INTERNATIONAL
LABOUR
OFFICE
STUDIES AND REPORTS
Series A (Industrial Relations) No. 32
FREEDOM OF ASSOCIATION
VOLUME
V
UNITED STATES OF AMERICA, CANADA, LATIN AMERICA,
SOUTH AFRICA, AUSTRALIA AND NEW ZEALAND,
INDIA,. CHINA, JAPAN
GENEVA
1930
Published in the United Kingdom
For the INTERNATIONAL LABOUR OFFICE (LEAGUE OF NATIONS)
By P. S. KING & SON, Ltd.
Orchard House, 14 Great Smith Street. Westminster, London, S.W.I
L
PREFACE
In the Introduction to the first volume of this work — Freedom
of Association : Comparative Analysis — attention was called to the
manner in which the enquiry arose, the decision of the Governing
Body of the International Labour Office in pursuance of which it
was undertaken, the plans on which it was carried out, and the objects
which the International Labour Office had in view.
The fifth volume, now published, comprises monographs on
freedom of association in the United States of America, Canada, Latin
America (I, South America : Argentine Republic, Brazil, Chile Colombia, Peru, Uruguay, Venezuela ; II, Central America : Guatemala,
Nicaragua, Costa Rica, Salvador, Honduras, Panama ' ; III, Cuba),
South Africa, Australia and New Zealand, India, China, and Japan.
In each of these monographs an effort has been made to study
not only the national legislation relating to trade unions, but also the
relevant legal decisions and administrative practice and the actual
position of trade unions.
It should be noted that these studies have, so far as the differences
in the legal systems in force permitted, been based on a uniform
scheme : the first part traces the history of the trade union movement
and trade union law ; the second part is devoted to the present legal
status of associations ; the third part deals with the possible forms
of action by trade unions in the various departments of social and
economic life and the limits of such action. The conclusion deals
with the position of trade unions in law and in fact.
1
A special supplement dealing with. Mexico will be published later.
CONTENTS
Page
vn
PREFACE
UNITED STATES OF AMERICA
PREFATORY N O T E
CHAPTER I : The Evolution
Associations
i
and Present
Position
of
Vocational
3
§ i. The Development of the Legal Regulation of Trade Union
Activities
§ 2. Development and Present Organisation
Associations and Trade Unions
Associations of Employers
Associations of Wage Earners
of
4
Employers'
CHAPTER I I : The Legal Status of Trade Unions
13
13
22
35
§ 1. Relevant Legal Institutions
Injunctive Relief
The Federal Jurisdiction
Judicial Supremacy
33
35
47
51
§ 2. The Union and its Members
The Process of Organisation
Legal View of Unions' Existence
55
55
63
CHAPTER III : The Objects and Activities
of Trade Unions . . .
76
§ 1. Kinds of Objects and Activities
Participation in Social Institutions
Mutual Benefit Activities
Collective Bargaining
77
77
78
80
§ 2. Criminal Law and Policing in Collective Disputes . . .
82
§ 3. Civil Law in Collective Disputes
Legality of Means
Legality of Purposes
Public Necessity
86
88
98
no
CONCLUSION
116
BIBLIOGRAPHY
119
CONTENTS
X
CANADA
Page
CHAPTER I : The Evolution
and Present Position of Trade Unionism
121
§ 1. The Development of Legislative Regulation
121
§ 2. The Evolution and Present Organisation of Trade Unions .
Workers' Trade Unions
Employers' Associations
125
125
128
CHAPTER II : The Legal Status
of Trade Unionism
129
§ 1. The Right to Combine for Trade Purposes
129
§ 2. The Legal Status of Trade Unions
133
CHAPTER III : Legal Restrictions
on Trade Union Activities
§ 1. Picketing
Federal Law
Provincial Law
Attitude of the Trades and Labour Congress
§ 2. The Right to Strike
Sympathetic Strikes
Breach of Contract in Public Utilities
The Industrial Disputes Investigation Act
. .
.
.
.
136
.
136
136
140
142
. . . .
CONCLUSION
144
144
145
145
149
LATIN AMERICA
INTRODUCTION
151
I. — SOUTH AMERICA
Argentine Republic
CHAPTER I : History
of the Trade Union Movement
156
§ 1. The Workers' Trade Union Movement
156
§ 2. The Employers' Movement
160
CHAPTER II : The Legal Status of Trade Associations
162
§ 1. The Constitutional Guarantee
162
§ 2. Legal Personality of Trade Associations
162
§ 3. The Social Security Act
164
§ 4. Bills concerning the Right of Association for Trade Purposes
. . . .
165
CONTENTS
XI
Page
CHAPTER III : Possibilities
oj Trade Union Action
168
§ i. Participation of Trade Associations in the Administration
of Social Legislation
16S
§ 2. Bills concerning Collective Agreements, Conciliation and
Arbitration
169
CONCLUSION
172
BIBLIOGRAPHY
173
Brazil
CHAPTER
I : History of the Trade Union Movement
CHAPTER II : Legal System governing
175
Trade Unions
178
§ 1. Agricultural Trade Unions Act (6 January 1903) . . . .
178
§ 2. The Trade Unions Act of 5 January 1907
Scope of the Act
Conditions as to Form
180
180
181
CHAPTER III : Powers of Recognised
Trade Unions
183
CONCLUSION
186
BIBLIOGRAPHY
187
Chile
CHAPTER I : History of the Trade Union Movement
1S8
§ 1. The Workers' Movement
18S
§ 2. The Employers' Movement
192
CHAPTER II : Present Legal Position
of Trade Associations
.
.
193
§ 1. Works Unions
Constitution of the Works Unions
Internal Organisation of the Works Unions . . . .
Activities of the Works Unions
Profit-Sharing
195
195
196
197
199
§ 2. Trade Unions
..."
201
CHAPTER III : Scope and Limits of Trade Union Action
204
§ 1. Incorporation
204
§ 2. Social Work
204
§ 3. Collective Agreements
205
XII
CONTENTS
Page
§ 4. The Settlement of Labour Disputes
Workers' Delegations
Permanent Conciliation Boards
Regulations concerning Strikes and Lock-outs
. . .
206
206
208
210
CONCLUSION
213
BIBLIOGRAPHY
215
Colombia
CHAPTER
I : The Trade Union Movement
216
CHAPTER II : Legal Position of Trade Associations
§ 1. Freedom to Combine for Trade Purposes
217
•.
.
217
§ 2. The Right to Strike and the Settlement of Labour Disputes
Direct Settlement of Labour Disputes
Conciliation
Arbitration
Limits to the Right to Strike and to Declare a Lock-out
218
218
218
219
220
BIBLIOGRAPHY
222
Peru
CHAPTER
I : The Trade Union Movement
CHAPTER II : Legal Position of Trade Unions
§ 1. Freedom to combine for Trade Purposes
§ 2. The Right to Strike and the Settlement of Labour Disputes
The Settlement of Disputes . '
The Right to Strike
BIBLIOGRAPHY
223
224
224
225
225
227
229
Uruguay
CHAPTER
I : The Trade Union Movement
CHAPTER II : Legal Position of Trade Unions
Proposed Regulations for Trade Associations
BIBLIOGRAPHY
230
231
231
239
Venezuela
General Summary
BIBLIOGRAPHY
240
242
CONTENTS
XIII
II. — CENTRAL AMERICA
Guatemala, Nicaragua, Costa Rica, Salvador, Honduras, Panama
Page
CHAPTER
I : The Trade Union Movement
243
CHAPTER II : The Legal Position of Trade Associations
BIBLIOGRAPHY
.
.
.
. .
. "
245
24S
III. — CUBA
CHAPTER
I : The Trade Union Movement
CHAPTER
II : The Legal Origin of Trade Associations
CHAPTER III : Possibilities
Union Action
249
and Limitations
. . . .
in regard to
251
Trade
255
BIBLIOGRAPHY
259
SOUTH AFRICA
CHAPTER
I : Evolution
and Present Position of Trade Unionism
CHAPTER II : Present Position oj the Right
gards Trade Unions
of Association
261
as re265
.Legislation affecting the Right of Association . . . .
Conditions of the Legal Existence of Trade Unions . .
Rights and Limitations of Action
•
CONCLUSION
:
265
266
266
271
AUSTRALIA AND NEW ZEALAND
INTRODUCTORY N O T E
CHAPTER I : Historical Introduction.
Unions
273
— Present Position
of Trade
'.
274
§ 1. Australia
274
§ 2. New Zealand
281
CHAPTER II : Present Legal Status
2S4
§ 1. Sources of the Law
284
§ 2. The Legal Existence oí Trade Associations
Registration
Cancellation of Registration
Dissolution
; . .
Amalgamation of Associations — Federations and Branches
285
285
296
297
298
XIV
CONTENTS
Page
§ 3. The Activities of Trades Associations
Legal Status of Trade Associations in Wage-Fixing and
Arbitration Proceedings
Trade Associations and Industrial Agreements . . .
Labour Disputes
Measures to Supplement the System of Arbitration . .
Trade Associations and the State
298
299
310
312
318
320
SUMMARY AND CONCLUSION
325
BIBLIOGRAPHY
327
INDIA
§ 1. Evolution and Present Position of Trade Unionism
Growth, Nature and Strength of Trade Unions
§ 2. Development of the Legislative Regulation of the Right of
Association in India
Present Position of the Right of Association
329
329
336
33S
CONCLUSION
348
APPENDIX
350
CHINA
CHAPTER I : History
of Legislation
353
§ 1. Former Law (Before the Revolution of 1911)
353
§ 2. The Constitutional Guarantee of the Right of Association
§ 3. Acts and Bills on the Right of Association for Trade Purposes
Under the Former Peking Government
Under the Nationalist Government
354
CHAPTER II : History of the Trade Union Movement
357
357
362
364
§ 1. Before 1918
364
§ 2. From 1918 to June 1925
365
§ 3. From June 1925 to June 1926
367
§ 4. From June 1926 to August 1927
368
§ 5. From August 1927 to 1928
372
§ 6. 1928
375
CHAPTER III : Trade Union Legislation
: .
378
APPENDIXES :
I : Regulations concerning the Formation of Trade Unions
by the Workers, Promulgated by the Government of Canton
in November 1924
380
CONTENTS
X
V
Page
II : Trade Union Act : Date of Promulgation 18 October 1929,
and of Coming into Operation 1 November 1929 . . . .
III : Act concerning the Settlement of Labour Disputes, Published by the Government of Nanking on 9 June 1928 .
IV : Factories Bill
BIBLIOGRAPHY
383
391
397
399
JAPAN
INTRODUCTION
401
CHAPTER I : Evolution and Present Position oj Employers'
ployees' Associations
and Em403
§ 1. Development of Legislative Regulation of Associations .
During the Feudal Era
Under the Imperial Regime since 1868
Legal Control of " Trade Associations ", 1868-1889 .
Constitutional Guarantee since 1889
Subsequent Development, 1889-1925
Latest Legislation, 1925-1926
403
403
403
405
405
406
407
§ 2. Development and Structure of Employers' and Employees'
Associations
Employers' Associations
Employees' Associations
408
408
412
CHAPTER II : Conditions
of Legal Existence
419
§ 1. Constitution of 1889
419
§ 2. Civil Code of 1896
Law relating to " Legal Persons " (Hôjin)
Law relating to " Partnership " (Kumiai)
420
420
423
CHAPTER III : Legal Limits
425
Introduction
§ 1. Employers' Associations
Legal Associations (Hôteki Dantai)
Free Associations (Nin-i Dantai)
425
. . . ' . . . .
§ 2. Employees' Associations
Examination of Legal Limits
Consequences of the Lack of Legal Personality . . .
The Attitude of Employers
§ 3. Trade Union Bills
The Trade Union Bill submitted by M. Bunji Suzuki
CONCLUSION
BIBLIOGRAPHY
425
425
428
430
433
444
447
451
455
458
460
0
UNITED STATES OF AMERICA
PREFATORY NOTE
This study of freedom of association in the United States is on a
somewhat different footing from the studies made of other countries.
In view of the fact that the position in the United States is exceedingly complicated and demands access to sources not easily available
outside that country, it was not considered feasible for the actual
work of preparation to be done in the International Labour Office
itself. The report has accordingly been prepared by competent
students of the question in the United States, the task of the International Labour Office being confined to that of general supervision
and editing.
The reader who wishes to go into the question of freedom of
association in the United States more completely may be referred
to an exhaustive text-book published early in 1927, The Law of
Organised Labour and Industrial Conflicts \
This book mentions every reported case at least once and will
enable the reader to take the various citations made in the ensuing
pages and go back to the court reports themselves. This will tell
him more clearly what are the qualifying details of the cases which
gave birth to the dicta enunciated by the judges. Should he try
to formulate clear rules of judicial law out of the material given here
he is liable to be thwarted by the variation of detail from case to
case, by the variation of attitude from time to time and by the
multifarious jurisdictions into which the United States is divided.
Explanations of these jurisdictions, of the federal system, and of
1
Edwin Stacy OAKES : The Law of Organised Labour and Industrial
Conflicts. Rochester and New York, Lawyers' Co-operative Publishing
Company.
2
FREEDOM OF ASSOCIATION
the predominant position which courts have in the making of the
law will be found briefly set out in an article published in the
International Labour Review, " The Constitutionality of Labour
Legislation in the United States of America " \
1
William Gorham RICE : " The Constitutionality of Labour Legislation in the United States. " International Labour Review, Vol. XIV,
No. 5, Nov. 1926, pp. 610-659, and No. 6, Dec. 1926, pp. 779-802.
CHAPTER I
THE EVOLUTION AND PRESENT POSITION
OF VOCATIONAL ASSOCIATIONS
Good times have led to demands for better terms of work.
These have led to strikes, strikes to unions, unions to employers'
associations. Slack times have led to wage-cuts, to strikes, deflation
of unionism, and, in the nineteenth century, to a hope among the
lower-income classes that political action would bring relief.
Strikes have led to employing companies appealing to the courts for
aid, among other defences.
As a result there are about 2,000 employers' associations, about
150 national unions, and about 800 company unions. Membership
in the bona fide unions is about 4.5 millions, in the company unions
over a million. Most of the bona fide unions aim at businesslike
negotiation over terms of work. The company unions usually aim
at welfare work and negotiation over the less crucial terms of work.
