ETHICAL EMPLOYMENT PRACTICES AND THE LAW 91Furthermore, both the criminal law and the law of torts were deployed
to outlaw various forms of industrial action, and to fix unions with liability
for any damage they might inflict on an employer in situations where they
took industrial action to protect or to promote the industrial interests of their
members—for example inRv.Bunn(1872) 12 Cox CC 316 Brett J suggested
that the very fact of combination in the course of industrial action could
constitute the crime of conspiracy. Tort liability in respect of industrial action
was established in a series of cases starting withBowenv.Hall(1881) 6 QBD
333 and culminating inQuinnv.Leathem[1901] AC 495 andTaffVale Railway
Companyv.Amalgamated Society of Railway Servants[1901] AC 426. These
principles were adopted as part of the law of Australia in cases such asMartell
v.Victorian Coal Miners Association(1903) 9 ALR 231;Slatteryv.Keirs(1903)
20 WN (NSW) 45;Brisbane Shipwrights’ Provident Unionv.Heggie(1906)
3 CLR 686;Southanv.Grounds(1916) 16 SR (NSW) 274;Coffeyv.Geraldton
Lumpers’ Union(1928) 31 WALR 33 (Creighton, Ford, and Mitchell 1993:
chs. 34–5; Creighton and Stewart 2005: 561–72; Pittard and Naughton 2003:
ch. 17; Sykes 1982: ch. 8).
From the 1820s onwards attempts at blanket suppression of trade union
activity were replaced by a form of reluctant tolerance, both in the UK and in
Australia. This tolerance found expression in measures such as Combination
of Workmen Act 1824 (UK); Combination Laws Repeal Amendment Act 1825
(UK); Molestation of Workmen Act 1859 (UK); Trade Union Act 1871 (UK);
Conspiracy and Protection of Property Act 1875 (UK), and Trade Disputes Act
1906 (UK) (Creighton and Stewart 2005: 38–45). Some, but not all, of these
measures were adopted in the various Australian jurisdictions—although, as
indicated the master and servant legislation was still deployed in Australia
many years after it had been repealed in the UK.
The increasing tolerance of trade union activity in the Australian context
was reflected in the fact that unions became firmly established from the
1850s onwards, especially on the Eastern seaboard. Furthermore, these unions
enjoyed a significant measure of success in terms of protecting and promoting
the interests of their members. This included the achievement of the 8-hour
day following a strike by Melbourne stonemasons in April 1856—one of the
first groups of workers in the world to achieve this objective (Clark 1978:
93–4). Then disaster struck the unions in the form of a series of crushing
defeats in the first half of the 1890s, which resulted in the decimation of union
membership and significant erosion of the gains that had been made in the
previous decades (Bennett 1994: 10–13; Hutson 1983: 43–6).
Significantly, the employers had fought the great disputes of the 1890s
under the banner of ‘freedom of contract’—that is, their purported right
to negotiate terms and conditions of employment directly with workers as
individuals, without the interference of third parties such as trade unions. This
was, of course, the anthesis of collective bargaining and is eerily reminiscent