Salient. Victoria University Student Newspaper. Volume 36, Number 2. 7th March 1973
The Right to Strike in N.Z. — labour's leg irons
The Right to Strike in N.Z.
labour's leg irons
The Government and the news media frequently [unclear: presen] strikes as subversive attempts to undermine New Zealand, economy. In the article reprinted here from the Public Service Journal, Bert Roth, a well known labour [unclear: histori]. from Auckland, shows the extent of government [unclear: attem] to subvert workers' right to strike since 1894. His [unclear: histoi] survey provides a useful background to the Industrial Relations Bill, introduced by the National Government year, which proposes an overhaul of industrial relations legislation. The Labour Government sent the bill to a se committee, which has just finished hearing submissions it. In a subsequent issue we will print extracts from som submissions on the bill and commentaries on it.
The early trade unions in New Zealand, in the nineteenth century, had an unfettered right to strike. What is more, strikes were frequent, though usually of short duration and confined to one locality.
Even policemen went on strike, in Dunedin in 1872, and though the authorities were undoubtedly displeased, the wayward constables did not contravene any industrial legislation.
The first nation-wide strike took place in 1880, when telegraph operators ceased work throughout New Zealand, and in 1890 the maritime strike involved seamen, watersiders, miners and other workers—some 8000 men al-together — in a stoppage which lasted 56 days.
The first relatively minor restriction of the right to strike came in 1894, in the Industrial Conciliation and Arbitration Act. Section 29 of this new Act provided that no union or employer would suspend or discontinue employment while a dispute was before the Arbitration Court or before a Board of Conciliation, but it added a clause saying "nothing herein shall be deemed to prevent any suspension or discontinuance of any industry, or of working therein, for any other good cause."
Amendments to the Act passed in 1898 and 1900 laid down penalties for breaches of awards, but this was taken a step further in 1905, when another amending Act deprived unions and their members of the right to strike in industries and districts where an award or agreement was in force. To strike, or to take part in a strike, or to propose, aid or abet a strike, or a movement intending to produce a strike, now became an offence liable to a fine not exceeding £100 in the case of a union and £10 in the case of a worker.
A Country without strikes?
An official commentary in the Labour and Employment Gazette of May, 1954, suggested that these fines were necessary because "apparently none of the legislation so far enacted was found adequate to deal with strikes by members of unions which were parties to awards and industrial agreements." In fact, not a single strike in contravention of the Arbitration Act had occurred by 1905. The penalties were imposed first, and then the strikes followed: one only in 1906, but 12 already in 1907. Offenders were prosecuted and fines were levied, but more strikes followed, despite all attempts to impose further restrictions.
An amending Act in 1908 included an elaborate definition of the term "strike," with special emphasis on the intention of workers. It made striking a continuing offence, and imposed special penalties for strikes in certain named industries connected with transport, public utilities and the supply of food. Unions not registered under the Arbitration Act were still free to strike without penalty.
The Federation of Labour urged its affiliations to cancel their registrations for this very reason, but this loophole was closed in 1913, with the passing of the Labour Disputes Investigation Act, which restricted the freedom to strike of all unions outside the Arbitration Act. At about the same time the Supreme Court ruled that a registered industrial union was not entitled to use its funds to help strikers and their families.
Still in 1913, which was, of course, the year of a nationwide waterfront strike, amendments to the Police Offences Act provided penalties for "unlawful intimidation or violence with a view to restricting the freedom of any person to do or abstain from doing any act," and specifically outlawed the traditional union right of peaceful picketing, [unclear: tere] called watching or besetting a place of work or its approaches.
In 1932, under the impact of the depression hunger riots, Parliament passed the Safety Conservation [unclear: till] in force today), [unclear: allowed] the proclama-[unclear: a] state of emergency [unclear: tin] circumstances, such [unclear: actual] or threatened [unclear: which] would "deprive [unclear: munity] or any sub-[unclear: portion] of the com-[unclear: of] the essentials of [unclear: ra].page 11
[unclear: rtiy] before the [unclear: out-] of war, in July, [unclear: the] Labour Govern-[unclear: a] took powers to de[unclear: er] a union whose [unclear: ers] had joined in a [unclear: tinuance] of em-[unclear: tent]" which had [unclear: d], or was likely to [unclear: a] serious loss or in-[unclear: nience]. Such a dis-[unclear: luance] was defined [unclear: broadly], to include [unclear: usal] by workers to [unclear: t] work in which [unclear: were] normally em-[unclear: d], and any method, [unclear: r] omission likely to [unclear: a] the effect of inter-[unclear: lg] or impeding These powers were on the day after Act was passed, [unclear: st] the Otahuhu [unclear: eal] Manure Work-[unclear: nion], and they have [unclear: used] on a number [unclear: sessions] since then, [unclear: recently] in [unclear: Novem-] 1971, against the Seamen's Union.
