence on Oldham, James and other TLC ‘endorsed’ candidates may have been crucial to the outcome. Gold fields representatives may have been further influenced by the Trade Union and Labour Congress resolution following the meeting with Forrest:
That in the opinion of this Congress, any MP who, by voting to close this Session, or otherwise tries to block the passage, or who fails to support when introduced, the Conciliation and Arbitration Act, will be looked upon as an enemy of the Labor interests’ (Dufty 1986: 553).
The members for Fremantle and North Fremantle (Higham and Doherty respec-tively), both Opposition members in working class seats, voted for Forrest, despite the latter criticising Forrest’s policy during the debate (ibid. and Crowley 2000: 292).
Thus Forrest faced a hostile Parliament when it resumed in August 1900. De Garis (1977: 327) notes that the federation issue had strengthened the Opposition ‘by driving a number of independents into taking up a more committed stance’. He also notes that a number of ministerialists ‘had indicated that Forrest could no longer rely on their support. Indeed, eight ministerialists moved to the cross benches and held the balance of power’. In this context, Vosper saw the Arbitration Bill as little more than ‘an election dodge’ during the by-election for the seat of West Perth and contended that there would ‘be a diminution in the zeal which the Government is showing to this measure’ once the election was over (WAPD 1900: 417). Forrest had a longer term goal. The Arbitration Bill was passed just three weeks before Forrest was invited to be a Minister in the first Federal Parliament. He had survived on the basis of strategic concessions and by his ‘calculatingly sympathetic’ response to labour (Merrit 1965: 66).
Though most accounts of the development of compulsory arbitration in Western Australia implicitly or explicitly endorse Pearce’s view of a ‘trade off’ between Forrest and the TULC, in a recent reassessment Naomi Segal disputes such an occurrence, or at least its significance (Segal 2002). Segal claims that there is evidence that Forrest consulted with unions and the mining industry on a draft Bill and assured them the Bill would be (re)introduced. She adds:
Furthermore, it appears that Forrest resolved the troubles over the censure motion independently of unionists. Parliamentarians, whose votes unionists were alleged to have swayed, had declared their opposition to bringing down the government in a no-confidence motion as early as May 1900, well before unionists and Forrest allegedly struck a deal (Segal 2002:67).
Segal sees the Railways dispute of 1900 and the need to safeguard WA’s credit rating for the gold industry as Forrest’s motivations in pursuing the legislation. In this view, the gold mining industry, mindful of its dependence upon rail, compromised in supporting the Bill.
We have some difficulties with this interpretation. The fact that Forrest consulted with unions and the mining industry does not exclude the normal dealings of politics, including trade-offs. The union movement’s tacit assent, if only because registration was on a voluntary basis, was important. It is not surprising that the mining industry was consulted. It had lobbied hard to prevent the 1899 Bill progressing and was well represented in the Legislative Council. This consulting did not prevent the industry seeking significant amendments in both chambers of Parliament.
The inclusion of railways within the scope of the Act supports Segal’s contention that this was a major consideration. A number of caveats should, however, be applied. Discussion over the inclusion of railways in the arbitration Acts was a feature of all Parliamentary debates concerning the introduction of compulsory arbitration, including in those states where no railway disputes were to the fore. Reeves (New Zealand) encountered trouble on this score, as did Wise (New South Wales) and Kingston (Commonwealth). The last named resigned ‘from the Ministry rather than accept the exclusion of railway servants of the State’ (Turner 1911: 70). The issue in question was an important one: Would or could governments allow their budgets to be affected by decisions of the Arbitration Courts? One line of reasoning held that sovereign governments should not brook such interference. Another line argued that the State could delegate such authority. At the less theoretical level, Western Australia employers argued that ‘what was good for the goose was good for the gander’. If they had to abide by arbitrated wages, so too should government industrial undertakings (WAPD 1900: 629).
If Forrest and his ministry were keen to include railways within the provisions of the Act there would have been little need for prolonged debates (this issue took up some two-thirds of the Hansard records). The Minister whose portfolio included railways was firmly opposed to the inclusion and resigned in protest. When the Act was passed not all railway employees were included. A major rail-way strike ensued in 1907, a strike not amenable to settlement by the Arbitration Court.
