Chapter 17 from: J.J. Ray (Ed.) "Conservatism as Heresy". Sydney: A.N.Z. Book Co., 1974

This chapter originally appeared as a column in Nation Review, 13 April 1973, p. 785.

How to Control Union Power

John Ray

OUR CONTINUING WAVE Of petrol strikes, particularly in NSW, must be causing a lot of people to think that it is about time we had something like America's Taft-Hartley amendment in Australia. Under this law an American president can order striking workers back to work if their strike is endangering the national economy.

Transferring this legislation directly to Australia wouldn't work at all, of course. It is directly dependent on the immense prestige of the presidential office in the U.S.A.-to which we have no equivalent. An Australian PM ordering workers back to work would be greeted only with amused smiles.

We might consider a law that said some restriction of the right to strike must be accepted where workers are employed in a strategic industry-and simply fine such strikers whenever a strike occurs, regardless of the reason for the dissatisfaction. To do so however would only be to run up against the same basic problem -enforcement.

If strikers simply choose to ignore both the law and the instructions of their government, there is nothing at the moment that we can do about it. You can't put a whole union into jail. Even jailing their leaders, as we have found in Australia, just doesn't work.

Labor has no answer to the problem. I do however think that we in Australia are in a unique position to apply what would in fact be a workable solution. This stems from Australia's long commitment to the notion that disputes between unions and employers should be settled in the courts-just as are disputes between individuals.

We no longer allow the law of the jungle to rule in disputes between individuals. Why should we allow it to rule in disputes between groups of individuals? Surely no one would dispute that the rule of law is better than the rule of might.

Our Australian system falls down, however, precisely because we can never have enough police to lock up all those who flout industrial court decisions. We have the legal system-which is a start that other countries do not have -- but we don't have the power to back it up.

In this situation there is an historical precedent we can refer to. There was once before a time when the king's law could not always be enforced -- in the times of old England before police had ever been invented. An individual who defied the law in those days could often not be caught so he was declared an 'outlaw'. This meant that by defying the law he placed himself outside the law, i.e. he had to forgo his rights under law and the protection that the law affords even to the criminal.

In other words, anyone who so chose could use him for target practice without committing any crime or fearing any legal penalty. It meant he was on his own. For creatures of civilisation it was the ultimate penalty indeed. We still have that penalty available today.

The beauty of providing such a penalty for strikers who defied court orders to return to work is that it would never have to be used. One individual might risk such a penalty but a whole group of strikers would have to be totally out of their minds to do so. Even if a subset of strikers did decide to stay out, enough of the strikers would be determined not to risk it to make a continuation of the strike of little effect. This incentive to avoid outlawry would be provided by the fact that not only police and the army would have the right to beat up, torture, imprison and kill the outlaws but vigilante groups of enraged citizens could also do so.

At present strikers are having it both ways. They have the freedom to injure other peoples interests while other people have no right to hit back at them. Their freedom is our unfreedom. Their freedom to defy the court deprives us of the freedom to buy petrol.

They are destroying the basic symmetry of all legal philosophy -- that rights imply duties. They are accepting the protection afforded by law while acknowledging no obligation to the law. We may have to restore the symmetry by withdrawing the protection. As societies become more and more interdependent, strikes will become increasingly disruptive and intolerable. Societies will be forced to insist on the rule of law in industrial disputes.

It is sad and paradoxical that outlawry may be the only way to achieve it.

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