The employers' associations are divided between negotiatory and
belligerent.
The birth of the modern labour movement in the eighteen-eighties
was accompanied by a great many trials for conspiracy. These legal
attacks reappeared in the nineties as injunction cases. Since then
it is the courts of equity to which the employing companies have
usually appealed for help. A landmark of the route since then is
the Danbury Hatters case, which required damages from union
members for permitting their union to undertake a boycott. The
Coronado case required damages from an unincorporated union which
called a strike by which a business was ruined. Both these cases
were under the federal anti-trust laws. The Hitchman case limited
the rights of union organisers in non-union industries. The American
Steel Foundries case established a norm of one picket for each factory
gate during a strike. The Duplex and Truax cases asserted the
freedom of the courts to adjudicate labour cases without hindrance
4
FREEDOM OF ASSOCIATION
from the legislatures. The Bedford Cut Stone case forbade union
orders not to handle non-union material and the Brims case forbade
companies to agree not to handle it. The Whitney case upheld the
criminal syndicalism laws.
§ 1. — The Development of the Legal Regulation
of Trade Union Activities
During most of the history of the United States the courts have
recognised the freedom of workers to form unions. As unions have
become more and more active and powerful, more and more cases
have come into court and there has been a growing body of judicial
restrictions upon the doings of the unions.
The principles which are used by the courts have their foundations
in the common law of England. The branch of it which is most
prominent in the adjudication of cases on the freedom of association
is the law of conspiracy. The law of conspiracy began in England
with the suppression of political plots. At the close of the eighteenth
century the revolt against mercantilism was at its height and laisser
faire was the rule of the day. As a corollary to this rule judges
extended the law of conspiracy to forbid economic associations. A
conspiracy is " a combination of two or more persons by some
concerted action to accomplish some criminal or unlawful purpose
or to accomplish some purpose, not in itself criminal or unlawful,
by criminal or unlawful means ". In the United States this rule has
almost never been held to forbid the existence of a vocational association. An association which calls an unlawful strike is an unlawful
combination only in so far as it is involved in the strike.
A radical modification has been made in the United States in
the use of the law of conspiracy in association cases. The cases have
been given to equity courts, which typically command persons to
refrain from acts which the courts decide would be wrongful. Equity
courts forbid only civil wrongs. Therefore, the use of equity courts
has been accompanied by the finding of the wrongfulness of objectionable acts in their harm to freedom in carrying on business, rather
than in their constituting a conspiracy to commit public crimes.
At the beginning of the nineteenth century, when labour unions
first appeared in the United States, they were generally held illegal '.
1
Early cases are reported in COMMONS and GILMORE : Documentary
History of American Industrial Society, Vols. 3 and 4.
UNITED STATES OF AMERICA
5
Often this seems to have been because of their violent methods, b u t
naturally such methods led to the courts frowning on unions as such.
U p to 1S30 in almost all the cases the juries had found a criminal
conspiracy, often because the workers were trying to establish a
closed union shop.
T h e years 1S33, I 8 3 5 , and 1836 were years of marked business
prosperity. Many unions were formed. T h e r e have been found
records of 173 strikes between 1833 an '-l I 837 1- I n 1836 there was
a burst of activity in forming employers' associations, which used
the blacklist.
A turning point in the list of conspiracy decisions was reached
with the conviction of the New York City t a i l o r s 2 .
T h e y had secured an increase of wages by striking in the busy
season. W h e n slack times came the employers cut wages again. T h e
workers struck and picketed the shops. They were indicted for
conspiracy. Their union presented a bill to the g r a n d jury charging
the employers with combining to lower wages. T h e tailors were
found guilty. T h e Evening Post estimated t h a t several thousand
workers, two-thirds of the workers in the city, belonged to the Trades
Union 3 . These raised a great protest at the decision. Partly as a
result of this the workers were acquitted in two cases that followed
in the same year 1836 4 .
T h e occasion for litigation was removed when prosperity and
unionism collapsed in 1837. I n 1840 an association of shoe workers
in Boston were convicted of conspiracy, but the highest court of
Massachusetts sustained a demurrer to the indictment in 1842, long
after the strike had been forgotten and the labour union had expired
because of unemployment. T h i s is the often-named case of Commonwealth v. Hunt, in which Chief Justice Shaw declared that associations of workers were legal. H e also said that courts should look
to the means used by the combination, and not to its object, and
held that the purpose of the shoe workers to secure the closed shop
was legal 5 . T h i s ruling has not been followed in most jurisdictions.
1
Listed in 1 COMMONS and ASSOCIATES : History of Labour in the
United States, 478 et seq.
2
Xew York Tailors case (1836), 4 COMMONS and GILMORE 315-3333
Ne'di York Evening Post, 13 June 1836 ; reported in 4 COMMONS
and
GILMORE 332.
4
Hudson Shoemakers case (1836), 4 COMMONS and GILMORE 277-312 ;
Philadelphia Plasterers case (1836), 4 COMMONS and GILMORE 335-341.
* Commonwealth of Massachusetts v. Hunt (1S42), 4 Metcalf i n .
6
FREEDOM OF ASSOCIATION
D u r i n g t h e ten years 1844-1853 little trace can be found of a n y
unionism b u t Utopian, socialistic a n d social uplift unionism. I t s
activities did not bring t h e unions into court. T h e r e was a revival of
unionism a n d conspiracy cases i n t h e sixties (Civil W a r , 1861-1865).
T h e y led to agitation for legislative relief and in the late sixties and
in t h e seventies a number of states passed laws to make clear that
it was legal to combine to raise wages a n d reduce hours. Agitation
and organisation took on new life in the eighties and reached their peak
in 1886 and 1887 when many indictments for conspiracy were brought
against unions. There seem to have been more conspiracy cases in
the eighties than during all t h e rest of t h e century. Many state laws
were passed which strengthened t h e application of t h e common law
doctrine of conspiracy in labour disputes. N e w York and Maryland
later repealed theirs. Some labour unions desired incorporation in
the hope of avoiding t h e law of conspiracy. Another reason given
w h y they should incorporate was that when they had legal recognition
the employing companies would n o longer ignore their existence a n d
refuse to have dealings with them. During t h e eighties t h e first
statutes against boycotts were passed ; also the first statutes forbidding blacklisting or discrimination against union members. A t
the same time charges like " inciting to riot ", " obstructing t h e
streets ", " intimidation ", and " trespass ", were first used extensively in labour disputes. I n 1886 came t h e famous case of t h e
H a y m a r k e t riot. There was a widespread strike for t h e eight-hour
day in Chicago. I t was encouraged by t h e anarchist Black International. T h e police attacked t h e workers' meetings. A bomb was
thrown, which killed a policeman. T h e leaders of t h e International
were arrested a n d a number of t h e m were hanged, on t h e ground
that they were responsible, since they h a d been advising murder in
their speeches \
I n addition, t h e courts began to issue injunctions in labour cases.
T h e y were first used extensively in t h e Southwest railroad strike in
1886 s and gained publicity in an engineers' strike in 1888 \ T h e
1
See Spies v. People (1887), 122 Illinois 2 ; 23 Century
Magazine,
p. 835, April 1893, " The Chicago Anarchists of 1886 ; The Crime, the
Trial and the Punishment. "
2
MISSOURI BUREAU O F LABOR : Report,
1886, p. 34, " Official History
of the Great Strike of 1886 on the Southwestern Railway System. "
3
Chicago, Burlington,
and Quincy Railroad Company v. Union
Pacific Railroad Company (1888), United States District Court (Nebraska; .
UNITED STATES OF AMERICA
7
authority for issuing railroad injunctions was derived by the federal
courts from the Interstate Commerce Act and the Sherman Anti-Trust
Act. But statutory authorisation was not necessary, for the state
courts also began to issue injunctions. T h e acts against which injunctions were at first directed were crimes. T h e purpose of injunctions had always been to protect civil rights, not to prevent crimes.
T h e courts which issued injunctions pointed out t h a t t h e physical
property of the companies was in danger from trespass, arson, and
sabotage. W h e n they forbade picketing or boycotting, they pointed
out that already in the middle of the nineteenth century the law had
recognised good will as property. T h e Massachusetts Supreme Court
recognised the value of good will in a labour case as early as 1871.
Union officials had induced workers to quit a n d h a d hindered the
company from getting others. T h e company was given d a m a g e s 1 .
In 1888 a Pennsylvania court granted an injunction against a boycott
and gave as its reason that the value of the company's physical property was destroyed when the market was cut off '. By 1893 there
was a clear dictum recognising property rights in intangibles *.
Intangibles include both the expectancy that a company's customers
will continue to deal with it, and t h e expectancy t h a t its employees
will continue to work for it or that it will be able to replace them
when they leave.
T h e first concentrated period of injunctions was 1893-1894. I t
was a period of defensive strikes. T h e y were relatively unsuccessful.
A famous injunction case of this time was the injunction of Federal
Judge (now Chief Justice) Taft, which ordered the members of the
engineers' brotherhood on various railroads to handle the cars of
the A n n Arbor railroad, although the brotherhood had struck the
A n n Arbor road. I t was understood that they m i g h t either comply
or q u i t 4 . Another injunction forbade the workers of the Northern
Pacific railroad to q u i t 5 . T h i s was overruled by a higher c o u r t 8 .
Since then no injunction has directly prohibited quitting work. T h e
1
Walker v. Cronin (1871), 107 Massachusetts 555.
Brace Brothers v. Evans (188S), 53 Pennsylvania County Court 163.
8
Barr v. Trades Council (1894), 53 New Jersey Equity 101, or 30
Atlantic 881.
4
Toledo, Ann Arbor, and Northern Michigan Railroad Company
v. Pennsylvania Company (1892), 51 Federal 260.
a
Farmers' Loan and Trust Company v. Northern Pacific Railroad
Company (1894), 60 Federal 803.
* Arthur v. Oakes (1894), 63 Federal 310.
5
8
FREBDOM OF ASSOCIATION
American Railway Union struck in sympathy with the shop workers
of the Pullman sleeping-car company in 1894. T h e newspapers of
the time show that the railroads secured injunctions from the federal
courts in all districts affected by t h e strike. T h e strike centred in
Chicago. A t its height the Attorney-General of the United States
secured an injunction.
Federal troops were sent and the strike
leaders were arrested for contempt. T h e strike t h e n fell off. T h e
case of Debs ', who was president of the union, was carried to the
Federal Supreme C o u r t s . T h e decision of this Court against Debs
placed the injunction in labour disputes upon a firm legal basis.
Shortly afterward (1897) a case came to the F e d e r a l Supreme Court
under the Taft injunction. One of the engineers employed on a road
adjacent to the A n n Arbor road had read a copy of t h e injunction
but refused to handle an A n n Arbor car and yet had not quite quit
his job. T h e court decided that all persons w h o have actual notice
of the issuing of an injunction are bound by its terms, although the
order is not directed especially at t h e m nor served upon them '.
Injunctions which are intended to reach a large class of persons not
specifically named in the order are called " b l a n k e t injunctions".
T h e American Federation of Labor after the railroad strike in
1894 organised a Debs Defence F u n d . T h e 1894 convention declared
against conspiracy laws. I n 1895 the Federation drafted a bill to
be introduced into Congress which should restrict t h e power of t h e
federal courts to punish persons for contempt when their actions
were criminal under federal laws. I t also recommended jury trial in
contempt cases, the repeal of the Sherman anti-trust law, and an
amendment to the Interstate Commerce Act which would allow
strikes 4 .
T h e period 1898-1902 s was a period of war activity ; the Spanish-American W a r and the war in South Africa. T h e workers were
in a strong position. A s a result employers in the following years
prepared to fight by organising. One of the new employers' associations was the Anti-Boycott Association. I t was formed in 1903 to
start court action against the " W e Don't Patronize List " of the American Federation of Labor. I t was one of the chief instruments in
1
United States v. Debs (1894), 64 Federal 724.
In Re Debs (1895), 158 United States 564.
3
In Re Lennon (1897), 166 United States 548.
4
American Federationist, 1894, 1895.
5
See Willard THORP : Business Annals (1926). National Bureau of
Economic Research, Incorporated, New York City, pp. 138-139.
2
UNITED STATES OF AMERICA
9
carrying through the Federal Supreme Court the two leading boycott
cases : In 1908 the Court decided that the members of a local branch
of the United Hatters should pay damages for a boycott by the national
union, since the bo}'cott had disrupted the sales in various states of
a company which had refused to recognise the union l . In 1911 the
Court decided that a lower court had been correct in enjoining the
American Federation of Labor from putting a stove company on its
Unfair List 2. This case was undertaken partly because the president
of the company, Mr. Van Cleave, was also president of the National
Association of Manufacturers. These two cases put an end to the
Federation's boycott tactics.
By 1906 the American Federation of Labor recognised that its
campaign against the injunction in the Federal Congress depended
on a show of political power. It began its participation in politics
at this point \ When, in 1908, the liability of boycotters under the
federal Anti-Trust Act was established, the Act seemed to the
Federation to threaten even the existence of labour unions. The
Federation renewed its campaign for statutes to make the law more
certain and to modify it in favour of labour. It was opposed by the
Anti-Boycott Association. In 1910 the House of Representatives of
the Federal Congress passed an amendment to the Sundry Civil
Appropriations Bill. The amendment prohibited the use of the
appropriations for prosecuting labour unions under the federal AntiTrust Law. It did not go through the Senate. Anti-injunction Bills,
too, remained unpassed. In the elections of 1912 the American
Federation of Labor endorsed the Democratic candidates. The Democratic candidate for president of the United States, Wilson, was
elected on a progressive platform. Early in 1913 the Sundry Civil
Appropriations amendment passed boál Houses. It was vetoed by
Taft, who was still president. Soon afterwards it was passed again
and was signed by President Wilson, 23 June 1913. It has been reenacted regularly since t h e n 4 . In the summer of 1913 committees
of the House and Senate held hearings on the lobby activities of the
National Association of Manufacturers (employers), apropos of the
confessions of Mulhall, an agent of the Association. In 1914 the
1
Loewe v. Lawlor (1908), 208 United States 274 ; (1915), 235 United
States 522.
2
Gompers v. Bucks Stove and Range Company (1911), 221 United
States 418.