Segal’s contention that Forrest’s major concern was to ensure WA’s credit rating because of the need for large investment income for gold mining is also, in our view, problematic, particularly as she admits that ‘mining employers had much to lose by submitting to a compulsory arbitration regime’. Segal also claims that rather than supporting arbitration, potential investors in London lobbied hard to have the Bill removed. She notes, however, that the Chamber of Mines, with its better knowledge of local conditions, ‘was mindful of the utility, and alert to the opportunity, of passing weak arbitration legislation under Forrest, even as it remained opposed to the legislation’. In short, if Forrest’s intent was to safe-guard the credit-worthiness of the gold mining industry, he was unsuccessful. Foreign investors railed against the proposed legislation and the local industry ensured that the final legislation was not a deterrent to industrial action other than for weak unions prepared to accept the constraints and costs associated with registration.
Legalising collective action
Political pragmatism may explain the re-introduction of the Bill in 1900. It does not, however, explain why the Bill was introduced in the first place in 1899, nor why it was discharged before the end of that year’s parliamentary session rather than being allowed to lapse.
1897: 91). On each occasion Forrest opposed the measure. Vanden Driesen suggests that the TLC had ‘repeatedly suggested the adoption of compulsory arbitration’ and that Forrest ‘had categorically refused to entertain the idea’ (Vanden Driesen 1981: 47). In May 1899 another deputation from the Perth TULC met with Forrest to persuade him to introduce a compulsory arbitration bill. He stalled and ‘created all sorts of imaginary difficulties’ (Dufty 1990: 6). He had told an earlier meeting that arbitration was ‘an economically unsound principle’ (Sommerville n.d: 433). ‘Later in 1899, and for unspecified reasons, he changed his mind and wrote to the TULC saying that a Bill would be introduced as soon as possible’ (Dufty 1990: 6). The Bill was introduced in October 1899 but discharged in December at the request of employers who indicated that they needed more time to consider the proposal (WAPD 1899: 1323).
Dufty (1986, 1990) and Vanden Driesen (1981) are among those who see this Bill as the result of the Lumpers’ Strike of 1899. This five-week strike was the largest conflict seen in Western Australia at that time. Further, Crowley adduces evidence of Forrest writing to Kingston seeking advice on an arbitration Bill shortly after the strike (Crowley 2000: 253).12
That said, the strike, on its own, does not appear to have been the contending factor. Strikes were uncommon, and the Lumpers’ strike was an exception. There were only two short references to the strike in the parliamentary debates of 1899; one by L Doherty whose seat of North Fremantle was in the epicentre of the strike (WAPD 1899: 1172). This dispute was not mentioned during 1900 debates. Any mention of strikes during that year centred on the more recent railways dispute, a situation no doubt extenuated by the long debate on whether or not railways employees should be included under the Act.13Thus parliament followed a common course of considering disputes important at the time of their occurrence but not otherwise. Indeed, a number of members expressed the view that Western Australia did not have a strike problem. The Opposition Leader (Illingworth), in his response to the second reading, based his reply almost entirely on Reeves’ second reading speech when introducing the New Zealand Bill. Any references to strikes centred on those in Britain (WAPD 1900: 476). Mr George MLA opined that there had ‘been no strikes, at any rate in this colony, which could be termed “terrible”’ (ibid: 480). The Colonial Secretary was ‘glad to say . . . that we have not had a great deal of trouble’ (ibid: 887). Similar comments were made by other speakers. If the Lumpers’ strike was the impetus for legislation, one would need to explain Forrest’s approach to the TULC meeting three months after the strike and the further five-month delay before the introduction of the Bill. One would also have to explain the lack of urgency in the passage of the Bill. It was originally introduced in October 1899, withdrawn in December of that year and finally passed on 5 December 1900, the last day of the last colonial parliament.
concerning the details of the Bill, ‘there would be delays in debating the Bill, probably leading to its demise’. ‘Nevertheless’, Segal adds:
there was probably electoral advantage in introducing the Bill, if only to counter the arguments of pro-Federation labour supporters. . . . If the Arbitration Bill failed because of the intervention by non-government interests, its introduction would still remain a feather in Forrest’s cap, and it would be so even were the Opposition to claim, as it did later, that the Bill had been introduced only [to hold it up] and gull the country (Segal 2002: 83).
Political opportunism may have been a reason. However, Forrest’s communi-cations with Kingston suggests that he was thinking about arbitration, even if not totally committed to it at that stage. If so, the Lumpers’ dispute may have been a factor, but not in the way suggested by Dufty and others. The strike was influential not because it demonstrated the need for machinery for strike pre-vention or amelioration, but rather because it demonstrated the inadequacy of the law in handling collective negotiations.
