THE LEGAL BACKGROUND TO INDUSTRIAL CONFLICT IN AUSTRALIA
| Author | Edward I. Sykes |
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb00422.x |
| Date | 01 January 1957 |
| Published date | 01 January 1957 |
THELEGALBACKGROUNDTO
INDUSTRIAL CONFLICT IN AUSTRALIA
MOST
analyses
of
Australian industrial law and relations have
tended to be examinations either
of
the so-called compulsory
arbitration system from sociological
or
economic viewpoints
or
of
the framework
of
the Commonwealth Court of Conciliation and
Arbitration and the constitutional limitations under which
it
functions. Little attention has
on
the whole been focused
on
the question to what extent the whole body of statutory and
common law does forbid the actual resort to the weapons of
economic warfare by employer
or
employee groups.'
In
the longer
treatments of the Australian arbitration system, the aspect of
sanctions has been generally treated as a rather unfortunate by-
product of the court arbitration concept. Nevertheless from the
very nature of the assumptions of a theory of
cmpdsory
arbitra-
tion, such aspect cannot but be of the deepest juridical and social
significance. This article will attempt to explore such field.
It
it stressed that what is involved is a study not only of the obvious
explicit sanctions, mainly of a quasi-criminal nature, to be found
in the arbitration statutes themselves, but of the relation between
them and the more traditional patterns
of
common law liability
in tort. This last interesting question is one that arises very little
in England but is posed not only in the Australian situation but
also in New Zealand and to some extent in Canada.
First,
it
is necessary to look briefly at the extent to which
the English legislation culminating in the Trades Disputes Act
of
1906
finds an echo in Australia.
The attitude
of
the law towards trade
union
combination and
employee activities in the Australian colonies at about the middle
of the last century roughly corresponded to that in England at
the same time. The colonies inherited a system under which the
Combination Laws
no
longer had application, though the repressive
6
Geo.
4,
c.
129,
was in force in at least some of them. However,
the legal status
of
trade unions remained most precarious and the
attitude of the law towards strikes and associated activities was
capricious and uncertain with a development towards increasing
harshness.2
It
is
well known that emancipation from the rigours
1
An
article by
J.
A.
Keely in
(1951)
5
Re8
Judicatae
38
(Victoria) deals with
the right
to
strike under the Federal law but
is
for the most part confined
to
a discussion of the extent
to
which the Federal
Court
will use the weapon
of deregistration of the union or the tactic
of
refusing to deal with the union
in the case of resort to the strike method.
a
For the anomalies
of
the situation see Citrine,
Trade
Union
Lato,
pp.
7-8.
The doctrine of criminal conspiracy was developed only gradually and the rules
of tort liability did not come till later.
25
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