[unclear: a] strikes illegal
[unclear: ime] Strike and Lock-[unclear: nergency] Regulations [unclear: in] October, 1939, made [unclear: ikes] illegal, whether were registered or [unclear: d] penalised strikers as [unclear: those] who encouraged [unclear: ted] others to strike.
The term "strike" was defined more broadly than ever before, to include any action intended to, or having a tendency to, interfere with the effective conduct of industry. Nevertheless, the official statistics show twice as many strikes and strikers in the last year of the war than there had been in the first year, and by the time these regulations were revoked, on 31 December 1951, New Zealand had passed through its most devastating industrial conflict.
In 1947 another amending Act provided that all strike proposals had to be submitted to a secret ballot—a rather curious piece of legislation, because strikes remained illegal, even if the ballot was carried. No immediate deterrent effect was evident, for the number of strikers rose steeply in the years after 1947.
During the 1951 waterfront dispute the Government proclaimed a state of emergency under the Public Safety Conservation Act, and issued stringent emergency regulations which included even a refusal or failure to work overtime by any number of workers among the definitions of a strike. They also made union officials individually responsible for strike action by their members, and made the union responsible for offences committed by their officials.
Once the dispute had ended, these regulations were revoked, but their place was taken by new amendments to the Arbitration Act which again considerably increased the penalties for striking and widened the definition of a strike. Other amendments to the Police Offences Act put new obstacles in the way of union activities, such as processions, demonstrations, or the display of posters, banners or badges in support of a strike.
The Waterfront Industry Act of 1953 extended the penal provisions of the Arbitration Act to unions on the waterfront.
Shackling the Unions
Oddly enough, the harsher the law became the less it was enforced, and after 1955 the Labour Department ceased altogether to prosecute strikers. When the employers complained about this, the Government gave them powers to initiate prosecutions themselves. They did so in a few cases, and obtained a verdict in 1965 against a freezing workers' official who had called a stop-work meeting, but since then the employers, too, have given up attempts to prosecute.
The federation of Labour has consistently upheld the right to strike as "the ultimate weapon and the final defence of the workers," to quote the late F. P. Walsh. The National Government, however, has taken a different view, and virtually every piece of industrial legislation in recent years has attempted to impose fur thet shackles on tin union movement The Shipping and Se men Amendment Bill in 1970 included penal clauses which rendered unions and union officials liable to monetary fines and terms of imprisonment. This Act lapsed, though Government members had boasted that they would apply the same penalties to other strike-prone industries, such as the freezing works.
In 1971 another Shipping and Seamen Amendment Bill revived a clause used in the Waterfront Strike Emergency Regulations 20 years earlier by declaring union officials guilty unless they could prove that the offence (such as a strike by their union) had been committed without their knowledge, or that they had done everything in their power to prevent the commission of the offence.
The Stabilisation of Remuneration Act that year made unions liable to fines of up to $1000 and individuals to fines of up to $100, and the Stabilisation of Remuneration Regulations of 1972 raised the maximum fine for individuals to $400 or a prison term not exceeding three months, to which could be added a further fine of $10 a day if the offence was a continuing one. The current Industrial Relations Bill, finally, introduces the new offence of conducting a political strike, for which penalties are provided
Penalties never work
The stubborn persistence with which these repressive measures have been brought forward—contrary to the advice of experienced administrators—supports the belief that the Government is concerned less with industrial harmony than with provoking unrest in the hope of gaining political capital. As this brief historical survey shows, increasingly severe legislation has had no deterrent effect, and at times the introduction of new penalties and restrictions has actually been followed by a rapid increase in the number of strikes.
The futility of using penal sanctions to solve labour disputes was shown in recent confrontations in Australia and Britain and has been pointed out by many enlightened observers.
N. S. Woods, a former Secretary of Labour, wrote that the extraction of penalties was "somewhat incompatible" with the object of restoring a good working relationship, while A. Szakats, the author of the textbook "Trade Unions and the Law," suggested that as our existing penalties for striking were unenforced—"and perhaps unenforceable" — they should be "removed from the statute book and replaced by enactments which command respect and obedience by everybody."
As long ago as 1946, Sir Hartley Shaw cross told the British House of Commons: "You might as well try to bring down a rocket bomb with a peashooter as try to stop a strike by the processes of the criminal law."