Unlike Britain, which had legalised unions in 1871, and the other Australian colonies which had acted similarly during the 1880s, Western Australia had never repealed the Anti-Combination Act. This Act made unions illegal assemblies. The law, through the Master and Servants Act, continued to regard employment in terms of individual contractual relations. In the Lumpers’ strike, the first action by employers was to seek breech of contract remedies against employees under the Act. This had to be dropped in the face of legal difficulties. In the same year, four striking miners were jailed under the Act (Crowley 1954: 30.)
As the colony’s economy diversified from pastoralism and agriculture, so too did employment relations change. The main thrust of the existing legislation was to ensure that ‘servants’ did not abscond from their masters, something of importance to pastoralists. This was an increasingly irrelevant legal framework as factories and mines increased in number, as unions developed, and as employ-ment conditions came to be determined on a collective basis. As the population increase drove up demand, by the end of the decade nearly 12 500 were employed in industrial establishments (Appleyard 1981: 226). In addition, about 17 000 waged workers were employed in the mining industry (Segal 2002: 73). Accompanying these developments was an increase in industrial disputation, something of a rarity before 1890. In this context, the master and servant legislation was increasingly outdated. As Crowley notes:
An important component of collective bargaining was organisations of employees. As the Attorney General noted in his second reading speech, these operated without any legal protection:
Strange as it may appear, to the present day in this colony there is no legal power authorizing the combination of workers...there is no legal authority to justify the combination of working men for the purpose of looking after their own interests or for the purpose of making terms with their employers. . . . Where you have to deal with bodies of persons, that is to say an aggregation of men formed for mutual protection, there is no law whatever that gives them a status, and therefore they are not known to our law. . . . The time has come when [we] must fall into line . . . in giving workers such recognition as will enable them not only protect their own interests, but shall place them, acting within their legal rights, in such a position that it shall be competent for them to make bargains in a collective capacity with combinations of employers (WAPD 1900: 461–6).
The Leader of the Opposition agreed with these sentiments. He saw ‘the absolute necessity for the recognition of unions’ and welcomed ‘for the first time in the colony recognition of trade unions by law’ (ibid: 74). These comments echoed those of Mr Ewing MLA, who in a legal opinion wrote, ‘To be a member of a trade union is to be a member of an unlawful organisation and if you resolve to call out your men from any trade, you at once place yourself in the hands of the law’ (West Australian, 27/10/1900). There is evidence that Forrest had been seeking ways of legalising unions since Vosper had put the question in Parliament in 1897 (Macintyre 1972: 139). A Bill to this effect was mentioned in the Governor’s speech in 1898 but not acted upon and in 1900 Ewing brought in a private member’s Bill. This was withdrawn when the Industrial Arbitration Act
was re-introduced.
The rapid economic development during the 1890s meant that the system which may have suited a largely pastoral and agrarian economy was no longer relevant. The discovery of long-lasting gold fields had resulted not only in the great importation of people, but also of industry and ideas. Thus, much of the ‘liberalism’ that Forrest sought to placate had been ‘imported’. Of the liberals mentioned earlier only one (James) was local born. In addition unionism and strikes were largely imports. The major unions—the AMA, ASE, ASCJ, Locomotive and Enginemen, and Typographers—were either branches of Australian or English unions, or had been formed by English migrants brought specially for particular trades while the Lumpers’ union had been organised by a trade union delegation from Adelaide (Gibbney 1949: 8–11). Both the Trades and Labor Council and the Political Labor Party were established and run by newly arrived immigrants (McIntyre 1972). Not only were unions ‘imports’, but so too was the industrial conflict accompanying them. The Lumpers’ disputes, and subsequent disputes at the Albany waterfront, were the direct result of shipping employers seeking to emulate their successes on the eastern seaboard in obtaining freedom of contract.
employers and a floor beneath employment standards. Forrest was prepared to give unions recognition, but was also seeking a means by which the colonial labour laws could be catapulted into the new era of collective negotiations. Though other legislation could have assisted in the achievement of this objec-tive, compulsory arbitration provided other attributes of benefit to the developing economy. The provisions for union registration had the capacity to remove the major cause of the Lumpers’ Strike, the refusal of employers to recognise and deal with unions. At the same time, registration imposed controls over unions and their activities. Employers were not slow to capitalise on these controls, and to convert the Industrial Arbitration Billinto an Act that attempted to chloroform unions.