3
32 Journal of Political Economy 335, 349 (June 1924).
1
See, for instance, the Act approved 27 February 1925.
IO
FREEDOM OF ASSOCIATION
Clayton Anti-Trust A c t was passed '. I t included provisions which
affirmed the privilege of association 2 and granted to defendants in
certain federal contempt cases t h e power to demand trial by jury and
made other slight modifications in the processes of the federal equity
courts. T h e Federation spoke of t h e A c t as " Labor's Magna
Charta " \ A number of persons pointed out that the labour provisions of the Act did little more t h a n codify existing practice 4 . One of
these persons was ex-President T a f t 5 .
Seven years later h e h a d
become Chief Justice Taft of the Federal Supreme Court when its
decision 6 against a boycotting union first demonstrated authoritatively that the wording of the provisions was conservative. Shortly
after this he wrote an opinion of the Court deciding that the Act did
not prevent injunctions against picketing, although strikers should
be allowed to post " missionaries " ', and another opinion holding
that an Arizona statute like the labour provisions of t h e Clayton Act
was unconstitutional because the state courts had interpreted it as
limiting severely their powers to enjoin picketing and t h e like 8 .
These three decisions in 1921 were made within a few days of
each other. 1921-1922 m a y be spoken of as a period of legal depres-
'• Act of 15 October 1914 ; 38 United States Statutes at Large 730.
A number of states also have passed laws affirming the legal
privilege to associate for lawful purposes or providing that labour unions
as such shall not be held to be conspiracies in restraint of trade.
3
See 21 American Federationist 35, 957, 971 (1914) ; 22 American
Federationist 116, 293, 665 (1915).
4
Daniel DAVENPORT : " An Analysis of the Labor Sections of the
Clayton Anti-Trust Bill (1915) ", 80 Central Law Journal 146 ; " Labor
is not a Commodity ", 9 New Republic 112 (2 December 1916), Edwin
W I T T E : " Section Twenty of the Clayton Act (1916) ", 9 New Republic
243, and " The Clayton Bill and Organized Labor ", 32 Survey 360 ; " The
Labor Provisions of the Clayton Act (1917) ", 30 Harvard Law Review
632. See also House Report No. 627, 63rd Congress, 2nd Session ; Senate
Report No. 698, 63rd Congress, 2nd Session ; House Report No. 613,
62nd Congress, 2nd Session. The intention of the federal Congress which
passed the Act is discussed in MASON, Organized Labor and the Law
(1925), Chapter 10.
5
See 39 American Bar Association Reports 371-380 ; reprinted in
Senate Document 614, 63rd Congress, 2nd Session.
6
Duplex Printing Press Company v. Deering (1921), 254 United States
443. See " Economic Pressure Outside the Ordinary Course of Business ",
below.
7
American Steel'Foundries v. Tri-City Central Trades Council (1921),
257 United States 184. See " Schemes Involving the Use of Force as a
Means, " below.
8
Truax v. Corrigan (1921), 257 United States 312. See " Equity
Injunction, " above.
2
UNITED STATES OF AMERICA
il
sion for labour unions. Those -years were marked in the West of
the United States by prosecutions under the new criminal syndicalism
laws. T h e y were marked everywhere by the refusals of various
employing companies to deal any further with unions ; especially
the unions which had not gained extensive recognition until the W a r .
T h e legal part of this effort by employers was reinforced by the use
of " individual contracts ", or " defensive contracts ", as they were
called by the League for Industrial R i g h t s (before 1919 the American
Anti-Boycott Association y, which did m u c h to popularise them '.
Some employers had had the custom of requiring employees to sign a
contract that they would not join the union. I n 1917 a decision
of the Federal Supreme Court had established the rule that t h e
existence of these contracts gave special rights to the company against
union organisers a . T h e depression of 1921 gave to many companies
the opportunity to require their employees to sign these " individual
contracts " without standing to lose very much if there were a strike.
If the workers struck, the new employees were required to sign individual contracts. If the strikers solicited the new employees the
company was able to obtain an injunction against them on the plea
that the existence of the contracts created a n expectancy that t h e
employees would not join t h e union while they were employed and
that the strikers were interfering with the expectancy.
I t has been argued that 1921 marked the nadir of the legal
depression for labour unions and that since that time the courts have
delimited the legal privileges of unions less strictly 3 . T h i s goes along
w i t h the fact that since 1914 labour unions in the United States have
increased in power and stature and favour with the employing class.
T h e W a r and the year and a half of prosperity which followed it
were the chief reasons for the g r o w t h in t h e membership of the
1
Compare the League's editorial " Public Policy and Anti-Union
Contracts ", in July 1920. It argues that the open shop should not
mean the closed non-union shop and that " defensive contracts " should
not go so far as to require the worker to agree not to speak with union
officers. (2 Law and Labor 166.) Later issues give sample defensive
contracts.
2
Hitchman Coal and Coke Company v. Mitchell (1917), 245 United
States 229.
3
See Edouard LAMBERT : La lutte judiciaire du capital et du travail
organisés aux Etats-Unis (1923), Giard, Paris, especially Part 3, which
discusses the decisions more favourable to labour in 1922-1923. The same
suggestion is made in Heinrich .POLLAR : Die
Gewerkschaftsbewegung
in den Vereinigten Staaten (1927), Fischer, Jena, p. 230.
I2
FREEDOM OF ASSOCIATION
unions and for t h e more general acceptance among employers of t h e
idea that some of t h e claims of t h e unions were legitimate. T h i s
new prestige of the unions was not entirely wiped out b y t h e business
depression of 1921-1922, although membership fell sharply. F u r t h e r more the executive council of t h e American Federation of Labor has
announced that the campaign of some of t h e employers for an antiunion shop h a s largely spent its force ', and in 1923 t h e Ohio a n d in
1927 t h e N e w York high courts refused t o give consideration t o
"individual contracts" '.
On t h e other hand, t h e Federal Supreme Court in t h e Coronado
case in 1922 established the theory that labour unions were responsible
under t h e anti-trust laws and in 1925 it indicated t h a t t h e theory
should be p u t into practice in t h a t case 3 . I t has been supposed t h a t
the Clayton A c t of 1914 a n d t h e provisos in t h e federal appropriations
Acts since 1913 (see above) cut down t h e applicability of t h e federal
anti-trust laws to labour unions. B u t " there have been at least as
many successful prosecutions of working m e n under these laws as
prior to t h e passage " of t h e Clayton A c t 4 .
T h e appropriations
proviso only states n o one shall be prosecuted b y t h e United States
for joining a combination t o raise wages a n d t h e like, or for doing
acts to further the purposes of t h e combination, if t h e acts are not
in themselves u n l a w f u l 5 .
A number of prosecutions have been
carried through of the type of the Brims case, in which t h e prosecution
was approved b y t h e Federal Supreme Court in 1926. I t was against
building trades employers' associations and the carpenters' union
in Chicago, w h o agreed that n o non-union wood-trim should be
used 6 . Finally, the 1921 Supreme Court decision limiting picketing
to missionary work h a s been generally followed by courts in t h e
United States '.
1
AMERICAN FEDERATION O F LABOR, Proceedings
1926, p. 46.
- La France Co. v. Electrical Workers (1923), 108 Ohio St. 61, or 140
Northeastern 899 ; Exchange Bakery v. Rifkin, 31 May 1927, New York
Court of Appeals.
3
Coronado Coal Company v. United Mine Workers (1925), 268
United States 295.
4
COMMONS and ANDREWS, Principles of Labor Legislation (1927
edition), p. 105.
5
6çth Congress, ist session, Chapter 195 (1926).
s
United States v. Brims (1926), 47 Supreme Court 169. See also
Bedford Cut Stone Company v. Journeymen Stonecutters, Federal Supreme
Court, 11 April 1927.
7
COMMONS and ANDREWS, op. cit.
UNITED STATES OF AMERICA
13
§ 2. — Development and Present Organisation of Employers'
Associations and Trade Unions
ASSOCIATIONS OF EMPLOYERS
Historical. — A number of trade associations were in existence
before 1885. About 1885 employers' difficulties with labour began
to multiply. There were many strikes in 1886 ; the Knights of
Labor reached its peak ; the American Federation of Labor was
founded. The companies sometimes used their trade associations
to deal with the difficulties ; sometimes they formed separate employers' associations. Two important organisations which developed
at that time as offshoots of trade associations are the Stove Founders'
National Defense Association and the United Typothetae of America
(book, job and magazine printing). An interstate conference of
soft coal operators and mine workers began meeting in 1886. The
Stove Founders began negotiating agreements with the International
Holders' Union in 1891. During 1898-1902 industrial conditions
favoured the labour unions because of the Spanish-American War
and the war in South Africa. During these years negotiation was
the dominant activity of employers' associations and of the trade
associations which acted as employers' associations. There was a
reaction after that, and until the War (1917) there was an uninterrupted current of belligerent opposition to labour unionism and to
legislation favouring the working class. The National Association
of Manufacturers formed in 1896, established a lobby against labour
legislation in 1902. In the same year the American Anti-Boycott
Association, now the League for Industrial Rights, was formed. It
has fought many employers' cases before the courts. Associations
which has confined themselves to negotiations became hostile to
labour ; for instance, the United Typothetae of America (1903),
the National Founders' Association (1904), and the National Erectors' Association (1905). There was a movement to form " Citizens'
Alliances " in the several cities, which should oppose labour. During
the War and the prosperous period that followed it (to the middle
of 1920) labour unions were growing in influence and membership.
There followed a concerted effort by employers' associations against
H
FREEDOM OF ASSOCIATION
collective bargaining (the " open-shop movement ") and against
labour legislation '.
Types of associations. — There has been a great growth in the
n u m b e r of trade associations in the last years. A recent text-book
points out that they are generally unwilling to enter the field of labour
problems. I t says :
Most trade associations because of their fear of disruption
. . . .
and the desire of their members to have complete freedom of action exclude
discussion of, and organized effort in labor matters.
I t also states :
The trade association affords the medium for the concentration of the
thought and the experience of business men from which there ought to
spring new plans and new leadership working for the maintenance of
fair and just relationships which will protect public as well as private
interests 5 .
A n o t h e r prominent text argues that it is right that they should
keep out of labour disputes and industrial legislation ' . I n 1926 an
informal sample of 300 out of the 9,000 trade associations listed by
the United States Department of Commerce showed 84 which concerned themselves with labour problems, six of t h e m h a v i n g t h a t as
their principal raison d'être.
Professor Jones has classified three tendencies among employers'
associations. Those that approach one type are (1) " bitterly
opposed to organised labor. . . and determined to do all in their
power to destroy it ". T h e r e are a large n u m b e r which are (2)
" more conservative and cautious " and " view the problem from a
purely business standpoint, dealing w i t h labor to secure t h e best
bargain possible ". These, together w i t h m a n y trade associations
which are not chiefly concerned with labour problems, often show
another tendency, because they are (3) " searching constantly for
new methods, new plans, and endeavoring to evolve a system which
will make for industrial peace ". Prominent in the third group are
1
C. E. BONNETT : Employers' Associations in the United States,
New York, Macmillan, 1922, pp. 21-29. Compare the record of strikes and
lock-outs following the War, for instance in " Strikes and Lock-Outs in
the United States, 1916 to 1920 ", 12 Monthly Labor Review 1278-1297,
June 1921.
2
F. D. JONES : Trade Associations
and the Law.
New Yonk,
M'Graw, Hill, 1926, pp. 127-128.
a
E. H. NAYLOR : Trade Associations.
New York, Ronald Press,
1921,
p . 121.
UNITED STATES OF AMERICA
IS
the Associated General Contractors of America, the American Drug
Manufacturers' Association, and the American Mining Congress.
Prominent among the belligerents in the class first mentioned Professor Jones places the National Founders' Association, the National
Metal Trades Association, the National Erectors' Association, and
the National Association of Manufacturers '. Professor Bonnett adds
the United Typothetae of America (open shop division) and the
League for Industrial Rights 2. In addition, associations which are
formed for negotiation may go over to activities which are typical
of belligerent associations when there is a strike on or when a particular labour law is proposed, and belligerent associations have sometimes become negotiatory.
The existence of an employers' association can usually be traced
to the pre-existence of a labour union. Also the character and tactics
of the association are related to the strength of the union. In the
printing industry the local newspaper associations negotiate regularly with the unions, for their papers must appear on time. Book
and job publishers (the United Typothetae) are usually belligerent,
since the time element is not so important 3 .
The opposition of certain employers' associations to the existence
or activity of labour unions takes the form of helping their members
toward the open shop in time of strike and of trying to shape legislation which defines the position of labour unions. Various ones have
sought to establish compulsory arbitration and anti-picketing laws,
to bring unions specifically under the anti-trust laws, to make them
responsible for the acts of their officers and for contempt of injunctions, and/or to make them incorporate in order to bring this about.
They have sought to prevent laws which restrict the use of injunctions, or which legalise the boycott, or prohibit the transporting
of strike-breakers.
These associations have also opposed the aims of labour unions
outside the field of strikes and boycotts by trying to prevent legislation intended to benefit the working class. They have opposed
laws for minimum wages and for maximum hours, on government
•
contract work, on public utilities, and in more nearly private undertakings ; for restricting child labour ; for restricting immigration ;
for restricting scientific management methods and premium payments
1
J O N E S , p p . 128-130.
* See
BONNETT, chapters
» BONNETT, p. 553.
on the several associations.
I6
FREEDOM OF ASSOCIATION
for piece-work. They have opposed national or municipal ownership
of essential industries \
Composition. — Professor Bonnett estimated in 1922 that there
were over 2,000 organisations in the United States which were
" composed of or fostered by employers and which seek to promote
the employers' interests in labor matters ". He lists more than 350 2.
There are no employers' associations which confine themselves
entirely to dealing with employees. All give at least some general
attention to welfare work for their employees, accident prevention, or
trade education, and many of them use their influence with legislative bodies on proposals to alter the industrial code and the law
of associations 3 .
