that compulsory arbitration has impeded the development of good industrial
relations because the parties have come to believe that disputes will ultimately
be arbitrated however they conduct themselves.
Certainly, the Act greatly increased the legal standing and prerogative of
‘registered’unions, and the number of unions and union membership, which
tripled to over 365,000 between 1901 and 1911 (ACTU 2015). Compulsory
arbitration played a major part in the expansion of unionism, because it
provided a number of benefits to registered unions. These included corporate
identity, preference for union members, and a monopoly of coverage in
certain designated industries. Most importantly for unions, the system now
gave them a guaranteed role in industrial relations. Arbitration guaranteed the
existence of registered unions, because employees could only be represented
by a registered union in the case of a dispute, and it was only necessary for one
party to activate the arbitration process by reference to a tribunal. This pro-
cedure effectively obliged employers to recognize unions. It seems obvious
that many unions were formed because of the benefits which the arbitration
system gave them.
In 1930 the power of unions was significantly increased by the Scullin
Labor government (Sykes 1964). The original Act contained a clause prohib-
iting strikes and lockouts, withfines and penalties, including imprisonment,
for breaches of these provisions. These provisions were also included in
states’legislation. The 1930 amendments abolished prohibition of strikes
and lockouts and replaced them with much weaker employer rights to include
‘bans’clauses in awards, for breaches of which employers could seek court
injunctions and contempt-of-courtfines for ignoring these injunctions.^1
However, bans became a very common form of union action in exercising
bargaining power (Sykes 1964).
The Menzies government, beginning in 1951, introduced a process of statu-
tory amendment to the Act whereby the Arbitration Court could issue
mandatory orders to comply with an award, with penalties (including impris-
onment) for non-compliance by unions and individuals. The Arbitration
Commission still needed to approve an anti-ban clause in the award.
In 1969, however, the viability of these penalties was sorely tested by the
case of Clarrie O’Shea (1906–1988), the Victorian state secretary of the tram
workers union and a leading member of pro-China Communist Party, CPA
(ML). He was jailed for contempt of the Industrial Court when he disobeyed a
court order that his union payfines, under the penal sections of the Act. His
jailing resulted in unprecedented strike action in several states, including a
general strike in Victoria. The matter was ‘solved’, intriguingly, with an
anonymous benefactor paying the union’sfines.
(^1) In 1936 the High Court ruled that anti-strike provisions could be included in awards.
Australia’s Industrial Relations Singularity