A union with little power for mischief
As noted earlier, one of the paradoxes of the Westralian case is why the employer-dominated legislature allowed the Bill to become law—something that did not happen in Victoria and Tasmania, and something that was delayed for two decades in Queensland and South Australia. Three factors may explain this paradox. First, many members agreed with Forrest about the need to update labour legislation to take account of collective negotiations. A second element may have been the resentment of locals at the deliberate importation of conflict by shipowners in the Lumpers’ dispute. There was strong public sympathy for the union in this strike (Vanden Driesen 1981: 34). The arbitration legislation would remove such conflict by forcing employer recognition of registered unions. The third element has a Fitzpatrick ring to it. Employers did not initiate the legislation and failed in their efforts to have Forrest remove the Bill. They could have used their numbers, particularly in the Legislative Council, to thwart the Bill. Instead, they used the Act as an instrument for shaping the scope and conduct of unions. Thus, unlike their counterparts in other states that saw union recognition as a diminution of the spoils of victory (CCEA 1905: 112), Westralian employers, who had not been parties to the paralysing strikes of the 1890s, saw arbitration as a method of containing the emerging union movement. They quickly adapted to Pember Reeves’ view that ‘a union which may not strike…is a union left with little power for mischief, however much it may do legally and peacefully for its members and their fellow workmen by organising, probing grievances, negotiating, arbitrating, and watching the observance of awards’ (Reeves 1902: 112–13). Further, through their legislative action, employers severely circumscribed the role of the Arbitration Court, and thus, of compulsory arbitration.
Two major employer groups opposed the Bill. The Perth Chamber of Commerce opposed the Bill on the grounds that arbitration would foster disputes on trifling matters and result in expensive litigation (Crowley n.d: 56). Amend-ments to the Bill to require a majority vote before a union could refer matters to the Court and which imposed financial costs on any such referrals reduced this complaint.
the fact that in 1900 gold constituted 88 per cent of the colony’s total export income (Segal 2002: 65). This Chamber had the capacity to prevent the legis-lation. Segal notes that in September 1900 the Chamber considered that it had the support of 16, if not 18, of the 30 members of the Legislative Council (ibid, p. 63). When Forrest remained adamant to the need for legislation, rather than force the issue, the Chamber changed tack and sought ‘an emasculated version of compulsory arbitration legislation that would cause minimal upset to capital at the same time as it could avert industrial conflict’ (ibid: 64). Thus, in the view of Segal, the Chamber of Mines was ‘mindful of the utility, and alert to the opportunity of passing weak arbitration under Forrest, even if it remained opposed to the legislation. It therefore collaborated with the state’s initiative in shaping the legislation and having it passed’ (ibid).
As noted, the Bill was originally introduced in 1899. Shortly afterwards a number of parliamentarians received a communiqué from the Chamber request-ing that the Bill be held over to the next session of parliament. Morgans and Wilson (both with mining connections) sought delays in the Legislative Assembly and the Bill had to be discharged (WAPD 1899: 1332). During the break between parliamentary sessions the inevitable deputation met with Forrest seeking the removal of the Bill:
Forrest stood firm. His response . . . was to insist on the necessity of the Bill by pointing to the strength of organizations of both of labour and capital, and to the harm that could come from their clashes. . . . He reminded the deputation that the employers had lost the battle for public sympathy in the lumpers’ dispute. . . . Finally, he implied that the employers’ comments would assist his legal advisers to change the Bill. In short, Forrest conveyed the message that the legislation was inevitable, while reassuring employers that he could accommodate their concerns about it (Segal 2002: 84).
English capital to protect or to further develop the mining industry’ (WAPD 1900: A32).
The Bill was finally read a third time after nearly 12 weeks of debate and moved into the Legislative Council were it received rough treatment, particularly from Haynes and Whitcombe, both with mining connections. Haynes reiterated the potential threat by capital. He noted that the Chamber of Mines had sent correspondence to all members of both Houses asking for certain amendments in the Bill. ‘I would like to point out,’ he added, ‘that the gold industry is one of the chief, if not the chief, industry of this colony at the present time and it is on the gold fields I fear the first battle will be fought; and we ought be very careful to see no just cause of complaint is given to employers of labour on the gold fields because such would be the effect of practically excluding capital from this colony’ (ibid: 893).
Haynes was appointed to chair a Select Committee composed predominantly by opponents of the Bill. At this stage the London Chamber of Mines provided the Western Australian Agent General in London (Wittenoom) with a petition signed by 77 mining and financing companies. A 28-person deputation met with the Wittenoom and claimed the Bill to be unnecessary. Again they threatened a strike of capital. Wittenoom explained that the Government had watered down the Bill as much as possible, ‘but more would be done in the Upper House’ (Segal, 2002: 95).
The Select Committee’s recommendations largely mirrored the views of the Chamber of Mines. Though the Legislative Assembly did not accept all of the amendments proposed, the Bill was sufficiently altered to satisfy the wishes of employers and to make the legislation unworkable.