An indication of the scope and size of a few leading employers'
associations is given here as a suggestion of what employers' associations are like in the United States :
The National Industrial Conference Board is probably the largest
of the national federations. It was formed in 1916 as a " Bureau of
Scientific Research, a Clearing House of Information, a Forum for
discussion and the means whereby co-operative action may be
taken on matters that vitali}' affect the industrial development of
the country ". It publishes research reports, which are widely
known, and also does propaganda work 4 . Its reports are not
confined entirely to the subject of industrial relations. It provides
information for its members, sometimes for use in dealing with
legislative proposals. The Board is made up of persons named by
trade associations. It includes twenty-three national associations,
some of which are federations of associations and the manufacturers'
associations of four industrial states, Massachusetts, New York,
Illinois, and Connecticut. The total number of concerns indirectly
affiliated with the Board is about 50,000. They employ seven million
workers 5 .
The National Association of Manufacturers has a direct
1
2
BONNETT, throughout.
The same, pp. 13, 20, 561-567.
' JONES, pp.
134-138.
NATIONAL INDUSTRIAL CONFERENCE BOARD :
Trade Associations, their Economic Significance and Legal Status, New
York 1925, pp. 264-274. BONNETT, pp. 122-125, for the activities of the
metal trades association.
1
5
BONNETT, p.
483.
The same, p. 475.
U N I T E D S T A T E S OF AMERICA
17
membership of several thousand manufacturing concerns. Most of
them are corporations. T h e National Industrial Council is organised
under the leadership of the Association, whose chairman is its president. I t is a federation of about 300 national, state, a n d local
industrial associations to u r g e various measures of industrial legislation and to oppose the enactment of laws framed to re-align t h e
legal privileges of economic classes. T h e Council has an advisory
committee composed of thirty-eight state associations. T h e direct
membership of the National Association of Manufacturers and its
affiliated associations employ between six and seven million workers
and produce from 60 to 70 per cent, of the products manufactured
in the United States. Both the Association and the Council have
membership in the National Industrial Conference Board.
T h e League for Industrial R i g h t s (formerly the American AntiBoycott Association) is a legal-aid organisation open to any employer
or employers' association. I n 1921 it had 2,000 members. I t receives contributions, and levies dues and special assessments not to
exceed $500 at any one time, and its treasury fund is limited to
$100,000. I t s programme is administered by an executive committee
chosen from a board set u p by the members grouped according to
industries '.
A number of employers' associations which are limited to one
industry or region have achieved some p r o m i n e n c e 2 . T h e Stove
F o u n d e r s ' National Defense Association has a membership of some
eighty corporations, firms, and persons, controlling 80 per cent, of
the output of the industry. Membership involves a covenant to
obey the constitution and by-laws of the association, secured b y a
deposit proportioned to the n u m b e r of employees in the plant. T h e
average amount is $2,700 ; it runs as high as $11,000. T h e association is " negotiatory ", but it favours the open shop. I t provides
workers for firms which are struck against or distributes the work
they have contracted to do among its other members.
Another
organisation, the National F o u n d e r s ' Association, has a membership
of 656 concerns with a capitalisation of $4-5 milliards.
They
employ 4-500,000 workers. T h e National Erectors' Association has
a membership of fifty large corporations, which fabricate and erect
75 to 80 per cent, of American structural steel and iron.
The
National Metal Trades Association has a membership of a thousand
1
BONNETT, pp. 449-450.
2
The same, see chapters on the several associations.
Freedom of Association
2
i8
FREEDOM OF ASSOCIATION
concerns. T h e y have 600,000 employees. T h e United Typothetae
of America includes five thousand printing companies. T h e
American Newspaper Publishers' Association is primarily negotiatory.
I t s 550 members include nearly all t h e important newspapers of t h e
United States a n d Canada. T h e closed shop policy is provided for
in its agreements with the printing trade unions, b u t not all of its
members negotiate with t h e unions.
T h r e e local organisations may b e cited as typical of m a n y others
t h r o u g h o u t t h e United States.
T h e Associated Employers of
Indianapolis, Incorporated, h a s 500 members, local manufacturing
and business establishments, employing 40,000 workers. I t believes
in harmonious employer-employee relationships, b u t it is opposed
t o t h e closed shop. I t h a s been active i n opposing labour legislation
in i t s own municipality, in t h e state legislature of I n d i a n a , a n d before
Congress. T h e Building T r a d e Employers' Association of t h e City
of N e w York is both a federation of bodies representing branches of
the industry, a n d an organisation which unites individual firms.
Both it and t h e Building Construction Employers' Association of
Chicago are negotiatory and maintain arbitration boards in connection
with t h e appropriate unions.
Aims. — T h e aims of t h e chief employers' associations a n d their
attitude toward the question of legal freedom for associations of
workers are indicated in their published declarations. T h e constitution of t h e National Association of Manufacturers says :
The general objects and purposes for which the said corporation is
formed, are, the promotion of the industrial interests of the United States,
the fostering of the domestic commerce of the United States, the betterment of the relations between employer and employee, the protection of the
individual liberty and rights of employer and employee, the education of
the public in the principles of individual liberty and ownership of property, the support of legislation in furtherance of those principles and
opposition to legislation in derogation thereof '.
T h e Association first adopted a Declaration of Principles in
1903 a n d has added to it from time t o time. A t present it reads :
1. Fair dealing is the fundamental and basic principle on which relations between employers and employees should rest.
2. The National Association of Manufacturers is not opposed to
organizations of labor as such, but it is unalterably opposed to boycotts,
blacklists, and other illegal acts of interference with the personal liberty
of employer or employee.
1
NATIONAL ASSOCIATION O F MANUFACTURERS : Constitution
Laws, p . 3.
and By-
UNITED STATES OF AMERICA
'9
3. No person should be refused employment or in any way discriminated against on account of membership or non-membership in any
labor organization, and there should be no discriminating against or
interference with any employee who is not a member of a labor organization by members of such organization.
4. With due regard to contracts, it is the right of the employee to
leave his employment whenever he sees fit, and it is the right of the
employer to discharge any employee when he sees fit.
5. Employers must be free to employ their workpeople at wages
mutuali}^ satisfactory, without interference or dictation on the part of
individuals or organizations not directly parties to such contracts.
6. Employers must be unmolested and unhampered in the management of their business, in determining the amount and quality of their
product, and in the use of any methods or systems of pay which are
just and equitable.
7. In the interest of employees and employers of the country, no
limitation should be placed on the opportunities of any person to learn
any trade to which he or she may be adapted.
S. The National Association of Manufacturers disapproves absolutely
of strikes and lockouts, and favors an equitable adjustment of all differences between employers and employees by any amicable method that
will preserve the rights of both parties.
9. Employees have the right to contract for their services in a collective capacity, but any contract that contains a stipulation that
employment should be denied to men not parties to the contract is an
invasion of the constitutional rights of the American working man, is
against public policy, and is in violation of the conspiracy laws. This
Association declares its unalterable hostility to the closed shop and
insists that the door of no industry be closed against.American workmen
because of their membership or non-membership in any labor organization.
10. The National Association of Manufacturers pledges itself to
oppose any and all legislation not in accord with the foregoing declaration '.
On legal questions the declaration of the National Association
of Manufacturers is :
First. We hold that the inherent powers of our courts of equity shall
not be abridged in the issuance of injunctions in labor disputes.
Second. We hold that the power vested in our courts to punish for
contempt of court should not be abridged by the granting of jury trial for
contempt.
Third. We protest against class legislation, whether enacted by State
Legislatures or by Congress, and we assert 'that all forms of class legislation are un-American and detrimental to our common good.
Fourth. We pledge our loyalty to our Judiciary, upon the maintenance
of which, unswerved by passing clamor, rests the perpetuation of our
laws, our institutions, and our society.
Fifth. We favor the further enactment of equitable, beneficial, and
simplified working men's compensation laws.
Sixth. We denounce the subserviency of representatives of the whole
people to the dictation of any class in the matter of legislation.
Seventh. We affirm, in the light of proven facts, that any compromise, toleration, or identification with the leaders of criminal unionism
1
Report of the 31st Annual Convention of the N. A. of M., New York
City, Oct. 5, 6, 7, 1926. Issued from the Secretary's Office, 50 Church
Street, New York City.
20
FREEDOM OF ASSOCIATION
will stultify our liberties and weaken respect for our laws and their just
enforcement.
Eighth. We affirm our approval of the enactment of wise and just
laws, necessary to improve conditions of labor.
Ninth. We affirm that our tested, self-controlled, representative
democracy is adequate, under our constitutional guarantees, to effectuate
the real needs and purposes of our national life.
Tenth. W e pledge ourselves towards the accomplishments of the
spirit and purpose of the foregoing 1 .
T h e constitution of t h e League for Industrial R i g h t s gives t h e
following purposes :
To protect its members and promote the public welfare by proper and
legal resistance to boycotting, picketing, unlawful strikes, and other labor
conspiracies, and by co-operating with the public authorities in the suppression thereof.
To oppose federal and state legislation injurious to the public good,
which would impair the rights and remedies of members in the
employment of labor, or destroy industrial freedom.
To educate the public to a better understanding of the questions
relating to the employment of labor.
To provide for the joint retainer by the members of one or more
attorneys to advise and act
for each member in matters within t h e scope
of the Associations' work 2.
T h e point of view of t h e National Industrial Conference Board
has n o t been directly formulated and published. I t is indicated b y
the Board's definition of t h e American point of view in o n e of its
Research Reports :
In the United States a policy of industrial relations, having its
foundation in a different industrial-economic conception from that prevailing in Europe, is generally the rule. The policy in the United States
favors maximum freedom for the individual to develop, and is generally
opposed to state interference except where it is essential to the public
welfare. It favors as a sound basis of employment the open shop policy,
which, as defined by the Anthracite Coal Strike Commission of 1902-1903,
rests on the ground " that no person shall be refused employment, or in
any way discriminated against, on account of membership or non-membership in an}' labor organization ; and that there shall be no discrimination against, or interference with, any employee who is not a member
of any labor organization by members of such organization ". Moreover,
this policy believes in direct negotiation between employer and employee
in the individual establishment, as against negotiation through third
parties.
This difference in policy, which ma}' be said to constitute the difference in industrial philosophy of the United States and that of other
countries, is of vital significance. To this philosophy may be ascribed
in large measure, the development of our industries to a position of commanding importance and social service, the better general economic status
1
NATIONAL ASSOCIATION O F MANUFACTURERS : Convention
ings 1Ç13, p. 195.
2
LEAGUE FOR INDUSTRIAL R I G H T S : Constitution,
p. 2.
Proceed-
Í I
UNITED STATES OF AMERICA
of the wage earner and the generally higher standard of living in the
United States. It has its roots in the social structure of the United States
as based on the fundamental concepts of our Constitution, and in our
conception of the place and function of the individual and his opportunity
for self-advancement. Individual rather than group or class consciousness may be said to be the distinct heritage of the United States '.
T h e Board's point of view was also indicated b y t h e statement
of position issued by the employers' group in t h e first industrial
Conference in 1919. Five of the 17 representatives of employers
represented t h e Board \ T h e statement was, in part :
3. The Employers' Group regards it as of vital importance that the
employers and employees in each individual establishment should exercise
every effort to settle between themselves all questions arising in the employment relation without the intervention of outsiders. Management and
men should regard this as one of their prime privileges and duties. This
Conference should exert all possible influence in this direction.
4. As a means to this end the Employers' Group approves some form
of shop organization in which representatives of the management and
representatives of the men in the individual establishment, selected in each
case irom their own number, should meet for full and frank discussion of
all phases of the employment relation. There should be no representatives
of either party from the outside except with thé consent of the other party,
for the discussion should be confined to those who know the situation and
who have no outside interest which interferes with or distracts attention
from the single proposition, viz., what is fair and right in the employment
relation in the establishment, to the proper conduct of which all should be
devoted. The representatives of the employees should be freely chosen by
them, but they should not object if the management refuses to meet men
from outside their own number and particularly if chosen from the membership or the agents of a labor union with which the employer has no
relations ; for such outside labor union men cannot be disinterested. They
must necessarily be influenced by their loyalty to their union, their desire
to promote its aspirations and to see it prosper. They may have ulterior
objects in view and cannot work whole heartedly and with singleness of
' purpose for the employees of the individual establishment. They are
likely to bring in an element of antagonism which will be fatal to good
relations between the employees, whom they purport to represent, and the
employer. The employer should be free to exercise his judgment as to
whether he will meet outsiders as representatives of his employees.
T h e National Industrial Conference Board commented that :
In the final analysis, the stand taken by the Employers' Group was
1
NATIONAL
INDUSTRIAL
CONFERENCE
BOARD :
Research
Report
Number 48, The International Labor Organization of the League of Nations (April 1922). National Industrial Conference Board, New York City,
p. 158.
' The last resolution offered by the Labour group was : " The right
of wage-earners to organize without discrimination, to bargain collectively, to be represented by representatives of their own choosing in negotiations and adjustments with employers in respect to wages, hours of
labor, and relations and conditions of employment is recognized. "
22
FREEDOM OF ASSOCIATION
predicated on the maintenance of the open shop, which they regarded as a
vital American principle and which they saw endangered by the adoption
of the type of collective bargaining insisted on by the Labor Group \
ASSOCIATIONS OF
WAGE-EARNERS
Historical. — The cyclical fluctuations of business have been
the most important factor in the existence of trade unions in the
United States. Unionism rose many times during the nineteenth
century — including the phenomenal rises culminating in 1836 and
fifty years later in 1888. Each time it disappeared again and those
who hoped for reform pinned their hope on political action.
Towards the end of the century it appeared that unions were enduring.
An element of permanency was added to the movement when the
unions took up the benefit system to keep their members in time of
depression. This action is representative of the influence of the
American Federation of Labor and its leader, Gompers, who came
to the fore in the eighties. Business unionism came to be the
predominant type, and politics was neglected.
After 1900 unionism was still subject to cyclical changes, but
not so much as before. It seemed that it had come to stay. It
got a good start in the prosperity at the turn of the century and
since then depression seems never to have been quite so ruinous
to it as it was before. The yearly fluctuations in membership
during the last thirty years are indicated in the following table :
MEMBERSHIP
OF AMERICAN LABOUR
UNIONS, 1 8 9 7 - 1 9 2 9 '
Year
American Federation of L a b o r 2
1897
1898
1899
1900
1901
1902
1903
1904
1905
1906
1907
1908
1909
264,825
278,016
349,422
548,321
787,537
1,024,399
1,465,800
1,676,200
1,494,300
1,454,200
1,538,970
1,586,885
1,482,872
1
All Labour
Unions 3
447,000
500,700
6lI,0O0
868,500
I,I24,70O
1,375,900
1,913,900
2,072,700
2,022,300
1,958,700
2,I22,80O
2,130,600
2,047,400
NATIONAL INDUSTRIAL CONFERENCE BOARD : Special Report Number 5, The Vital Issues in the Industrial Conference at Washington, D. C ,
6-23 October iqig (published November 1919).
UNITED STATES OF AMERICA
Year
1910
ICI!
IÇ)ia
I913
1914
1915
1916
1917
1918
1919
1920
192I
1922
1923
1924
1925
1926
1927
1928
1929
n
All Labour Unions 3
2,184,200
2,382,800
2,483,500
2,753.40°
2,716,900
2,607,700
2,808,000
3,104,600
3,508,400
4,169,100
5,110,800
4,815,000
4,059,400
3,747,200
3,746,600
3,817,900
3,900,500
3,903,800
American Federation of Labor 2
1,562,112
1,761,835
1.770,145
1,996,004
2,020,671
1.946,347
2,072,702
2,371.434
2,726,478
3,260,068
4,078,740
3,906,528
3.195,635
2,926,468
2.865,799
2,877,297
2,803,966
2,812,526
2,896,063
2,933,545
1
2
United States and Canada.
Paid-up membership reported for the purpose of paying dues to the American Federation of Labor and voting in its conventions. In 1929, for instance, " A survey of the
national and international organizations and the unions directly affiliated with the American
Federation of Labor indicated that because of strikes or unemployment there were at least
500,000 members for whom per capita tax was not paid to the American Federation of
Labor. Adding this number to the 2,933,545 paid-up membership will give a grand total
of 3,433,545 members. " (Report of the Executive Council of the American Federation of
Labor
to the 4gth Annual Convention, Toronto, Ont., Canada, 4 Oct. 192c, p. 7.)
3
Recent Economic Changes in the United States. Report of the Committee on Recent
Economic Changes, 1929, p. 480.
The
of
the
feet.
boom
in
European
The
American
War
tightness
in
of
trade
1914
the
that
helped
labour
followed
many
market
the
unions
was
outbreak
to
still
their
further
accentuated by t h e U n i t e d S t a t e s e n t e r i n g t h e W a r in 1917.
prosperity continued even after
and
before
the depression b e g a n in
passed t h e five million m a r k .
and
has
1927.
the
been
nearly
The
t h e armistice w a s signed i n 1918,
1920 u n i o n
membership
had
After t h a t it s a n k for several y e a r s
stationary
during
the
prosperity
of
1923-
T h e years since t h e W a r h a v e b e e n m a r k e d b y t h e rise of
" dependent "
company
union
and
by
the
tendency
of
the
" i n d e p e n d e n t " u n i o n s t o e x t e n d collective b a r g a i n i n g t o positive
co-operation w i t h m a n a g e m e n t in p r o b l e m s of p r o d u c t i o n
Types.
— Professor
Hoxie
\
h a s divided t h e labour u n i o n s of
1
For a detailed history of unionism the reader may be referred to
COMMONS and Associates : History of Labour in the United States, which
takes the story to 1897 ; or to PERLMAN : History of Trade
Unionism,
which takes it to about 1922.
24
FREEDOM OF ASSOCIATION
the United States into functional types '. Business
unionism
" aims chiefly a t more, here a n d now, for the organized workers
of the craft or industry, in terms mainly of higher wages ".
Uplift
unionism
" aspires chiefly to elevate the moral, intellectual, and
social life of the worker, to improve the conditions under which
h e works, to raise his material standards of living, give him a
sense of personal worth and dignity, secure for him the leisure of
culture, and insure him and his family against the loss of a decent
livelihood by reason of unemployment, accident, disease, or old
age ". Revolutionary
unionism " asserts the complete h a r m o n y of
interests of all wage workers as against the representatives of the
employing class, and seeks to unite the former, skilled and unskilled
together, into one homogeneous fighting organization ". I t has two
sub-types, ( i ) socialistic unionism and (2) quasi-anarchistic
unionism.
T h e r e is also predatory unionism,
which is characterised b y " the
ruthless pursuit of the t h i n g in h a n d b y whatever means seem most
appropriate at the time, regardless of ethical and legal codes or effect
upon those outside its own membership.". I t has two sub-types :
(1) Hold-up unionism is generally " boss-ridden and corrupt, t h e
membership for the most part being content to follow blindly the
instructions of the leaders so long as they ' deliver the goods '.
F r e q u e n t l y it enters with the employers of the group into a doublesided monopoly intended to squeeze the consuming public ".
(2) Guerilla unionism " operates always against its employers, never
in combination with them, and it cannot be bought off. I t is secret,
violent, and ruthless, seemingly because it despairs of attaining what
it considers t o be legitimate ends of business, uplift, or revolutionary
methods ". Dependent unionism either (1) " i s dependent wholly
or in large part upon other unions or upon the employers " or else (2)
" could not exist except for its labels ".
T h e limitations of this functional classification are indicated by
the fact that it is difficult to fit any one union under any one of the
headings. A n y union is a complex of a number of the tendencies
named by Professor H o x i e . F o r instance, there is the type of union
whose methods are chiefly those of business unionism but which
plans gradually to acquire greater control over its industry 2 . Also,
since this classification was made there has been a considerable
1 R. F. H O X I E : Trade Unionism in the United States (1921),
pp. 44-52.
2
BUDISH and SOUXE : The New Unionism (1920). Harcourt, Brace
and Co., New York City.
UNITED STATES OF AMERICA
25
growth in union-management co-operation, the so-called " B. and
O. Plan " put into effect on the Baltimore and Ohio Railway being
the most notable example.
Professor Hoxie's divisions are not legal divisions, but there are
similar legal categories which are of significance. The legality of
a union or of a strike depends upon its motives. An extreme case
is the criminal syndicalism laws under which it is a crime to belong
to the I.W.W. (the Industrial Workers of the World). The
I.W.W. is the chief revolutionary union in the United States.
The state of New York has recently taken action against the practices
of a " hold-up " union in the building trades, which is the industry
that has produced most " hold-up " unions. New York uncovered
a system of extortion. The chief conspirator, Brindell, was sent to
prison. The Supreme Court of the United States has held that a
state has the power to make it a felony to call a strike for such a
purpose as influencing the employer to pay back-wages which the
union claims are due to its members ; on the ground that the courts
are open for redress (Dorchy v. U.S.). Business unions frequently
help their members to get back-pay that is due to them.
Composition. — Most local unions in the United States have
charters from national organisations, which are often spoken of as
the " international unions ", since they take in workers in Canada
and, sometimes, in Mexico. Many unions have district organisations
which take in the locals of one state or of some other geographical
or industrial division. The American Federation of Labor charters
national unions, state federations of labour, and city centrals
(federations of locals in one city). There are also some locals which
have charters issued directly by the American Federation of Labor
since the Federation has no national union for them to belong to. In
small towns such a local may unite members of various trades ; it
is then called a " federal local ".
There are about four and a half million unionists in the United
States. Dr. Wolman has estimated that wage-earners in the United
States (excluding agriculture) were 21 per cent, organised in the
census year 1920. This was also the year of largest union membership. A similar estimate for iaio indicated that wage-earners had
been about 11 per cent, organised *.
Most of the unionists in the United States belong to unions
1
WOLMAN : The Growth of American Trade Unions 1X80-192$ (1924).
National Bureau of Economic Research, New York City.
26
FREEDOM OF ASSOCIATION
affiliated with t h e American Federation of Labor.
T h e r e were
3,384,000 of t h e m in 1926. T h e chief unions outside t h e Federation
are t h e big four railroad brotherhoods and t h e Amalgamated Clothing
Workers
( m e n ' s ready-made clothing).
Together these h a d
585,000 members in 1926. A separate group is t h e I . W . W . or
Industrial W o r k e r s of t h e World, w h o class as a revolutionary union.
T h e y h a d 30,000 members. Altogether outside t h e American Federation of L,abor there were 49 national unions and 1,060,000 union
members \
T h e American Federation of Labor (1926) includes 107 national
unions, m a n y of which extend to Canada. T h e s e take i n 29,417 local
unions. T h e r e are also 380 local unions affiliated directly with t h e
Federation.
T h e local unions are also divided among 49 state
federations and also among 833 city federations. P a r t of t h e
F e d e r a t i o n ' s membership belongs to four sub-federations called t h e
Building T r a d e s Department, t h e Metal T r a d e s Department, t h e
Railway Employees' Department, a n d t h e Union Label T r a d e s
Department. These departments have 769 local divisions 2 .
Aims. — T h e objectives of t h e Federation typify t h e objectives
of its affiliated unions. I t h a s sought legislation against child labour,
sweat-shops, prison-made goods ; for a federal department of labour,
w o r k m e n ' s compensation, restricted immigration,
free
public
employment agencies. I t relies chiefly on collective bargaining ;
it opposes compulsory arbitration and minimum wages set b y law,
except for women a n d children ; it campaigns for shorter working
hours, b u t it is against their being established by statute. I n t h e
field of legal freedom of association it h a s opposed t h e liability of
labour unions under anti-trust acts, t h e use of injunctions in labour
disputes, a n d t h e anti-picketing ordinances of various c i t i e s 3 . I t is
its interest i n this movement for greater freedom for association
which h a s been t h e chief factor in bringing t h e Federation to- m i x
in politics to t h e limited extent t h a t it has done so 4 .
1
U N I T E D STATES BUREAU of LABOR STATISTICS : Bulletin
No.
420,
Handbook of American Trade Unions. 23 Monthly Labor Review 224,
August 1926.
2
Report of the Executive Council of the American Federation of
Labor to the 46th Annual Convention, 1Ç26, p. 9.
' AMERICAN FEDERATION OP LABOR : History,
Encyclopedia,
and
Reference Book, igig, pp. 9, 22-24, 27-28, 149-154, 205-206, 219, 225; 241,
292, 408 et seq.
4
E. E. W I T T E : " Value of Injunctions in Labor Disputes ", 32 Journal of Political Economy 335, 349, June 1924.
UNITED STATES OF AMERICA
2J .
The American Federation of Labour itself is federated on two different
principles, reflecting the political federation of the States in the Union.
This came about through the experiences of the Federation of Organised
Trades and Labour Unions and the Knights of Labour. The several state
Federations of "Labour (forty-nine in number, including that of the District
of Columbia) are exact duplicates of the British Trade Union Congress,
and are the heirs of the Federation of Organised Trades' and Labour
Unions, which had itself been .modelled on the British Trade Union Congress. Their activity is solely legislative. But the American Federation
of Labour is an almost purely economic organisation, formed for the
purpose of consolidating the labour unions, abolishing " dual unionism " ,
deciding jurisdictional disputes, employing organisers, and, incidentally,
iñ later years, entering the legislative field only in so far as necessary to
resist the anti-union decisions of the federal courts. This double character
of the American labour movement is peculiar, and not always understood.
It reflects the political organisation of the United States, under which
practically all the labour legislation is enacted by the state legislatures,
and almost no labour legislation is enacted by the Federal Congress. I t is
the federal courts, and not the federal Congress, that have forced the
national Federation of Labour, within the past ten years, into the field of
Congressional legislation in defence of the right to organise and bargain
collectively '.
T h e railroad shop crafts or repair workers, affiliated with t h e
Federation, have since 1923 been working o u t a plan of unionmanagement co-operation with several railroads in the United States
and Canada. T h e executive council of t h e Federation reported to
its convention in 1925 that while t h e first function of labour unions
was collective bargaining, it w a s important to co-operate with t h e
management and find better methods of production 2 .
T h e objectives of t h e large independent unions are similar to
the objectives of t h e Federation. T h e independent Amalgamated
Clothing W o r k e r s a n d t h e independent Brotherhood of Locomotive
Engineers were t h e pioneers in labour b a n k i n g . T h e independents
also emphasise collective bargaining. T h e Order of Railway
Conductors resolved against " legislation upon a n y matter that is
recognized as a proper subject of private contract between t h e railway companies and t h e various labor organizations " and agamst
compulsory arbitration \ T h e Amalgamated Clothing Workers h a s
practised co-operation with t h e employers for greater efficiency.
1
John R. COMMONS : " Tendencies in Trade Union Development in
the United States " (June 1922), 5 International Labour Review 855, 867.
* AMERICAN FEDERATION O F LABOR : 1925 Convention,
p p . 35-36.
See also Proceedings, 1926, p. 51.
* O R D E R O F RAILWAY CONDUCTORS O F AMERICA : Proceedings
of the
grand division, Cleveland, 1Ç22, p p . 323-324 ; Constitution, etc., 1922,
p. 175. The proceedings of the other three train and engine service
brotherhoods are secret.
28
FREEDOM OF ASSOCIATION-
T h e Federation a n d t h e railroad brotherhoods a r e antisocialistic \ T h e y favour government ownership of public utilities.
T h e Locomotive
Engineers'
Journal h a s recently published a series
of articles criticising the capitalist system 2 . None of t h e unions
engage in direct political action. T h e y endorse individual candidates.
T h e Federation speaks of this as " rewarding its friends a n d
defeating its enemies ". T h e Federation and t h e Brotherhoods maintain counsel and staffs at t h e legislative headquarters of t h e Federal
Government and of various state governments, w h o present
their views on proposals which affect their interests either in t h e
m a t t e r of working conditions or i n t h e matter of legal freedom of
a c t i o n 3 . T h e Amalgamated Clothing W o r k e r s include m a n y
Socialist and many Communist members. T h i s also is true of other
needle trades unions, affiliated with t h e Federation, whose industry
centres in N e w York City. T h e direct political activity of these
g r o u p s is directed toward capturing n o t governmental offices, b u t
union offices.
T h e I . W . W . are syndicalists. T h e y have a strong direct-action
faction. T h e y emphasise sabotage in their economic tactics. T h e y
make no attempt to influence legislation. T h e y are t h e g r o u p to
w h o m t h e criminal-syndicalism a n d -anarchism statutes apply. T h e
leading study of t h e I . W . W . says t h a t : " T h e negative or destructive
items in t h e I . W . W . program are deliberately misconstrued " (by
1
AMERICAN FEDERATION
OF LABOR : History,
Encyclopedia,
and
Reference Book, 1919, pp. 37 et seq. ; Proceedings of the 1Ç26 Convention,
p. 263.
2
David E. PEDDIE : four articles in the Locomotive Engineers' Journal (monthly) for 1926 : " The Breakdown of Our Economic System, "
Sept., p . 661 ; " Economics and Democracy, " Oct., p . 734, Nov., p . 823,
D e c , p . 897.
8
There are provisions for the creation and instruction of " legislative
departments " and " national representatives " in the Constitution of the
Brotherhood of Locomotive Firemen and Enginemen, 1922, Article 14,
pp. 234-248 ; in the Constitution of the Brotherhood of Railway
Trainmen,
1916, pp. 81 et seq. ; in the Constitution of the Order of Railway Conductors of America, 1922, Article 23, p . 30 ; in the Constitution of the Brotherhood of Locomotive Engineers, 1918, pp. 85 et seq. Successful
pleadings of the American Federation of Labor before legislative bodies
are reported in AMERICAN FEDERATION O F LABOR : History,
Encyclo-
pedia, and Reference Book, IÇIÇ, pp. 330-333 (federal laws) ; the same,
1924, p . 156 (state laws) ; Proceedings of the 1Ç26 Convention, p. 64 et seq.
However, 99 per cent, of the work done by labour in Congress has been
to defeat pernicious legislation.
AMERICAN FEDERATION
Proceedings of the 42nd Annual Convention,
1Ç22, pp. 115.
OF LABOR :
29
UNITED STATES OF AMERICA
their opponents) " a n d then stretched out a n d made to constitute
the whole of I . W . W . - i s m . I n reality they a r e only a minor p a r t of
the creed. "
" E v e n what t h e Wobblies " ( I . W . W . s ) " say about
themselves must be taken with a certain a m o u n t of salt. " " S o far
their own members do not understand how relatively unimportant
is their much-talked-of sabotage method. T h e y have challenged t h e
autocratic method, b u t they have done it very crudely a n d with a
weird displacement of emphasis. T h e y whisper it in a footnote, as
it were, to their strident blackface statements about method. " " T h e
most important item i n t h e affirmative part of t h e I . W . W . program
is the demand that some of our democracy — some of our representative government — be extended from political into economic life, " J
I n their attitude o n legal questions, all unions unite i n opposing
the use of injunctions in labour disputes. T h e American Federation
of Labor agitates actively for t h e passing' of statutes to limit their
use. T h e objection to t h e restrictions exemplified b y injunctions is
sometimes p u t on t h e ground of t h e value of free speech. T h e
American Federation of Labor in its 1913 convention declared:
Invasions of the rights of a free people arouse just resentment . . .
There have been in the recent past tendencies to invade the domain of
free speech that have stirred those who have concern for the public
welfare . . . The toilers of America have been aroused to this invasion of freedom because they, better than 2all others, have been aware of
the entering wedge to freedom's undoing .
I n t h e 1911 convention it resolved :
That the common law practice shall (i.e. ought to) apply to wage
earners as well as others ; that no injunction shall be issued where there
is another remedy provided by law. If through the use of the equity
power vested in courts our rights as workers to quit at will and to induce
others to quit with us can be taken away, then the peaceable evolution
toward industrial democracy is cut off and the workers will be compelled
to look to more revolutionary measures for redress of grievances 3 .
I n 1914 t h e federal Clayton A c t w a s passed, largely because of
the efforts of t h e Federation. I t laid some restrictions upon t h e
equity powers of t h e federal courts. T h e Federation spoke of i t as
1
P. F . BRISSENDEN : The I. W. W. : a Study of American
Syndicalism. Xew York City Columbia University, 1919, pp. 9, 12, 13.
' AMERICAN F E D E R A T I O N O F LABOR : History,
Reference Book, 1919, p p . 27-28.
3
The same, p. 18.
Encyclopedia,
and
FREEDOM OF ASSOCIATION
3°
L a b o u r ' s Magna Charta '. Some t h i n k it h a d a n exaggerated
conception of the value and applicability of the restrictions of the
Act 2. I t has continued to seek state and federal legislation to limit
the use of injunctions.
T h e 1919 convention of the Federation recommended that
organised labour " shall disregard the injunction decrees of courts
on the ground that such decrees violate the rights guaranteed under
the constitution " \
T h e Central Labor Council of Los Angeles
(California) soon afterwards unanimously approved the following
motion :
Resolved, that the Central Labor Council henceforth shall not expend
one cent in any injunction proceeding that may be brought against labor,
but on the contrary, will proceed along lines advocated by the American
Federation of Labor and we recommend that all affiliated unions pursue
the. same course 4 .
I n October 1919 the President's first Industrial Conference met.
T h e labour representatives withdrew w h e n its resolution in favour
of collective bargaining was voted down by a majority of the
employers' representatives.
Representatives of national unions
affiliated with the American Federation of Labor, of the railroad
brotherhoods, and of farmers' organisations met separately in
December. One of the actions of this conference was to denounce
mandatory injunctions \
T h e 1926 convention of the American Federation of Labor
adopted unanimously the following report of its committee on
resolutions:
The way equity courts have used the injunctions in industrial
disputes has created in the minds of wage earners a general distrust of our
courts. Injunctive writs in labor disputes have by no means ceased. To
the contrary they have increased. Hence we welcome the report of the
Executive Council that draft proposals will be introduced in the next
session of Congress to limit the equity powers of Federal courts and to free
1
See 21 American Fcderationist 957, " The Charter of Industrial Free
dom ", by Samuel GOMPERS.
2
MASON : Organized Labor and the Law (1926), pp. 168-217.
American Federationist, 1919, p. 712.
4
Justice, weekly journal of the International Ladies' Garment
Workers, 30 Aug. 19*9, p. 7.
* American Federationist, 1920, p. 33. The conference issued a pamphlet, Labor, its Grievances, Protests, and Demands.
It is reprinted in
LAUCK, W. JETT, and Claude S. WATTS ; The Industrial Code (1922), Funk
and Wagnalls, New York City, Appendix V, pp. 526-535.
3
UNITED STATES OF AMERICA
3'
organized labor from the conspiracy interpretation which has hampered
unions in the performance of normal functions
The problem created by the issuing of injunctions in connection with
industrial disputes is becoming more serious. Government by law and
duly constituted authorities has in many instances been supplanted by
government by injunction, government enforced without statutory enactment, government under which men are held guilty of an alleged offense
without indictment by a grand jury and the rendering of a verdict by a
jury. The injunction process1 has usurped the function of government by
law in other fields as well . Partisans of certain laws, believing that
the equity court in which no jury can function would more speedily
enforce the law, prevail upon supine or partisan judges to issue injunctions
restraining individuals and groups from violating the law. By this
method and process there is set aside all established practices in our criminal courts, and persons accused are denied the constitutionally and
legally created protection guaranteed to all those accused of violation
of law.
These two forms of government cannot function at the same time.
Our form of government is one of law, of laws enacted under the authority
and guarantees of the Federal constitution, and administered by public
officials whose duties and authority are clearly and definitely defined and
limited.
Equity courts are without authority, constitutional or statutory to
interfere with or infringe upon government by law. That they are progressively doing so has created one of the nation's gravest internal
problems.
Government by injunction must cease, if government by law is to
function unchallenged.
Your committee recommends that we approve the course of the Executive Council in these matters as well as in their recommendation that
Labor should seek to secure state legislation prohibiting injunctions in
industrial disputes.
We recommend endorsement of the report of the Executive Council
on this subject 2 .
These sentiments are supported b y independent unions.
magazine of t h e locomotive engineers h a d stated just before :
The
There is no statute or warrant in either federal or state constitutions
authorizing the abuse of the judicial power b3' the issuance of injunctions
in labor disputes. It is clearly and usurped and tyrannic power which
free men cannot endure a .
T h e American Federation of L a b o r is occupied with t h e
endeavour to have limits p u t upon t h e federal courts. I t apparently
1
That is, in the enforcing of the prohibition of the sale of intoxicants.
2
AMERICAN FEDERATION O F LABOR : Report
of the Proceedings of
the Forty-Sixth Annual Convention held at Detroit, Michigan, October 4th
to 14th, inclusive, 1926, pp. 307-316.
3
60 Locomotive
Engineers'
Journal 725, Oct. 1926. Compare
Advance, weekty of the Independent Amalgamated Clothing Workers, ia
June-Aug. 1925, when its pickets were enjoined in New York City, but
not in Chicago, since Illinois had recently passed an anti-injunction law ;
specifically the issue of 26 June 1925, p. 5.
FREEDOM OF ASSOCIATION
32
considers them more important t h a n the state courts. I n any case,
they can be reached t h r o u g h one legislature, while t h e state courts
are subject to 48 legislatures. T h e N e w York State Federation of
Labor brought anti-injunction bills 1 before the 1927 sitting of the
state legislature. I n some states the jurisdiction of the courts can
be modified by act of legislature ; in other states only by a m e n d i n g
the state constitutions. T h e Federation is seeking to limit injunctions by the federal courts b y removing labour cases from their
jurisdiction altogether.
Company unions. — Company unions are associations of workers
fostered by the companies. T h e y have grown rapidly in n u m b e r .
Leaving out of consideration those which are only benefit associations, there is a large group which are often called " works
councils ". T h e usual form of organisation is simply a committee
which meets with the management.
T h e National Industrial Conference Board (employers) has made
three surveys of works councils in the United States 2 . T h e y show
t h a t there were only twelve organised before 1917. D u r i n g
the W a r (1917-1918) the U n i t e d States was m u c h influenced b y t h e
example of the British W h i t l e y Councils, and 120 works councils
were established in 1917-1918. T h e survey in 1919 showed that there
were 225 active. T h e y covered 391,400 workers. By 1922 many had
been abandoned, but the n u m b e r had increased to 725. T h e y covered
690,000 workers. I n 1924 there were 814 active. T h e y covered
Ï » 1 77,037 workers. T h e following table shows the years in which
the works council idea was adopted by the 212 companies which had
councils in 1924 :
1
New York state legislature, Assembly, 1927 : Bill No. 140 (Introductory No. 140), introduced by Mr. Coughlin, exempts industrial agreements and disputes from conspiracy and other criminal laws (except violence and threats of violence) and from injunctions. The same provisions
are in Bill 303 (Introductory 299), introduced by Mr. Hackenburg. Bill
519 (Int. 512) introduced by Mr. Hamil, provides among other things for
decision by a jury whether an injunction is needed in an industrial
dispute. To keep this from delaying decision too long it provides that
jurymen may be summoned without notice. It also provides for jury trial
in various contempt cases.
2
The latest one is : The Growth of Works Councils in the United
States, Special Report ¡2 (1925). National Industrial Conference Board,
New York Citv.
UNITED STATES OF AMERICA
Year in which works councils
were taken up
No date given
Before 1917
1917
1918
1919
1920
1921
1922
1923
1924
33
Number of companies
8
7
11
33
69
27
*5
34
7
1
Total in 1924
212
T h e 35 companies which had abandoned their works councils
gave various reasons for doing it. Twelve gave depression as t h e
reason. T h i s usually refers to the change in industrial relations in
1921. Twelve others gave lack of interest as the reason. Some of
them found that there was enough harmony in industrial relations
without a works council.
Five gave friction as the reason.
Sometimes there was disagreement over the plan within the
management, sometimes there were radical employee representatives,
and the like. T h r e e abandoned the plan because the workers were
discontented when, in a year of depression, there was a falling off
in their bonus or their share in the profits, which h a d been part of
the works council plan. T w o abandoned it because of domination
by the management representative, and one because n o t h i n g was
accomplished.
T h e change from 725 active works councils in 1922 to 814 in
1924 came about through the establishing of 283 new councils. All
b u t 89 of them were offset b y the abandoning of 194. T h e 814
active in 1924 represented 212 companies and 1,177,037 workers.
T h e number of male workers was given at 612,799, and female at
250,155 ; no sex w a s given for 314,083.
I n 1924 there were eleven companies out of 212 which had plants
each of which employed 15,000 workers or more. T h e s e eleven
covered 711,066 out of the 1,177,037 workers. T h e largest group of
companies was a group of 81 which had establishments each of
which employed 1,000-5,000 workers.
Of the 814 councils 210 were in the metal trades, 160 in the
lumber industry, i n in printing, and 333 in other industries. Since
the 1922 shop crafts strike, company unions have been prominent
on the railroads, especially among shop workers and maintenance of
way workers.
I n 1924 there were 302 councils which could not be assigned
Freedom of Association
34
FREEDOM OF ASSOCIATION
to any one state. The 512 which could be assigned to states were
divided as follows :
Massachusetts
New York
Washington
Illinois
Ohio
Pennsylvania
Connecticut
California
Others
105
60
45
39
30
30
28
27
148
It is clear that the bulk of them are in the industrialised northeast.
It is probable that the number of company unions has not
increased greatly since 1924, although the movement seems to have
made considerably progress on railroads and in electric light and
power plants.
CHAPTER II
THE LEGAL STATUS OF TRADE UNIONS
The American law of labour unions has grown up within a legal
system somewhat peculiar to the United States. It is distinguished
by the practice of granting to employing companies court orders or
injunctions against undesirable acts threatened by unions. The
powers of the courts in this field are subject to only superficial modification by statute, since the United States adheres to the principle
of judicial supremacy. The nation-wide character of modern
industry, among other reasons, has thrown many of the cases in to the
federal courts, to which full equity powers are explicitly granted by
statute and which administer a severe anti-trust law which is
applicable to trade unions.
The organisation of unions is conducted freely except in so far
as it is hindered by the blacklist, individual contracts, and other
devices of employing companies. Associations advocating the use of
force are taboo. When a union is organised and has to come to court,
it is held responsible for many of the acts of its members, and individual members may in turn be liable for wrongful activities authorised
by their officers. The responsibility of the union as such is
established at law by treating it as an informal corporation. Disputes
between a union and its members are usually to be settled within the
organisation. But if thé member's property rights are in danger
the courts will intervene.
§ 1. — Relevant Legal Institutions
INJUNCTIVE R E L I E F
Procedure. — The law of associations arises almost entirely out
of injunction cases, which are handled by courts of equity. A
court of equity has power to grant orders which are binding upon
persons, to prevent the wrong continuing.
36
FREEDOM OF ASSOCIATION
An ordinary court of law can function only after a wrong has
been done ; in civil cases it can grant judgments which are binding
only upon property.
The traditional policy of equity has been to take jurisdiction
only in cases where the practice of the law courts would lead to
manifest injustice. An equity court would accept a complainant's
case if it could enforce his rights better than a court of law could.
Or sometimes it went so far as to recognise new, equitable rights,
which precedent kept the law courts from recognising.
The request of an employing company for relief in a court of
equity is based on the procedural advantages. It claims a legal right
against the union, but asserts that a court of law could not enforce
it adequately. For instance, the affidavit of the president of the
company may claim that it is being injured in the conduct of ita
business by a strike in which picketing is being used so effectively
that its employees and perhaps its customers are being frightened
away from dealing with it. This implies that the company has a
right to damages,, for which it should apply to a court of law.
But the affidavit will add that the injury threatens to continue.
This is the first step in making out the company's case for an
injunction. The complaint goes on to say that the remedy at law
is not sufficient to make up to the company the harm which will be
done to its business if the injury continues, and that therefore the
court should issue an injunction to prevent its continuing. It gives
as the reason for this that the injury would be irreparable, since
the amount of the damage which is being done to the company's
goodwill is impossible for a jury to estimate. If the company is
suing individual members of the labour union, rather than the
organisation, it adds that the remedy at law is inadequate because
the wrong-doers are so many that damages could not be obtained
without bringing a large number of suits and crowding the docket and
because the defendants are insolvent and judgments against them
would be fruitless. It asks for damages for the injury already
committed and an injunction to prevent further injury.
The court will fix a date for a hearing and will usually issue
a temporary restraining order (in some jurisdictions a temporary
injunction) to preserve the status quo meanwhile. This order usually
forbids persons from intimidating employees or customers. It preserves
the status quo before the picketing began, not the status quo before
the order was issued ; unless the order is issued before the picketing
has gotten under way. If the affidavit indicates that the strike is a
UNITED STATES OF AMERICA
37
sympathetic strike or a strike for t h e closed shop, t h e injunction
may forbid all strike activities, including peaceful persuasion of
employees or customers that they cease to deal with the company.
T h e writ of injunction is usually against the labour union as an
association t h r o u g h its officers, against its officers and members
individually, and against all persons aiding them. T h e writ must be
served on persons who threaten to violate it. T h i s is done more
informally than is the service of other writs. Printed copies of
the injunction are posted in conspicuous places or on the door of
the plant. T h e y are distributed to the pickets. T h e pickets may
not disregard the paper, since they know that an injunction is
likely to be issued. Even if they have not seen it they are bound
by its terms if they know of its existence. T h i s type of injunction,
which applies to persons not specifically named in t h e complaint,
is called a " blanket injunction ".
If the persons w h o have notice of the existence of the injunction
continue to do the forbidden acts, they may be arrested for contempt
of court and tried by the judge w h o issued the injunction.
This
is a cumbersome process. A warrant m u s t be served on each
offender after it has been secured on affidavit by the employer and
after he lias identified the offending picket or other person. T h i s
is facilitated where the employer can assert that he does not know the
names of the pickets but can identify t h e m , and the court issues
John Doe " (blank) writs. Another hindrance to arrests for
contempt is that the public prosecutors are not active in carrying
through those cases and the employer must pay his lawyer to take
care of them '. As a result arrests of pickets are less often for
contempt than on charges of misdemeanour. Arrests for misdemeanors
sometimes become more frequent after an injunction has been issued,
since it puts a general stamp of illegitimacy upon the strike 2 .
If there are prosecutions for contempt, the punishment is fine
or imprisonment or both, in the discretion of the judge. Guilt is
not altered if the injunction is dissolved after the act of contempt.
Since most injunctions are prohibitory and not mandatory, the fine
or imprisonment is a punishment in order to vindicate the autho-
1
E. E. W I T T E : " Value of Injunctions in Labor Disputes ", 32
Journal of Political Economy 335, 337 (June 1924).
2
Compare Pope Motor Car Company v. Keegan (1906), 150 Federal
14S, 151, where the court named in the injunction only those shown to be
guilty of violence, in order not to put a stigma upon the others.
3«
FREEDOM OF ASSOCIATION
rity of the court '. It is therefore called p u n i s h m e n t for criminal
contempt.
T h e wrong involved is legally a civil wrong against
the complainant (though it is sometimes an act forbidden by the
criminal code, in addition), but the trial is a sort of criminal trial,
although it is usually without a j u r y and other traditional favours
g r a n t e d to defendants in criminal trials. E q u i t y courts can also
imprison for civil contempt.
T h i s imprisonment is pressure to cause
t h e offender to do a positive act in compliance with the court's
order for the relief of the complainant. T h e typical (though unusual)
case in which that pressure would be used is the case of an injunction
commanding the officers of a labour union to call off an illegal
strike.
W h e n a hearing has been held at which the defendants are
represented the court may dissolve its order or continue it, either
with the same terms or with more sweeping or more restricted terms.
Sometimes this second order is still a temporary injunction, and
another, more formal hearing is held later to decide whether the
injunction should be made permanent. If an injunction is made
p e r m a n e n t it continues indefinitely. Often t h e strike is over before
the final hearing has been held. A t most one out of every five
labour injunctions is made permanent. If a settlement of the strike
is arranged between the labour union and the company or employers'
association, often all legal proceedings are dropped : the final hearing
is not held, claims to damages are withdrawn, and the pending trials
of arrested pickets are abandoned, since the workers are needed in
the shops. If no settlement has been arranged, both sides may let
the matter go, and the temporary injunction continues indefinitely.
If the company asks to have the injunction made permanent and
the u n i o n ' s lawyer is present, he can often get the terms of the
order softened in its final form.
A higher court will not interfere to prevent a lower court issuing
an injunction where the lower court clearly has jurisdiction over the
matter in question \
Appeals are usually governed by statutes.
W h e r e they are not, one may usually not appeal until the injunction
1
Ordinary contempt of court, in the presence of the court, is known
as " direct contempt ". Disobeying a decree of a court of equity is
" indirect contempt ". Statutes sometimes require trial by jury in cases
of " indirect contempt " when the offending act is also a crime. A court
has power to use a jury in any case of contempt if it wishes to.
2
Sfoie v. Judge, 29 Louisiana Annual 360.
UNITED STATES OF AMERICA
39
has been made permanent \ Higher courts are reluctant to dissolve
an injunction. T h e y require a definite showing t h a t t h e lower court
has abused its discretion *.
Illustrations.
— A recent prominent injunction which may be
considered as fairly typical was the injunction in t h e strike of 40,000
workers in the w o m e n ' s ready-made clothing industry in New York
City. T o avert a strike in 1924 the governor of N e w York State
appointed an Advisory Commission to recommend a plan of settlement
for the industry. T h i s Commission made its final recommendations in
the spring of 1926. T h e y included an increase of wages and provisions
for regulating contracting shops, which t h e union w a n t e d . T h e y did
not include the u n i o n ' s demands that the designers should be
union members ; that each company guarantee 36 weeks of work
in a year, since t h e industry is highly seasonal ; t h a t h o u r s be reduced
from 44 hours to 40. T h e r e was an employers' association of
contractors, or sub-manufacturers ; an association of jobbers, who
contracted out work to the sub-manufacturers ; a n d t h e Industrial
Council of the Cloak, Suit and Skirt Manufacturers, Incorporated,
the association of " inside manufacturers ", who maintained comparatively large factories and rarely contracted out work.
The
Industrial Council, which secured the injunction in question, accepted
the recommendations of the Governor's Commission. T h e N e w York
joint board of the International Ladies' G a r m e n t W o r k e r s did not
accept t h e m . T h e strike began 1 July 1926. T h e r e was considerable
disorder and violence. On several occasions h u n d r e d s of the pickets
were arrested a n d were fined by t h e city courts 3 .
T h e Industrial Council went before a lower state court and
submitted affidavits to show that there had been riotous demonstrations and threats of violence ; t h a t m e n were watched b y picket
lines and followed to their homes and set upon and beaten w i t h
clubs, iron pipes, hammer handles and automobile tools : that
h u n d r e d s of employees sustained broken bones in these attacks ; t h a t
the attacks were made by hired gangsters ; that employees were
taken by force to the various headquarters of the union and subjected
1
United States Heater Company v. Iron Molders Union, 129 Michigan
354, or 88 Northwestern 889 ; High, Injunctions, 4th edition, section
1693.
1
Bonaud.v.
Genesi, 42 Georgia 639; Workingmen's
Amalgamated
Council v. United States, 57 Federal 85, 6 Circuit Court of Appeals 258.
3
Opinion of Mr. Justice Ingraham in Industrial Council v. Sigman ;
New York Law Journal, 30 Sept. 1926.
40
FREEDOM OF ASSOCIATION
to inquisitions and severe beatings with blackjacks, as appeared
from the records of the courts of the city in more t h a n a hundred
cases. T h e Industrial Council said that the criminal courts were
not active enough to prevent the violence t h a t was going on. I t
pointed out that it had accepted the recommendation of the
Governor's Commission and t h a t it represented t h e " inside manufacturers ", w h o were well k n o w n to have t h e highest standards of
working conditions in the industry. I t said that the strike was called
by the left wing of the union, which was in control of the New York
organisation, not for the purpose of advancing the interests of the
members, but to enhance the prestige of the left wing. It said
that the strike was conducted in bad faith and in violation of public
policy as defined by the Governor's Commission. I t claimed that
the strike was illegal and asked t h a t all acts which furthered it
should be enjoined l .
A preliminary injunction was issued. W h e n the case was argued
the union filed affidavits in opposition and went into the economic
background of the struggle in detail, in an effort to justify the strike
as a measure of self defence on the part of the workers. I t claimed
that the Industrial Council had no standing in court, since its
interests were distinct from those of its individual members 3 ; that
if any one was being injured it was the individual companies. T h e
court continued the preliminary injunction. T h i s forbade all interference with the companies' business and all picketing. T h e court's
opinion when the order was continued 3 follows, and the restraining
clauses of the order :
Mr. Justice INGRAHAM. — Industrial Council of Cloak, Suit and SkirtManufacturers, Inc. etc. v. Sigman. The Plaintiff, a membership corporation consisting of some two hundred concerns manufacturing ladies'
cloaks and suits in this city, is seeking in this motion to continue
pendente lite a preliminary injunction issued herein by Mr. Justice Guy.
The injunction now in force is directed to the defendants, the president
and treasurer respectively of the workers' unions, the individual members thereof, and the chairman of the strike committee of the unions in
the prosecution of the strike which is now in existence in this industry.
There are, according to the defendants' affidavits, about 40,000 workers
on strike. I have given very deliberate and careful consideration to
the papers before me, including the various affidavits submitted in favor
of and in opposition to the motion, as well as to the memoranda of counsel
and the authorities therein cited. No good purpose may be served
1
Statement from complainant's counsel, 9 Dec. 1926.
Statement to the Washington Branch of the International Labour
Office by respondents' counsel, 3 Dec. 1926.
3
Industrial Council v. Sigman ; New York Law Journal, 30 Sept. 1926.
2
UNITED STATES OF AMERICA
4l
by reiterating here the recitals of the many and extreme acts of violence
which appear in the affidavits submitted by plaintiff, and which are
not denied by the defendants except to the extent of submitting affidavits
from those who say they did not see the acts committed, nor is it
necessary to comment upon the apparent bad faith evidenced by the
defendants' renunciation of a sanctioned plan accepted and acted upon.
It suffices to say that on several occasions hundreds of the strikers, or
so-called pickets, have been arrested and brought before city magistrates,
where it would appear in nearly every instance their fines have been
paid by the defendant unions. The courts have already commented upon
the vast numbers of strikers who daily congregate in front of and in
the vicinity of the places of business of the manufacturers. Such crowds
in the particular neighborhood in question make for disorder, impede
traffic and have a tendency to incite violence. Epithets are hurled at
the employers and at those workers who refuse to join the strike.
Apparently also attempts are made by the strikers to coerce the designers
who are not members of the unions to join their cause, and this coercion
seems to have gone beyond the bounds of peaceable invitation, suggestion
or persuasion. Bearing in mind, therefore, that the issues presented in
this action must come to trial' at some future date, when both sides will
have an opportunity to more completely present their case and when
a final determination of the controversy may be made after all the evidence is in and both parties have produced their witnesses, I am
unwilling to disturb the preliminary injunction.
The motion is
accordingly granted and the preliminary injunction heretofore granted
by Mr. Justice Guy is in all respects continued pending the trial of the
action.
. .
Further ordered that the defendant Morris Sigma«, individually and as President of the International Ladies' Garment Workers'
Union, an unincorporated association having more than seven members,
Joseph Fish, individually and as Treasurer of the Joint Board of Cloak,
Skirt, Dress and Reefer Makers Unions of Greater New York, an unincorporated association having more than seven members, and Louis
Hyman, their agents, servants, members and representatives and each
of them, be and they hereby are enjoined and restrained from in any
manner impeding, obstructing, hampering or interfering with the continuance of the plaintiff organization and its members, and from interfering with the contracts had by the members of the plaintiff organization with their respective employees and from interfering in any manner
with the rendition of services by the employees and workers of the
plaintiff association and its members, and from the use of intimidation,
coercion, force and violence and from entering into or upon the premises
in which the plaintiff association or the members of the plaintiff association may have their places of business or be engaged in work and
from entering the homes of any of the members of the plaintiff association
or of their-workers and from entering upon any pretense whatsoever
into, adjacent to or in front of the premises in which members of the
plaintiff association may be working, with intent to compel, by threats,
intimidation, force and violence or the use of abusive or insulting
language, any of the workers of the plaintiff organization and or their
members, to refuse or fail to perform their duties and to breach or violate
their contracts and remain in the employ of their respective employers,
and from calling " scab " or " scabs " or other obnoxious, abusive
or insulting words or names to any member of the plaintiff association,
to any workers who are performing work for the plaintiff association
and or its members, or intimidating, threatening, assaulting, kidnapping
or otherwise coercing any member of the plaintiff organization and or the
plaintiff and any of the workers who shall be employed by the plaintiff
organization and its members, and from picketing any member of the
plaintiff organization and from hindering and harassing in any
way the free rendition of service by workers to the plaintiff association and its members, and by the use and exercise of the means
FREEDOM OF ASSOCIATION
42
aforesaid, either directly or indirectly or through agents, officers, attorneys
and others, during the pendency of this action and until the issues have
been tried and finally determined.
T h e r e were no contempt proceedings brought under this
injunction.
After the injunction was issued there were further
arrests b y the police for violence, assault, intimidation, and disorderly
conduct. Prosecutions were conducted under the criminal statutes
of N e w York State \
T h i s is not uniformly the practice. F o r instance, in the Chicago
dressmakers' strike conducted by the same national union in F e b r u a r y 1924 the arrests at first were for assault (which cases were
appealed and the defendants released on bail) or breach of the peace
(which cases were usually dismissed, since picketing is not criminal
in Illinois), but an injunction was issued and for three weeks pickets
were arrested under its terms. A b o u t 70 were convicted of contempt
of court and given fines or imprisonment or both. At the close
of t h a t period the uniform sentence was $350 and ten days, for
picketing and speaking to employees.
After that the strike
approached a close and the cases were given to another judge and
t h e n u m b e r of convictions became negligible. I n the first p a r t of
1926 sentences of from five to fifty days were affirmed on appeal.
T h e union also paid several thousands of dollars in fines for its
packets.
A n important but less typical opinion was one given in the
case of an injunction sought against pickets by a railroad during
the nation-wide shopmen's strike of 1922. T h e Attorney-General of
t h e United States had secured a sweeping injunction against the
leaders of the strike from a federal judge at Chicago. Many other
federal and state courts issued injunctions against the strikers. I n
the case in question the federal district judge in N o r t h Dakota said
that he would not enjoin the act of striking since that was n o t
illegal ; it was not a legal injury at all, so that it was irrelevant
t h a t the Clayton- Act (see below) allowed injunctions against
1
Statement to the Washington Branch of the International Labour
Office by complainant's counsel, 9 December 1926. In addition to the
injunction discussed, one was issued, in the same strike, in Rentner v.
Sigman (president of the International Ladies' Garment Workers), 216
Appellate Division 407 (intermediate New York court). One of the
demands of the union was that the designers be unionised. The United
Cloak and Suit Designers' Mutual Aid Association (workers) secured
an injunction against the Union. (New- York Law Journal, 2 December 1926.)
UNITED STATES 0E> AMERICA
43
irreparable injury. He proposed to forbid violent acts but he
complained that conducting a case on affidavits was not a trustworthy
method, especially if they were affidavits of private detectives ; he
compared the testimony of the affidavits with the reports of United
States marshals whom he had sent out. He pointed out that the
amount of violence had not been different on two railroads one of
which had an injunction and the other of which did not. He objected
to the practice of having the court's orders drawn up by a partisan,
the counsel for the complainant ; of having them repetitious and hard
for the strikers to understand ; of having them in general terms
instead of directed to meet the needs of the particular case. He then
gave his order, in sentences more simple than is usual in injunctions.
He forbade acts of violence. He added a statement of what he did
not mean to forbid. He added an injunction that the armed guards
of the railroad should not intimidate the pickets. He ordered the
marshal to mail copies of the order to the strikers and the guards \
Damages. — Damage cases are rare 2 . In injunction cases,
although the complaint usually asks for damages and an injunction,
yet the claim to damages is rarely pressed. This brings it about that
in effect there are procedural rights to be free from undue
molestation in going about one's business, and that these procedural
rights exist without being accompanied by enforceable substantive
rights. In effect an employer (for instance) has rights which will
secure an injunction and all that it implies, forbidding slrikers to
molest his employees or his customers unduly. But he cannot
or does not enforce his right to damages, which is the right on
which the injunction is grounded. The anomaly is even more marked
in cases involving collective labour agreements. In Anglo-American
law it is the rule that breach of contract is followed by damages
and it is the exception when it is followed by an order command-
1
Great Northern Railway Company v. Brosseau, 2S6 Federal 414.
After the decision of the federal Supreme Court in 1908 that the
Danbury Hatters might be sued for damages for authorising a boycott, and
again when damages were finally assessed against them in 1915, it was
freely predicted that there would be many darnage suits against members of labour unions. After the court indicated in the Coronado case
in 1922 that labour unions might themselves be sued for damages
because of harm done by an unlawful strike, it was freely predicted that
there would be many damage suits against labour unions. The first prediction was not fulfilled. The second prediction has not yet been fulfilled.
2
44
FREEDOM OF ASSOCIATION
ing specific performance of the contract. I n the few cases that there
have been in the United States adjudicating collective labour
agreements it has t u r n e d out, on the contrary, that where relief
against the breach of a collective agreement was allowed to an
employer it has taken the form of a restraining order intended to
hinder the breach. I t does not take the form of damages. Similarly
the injunction is valued far more for its moral effect upon the
strikers and the police t h a n for the possibility of prosecutions for
contempt under it.
One may conclude that what employing
companies desire from the courts is immediate relief from hindrances
to their business ; and t h a t this desire is usually sufficiently fulfilled
with the consequence that the secondary question of damages is
neglected. I t is not forgotten entirely.
Injunctions
in practice. — A leading student of the use of
injunctions in labour disputes has pointed out some of the effects of
their use '. H e says :
A strike is a contention largely before the bar of public opinion and
nothing will hurt the cause of the strikers more than an interference by
the courts, which amounts to a public declaration that they are violating
the law.
Injunctions and other legal difficulties are likely to divert the
energies of the strike leaders and the funds of the union. A n
injunction is likely to throw inexperienced strikers into a panic 3 .
J u d g e (now Chief Justice) Taft, in his speech accepting his nomination to run for President of the United States in 1908, said :
In case of a lawful strike the sending of a formidable document
restraining a number of defendants from doing a great many things
which the plaintiff avers that they ought not to do, often discourages
men, always reluctant to get into a strike, from continuing what is
their lawful right.
1
E. E. W I T T E : " Value of Injunctions in Labor Disputes ", 32 Journal of Political Economy 335 (June 1924).
2
In the strike of the American Railway Union in sympathy with the
Pullman shopworkers in 1894 federal troops were sent and the leaders
were arrested for contempt of a federal injunction sued out by the Federal
Government. The strike then broke down. It has been suggested that the
troops were the chief reason for this. See W I T T E , the same. Debs, the
leader of the strike, testified at his trial that it was the arrest rather
than the troops. The federal Supreme Court commented that this was
an indication of the law-abiding character of the population ; that courts
of equity rather than troops were the agency for determining questions
of right and wrong. In Re Debs (1895), 158 United States 564.
UNITED STATES OF AMERICA
45
On the other hand, a defiant attitude toward injunctions is often
sufficiently frequent to cause officers and members of a union to
pursue a strike with greater vigour after an injunction has been
issued. T h e leaders of the strike frequently protest publicly against
the injunction and denounce judicial usurpation of power.
They
may obtain popular support, especially if the injunction is sweeping
in its terms. T h e y will obtain the support of organised labour, for
" the employer who appeals to the courts is labor's dearest foe * ".
Also, the frequency of injunctions has lessened their effect on timid
strikers. W h e n there are acts of violence in defiance of the criminal
law, the issuing of an injunction adds no new legal inhibition.
A n established and well-disciplined union is less affected by
injunctions than is a newly formed and inexperienced group of
workers. T h e y have not hindered building trades strikes. T h e y have
not hindered coal strikes in the organised fields. But they have been
a factor in keeping the non-union coalfields unorganised.
In states, like Massachusetts, where the decisions of courts- in
injunction cases have been almost uniformly against labor, at least as
many strikes have occurred as in states where injunctions in labor disputes are much less common. In proportion to the number of its wage
earners engaged in industry Massachusetts had more than twice as. many
strikes in. the seven years 1916 to 1922 as did Wisconsin and 50 per
cent, more than Ohio, as shown by the 2statistics upon strikes published
by the U.S. Bureau of Labor Statistics .
Defensive tactics. — Until recently, labour unions have reacted
against the use of injunctions by obeying them or defying t h e m
and trying to get statutes passed which should limit their use. T h e
191Ç convention of the American Federation of Labor advised labour
to ignore writs of injunction. T h e theory t h a t the courts have n o
power over labour cases led to the doctrine, which is still widely
held, that labour unions should not recognise the power of t h e courts
by going to law. T h i s attitude has weakened since the restrictions in
the Clayton Act were declared (1921) to be of very limited application *. T h e r e had always been cases of labour unions against each
other.
T h e r e have recently appeared actions by labour unions
against employers. T h e movement is most prominent among the
clothing unions. T h e y have usually brought their actions under a
1
W I T T E , the same, p. 355.
' The same, p. 356.
* Duplex Printing Press Company v. Deering (1921), 254 United
States 443 ; and American Steel Foundries v. Tri-City Central Trades
Council (1921), 257 United States 184.
46
FREEDOM OF ASSOCIATION
collective agreement. A few have been successful \ A n o t h e r defence
has been for a union to reply to a request for an injunction by
filing a counter request ; or to bring a counter damage suit ; or
make a counter conspiracy charge against the employers' association 2 . I n a few cases this has led to a compromise. T h e leading
development has been in ordinary legal defence. Labour unions have
begun, here and there, to have their lawyers try to have the terms of
the injunction modified 3 ; to delay in filing answers ; to put the
union leaders on the witness stand ; to appeal cases in order to
postpone the payment of fines and jail sentences, in the hope that the
prosecution will later be dropped, to demand a jury trial for their
pickets w h o are charged with assault or misdemeanours, so that the
defendants m a y be released on bail and go back to the picket line
and in the hope that the case will be dropped before it comes to trial
or t h a t the j u r y will be more lenient t h a n a magistrate would b e .
A n o t h e r type of defensive action is to t r y to use the political influence
of the union, based on the voting power of its members, to secure
mitigation of police regulation of picketing or to secure pardons for
convicted members.
After the federal Supreme Court said in an obiter dictum in 1922
t h a t labour unions might be sued for damages under the federal antitrust laws, the Soutnern Illinois Coal Company, on the advice of the
L e a g u e for Industrial Rights, prepared to sue the United Aline
W o r k e r s for triple damages because of t h e injury done by the Herrin
riots during the national coal strike of 1922. T h e United Mine
1
An injunction against a lock-out was granted in the spring of 1927 to
a plumbers' union in New York City. Overruled by the Appellate Division of the Supreme Court of New York, 24 June 1927.
2
A rule of equity is that the complainant must come into court with
" clean hands ", that is, he must be free of guilt, or the court may refuse
to give him equitable relief. In Post and McCord, Inc., v. Morrin
(Structural Steel Workers) (1924, lower New York court) New York Law
Journal, 25 July 1924, or 6 Law and Labor 220, the court said that it
would not enjoin the strikers while the counter-charges of misconduct
which they had made against the complainant had not been proved
unfounded.
s
See for instance Michaels v. Hillman (1920) i n Miscellaneous
(New York) 284, 288. The Amalgamated Clothing Workers tried to unionise Michaels-Stern in Rochester (New York). The firm made an agreement with the United Garment Workers and secured an injunction which
forbade the Amalgamated to disturb the agreement or to interfere " in any
way " with the business of the company. On the page cited the court
changed the phrase to " by any of the acts or things herein restrained ".
UNITED STATES OF- AMERICA
47
W o r k e r s b o u g h t the property of the company " for a price which was
about $500,000 in excess of the reputed value of t h a t property ' ".
Many suits for damages and an injunction against t h e railroad
shop workers' unions grew out of their national strike in 1922. T h e y
were so frequent that little attention was paid by the lawyers of the
unions to the case of the St. Louis and San Francisco Railroad
until 1924 when they found that a default j u d g m e n t of $9,030,891
had been entered against them 2 . " T h r o u g h t h e good offices of
A t t o r n e y Mulholland and friendly negotiations w i t h t h e representatives of the railroad, an understanding was reached wheieby the
railway company agreed to abandon its claim for damages . . . " 3
THE
FEDERAL, JURISDICTION
I n the United States there are forty-eight states. E a c h of them
has its own legislature and its own courts. T h e United States has a
federal Congress and federal courts. T h e action of an association is
judged u n d e r the common law and the statutes of the state in which
the offence occurs. T h e federal jurisdiction is involved if the offence
directly affects trade which is being carried on among the states.
Actions are then b r o u g h t under the federal anti-trust statutes, since
there is no federal common law. T h e federal courts also administer
state law in cases between citizens of different states. If a state case
involves a federal question it may be taken to the federal courts
after the state courts have passed judgment upon it. T h e more
industrial states, mostly in the northeast, have most of the labour
cases.
A leading t e x t made this comment in 1911 :
The states have not accepted with equal readiness the principles of
equity or made equally free use of it in its application to labor questions,
while the federal courts have been governed by a law declaring their
full equity jurisdiction, and have doubtless felt a mutual and general
influence more readily than has been the case with the state courts.
These facts may in part account for a somewhat widespread feeling
1
M E R R I T T : History
of the League
for Industrial
Rights
(1925),
p . 122.
2
St. Louis and San Francisco Railroad against the International
Association of Machinists and other shop unions, United States district
court at Kansas City (Missouri), 13 Feb. 1924.
3
RAILWAY EMPLOYEES DEPARTMENT O F T H E AMERICAN F E D E R A -
TION O F LABOR : Report of Officers to the Seventh
1Ç26, Chicago, p. 61.
Convention,
June 28,
48
FREEDOM OF ASSOCIATION
that the writ of injunction, especially as used in labor disputes, is
peculiarly an instrument of the federal courts '.
A company which is seeking an injunction against strikers or
organisers cannot bring its case into a federal court unless each
defendant is a citizen of a different state from the state of which the
employer is a citizen or in which the company is incorporated. I n
a local dispute simply between a n employer and his employees this
diversity of citizenship does not exist. It does exist if the defendants
are representatives of a national union who live outside the state
and w h o are directing the strike or are trying to organise the plant;
I t does exist if the complainant is incorporated in another state or
if the suit is brought b y a company or person in another state w h o
is financially interested in the business so t h a t the court will recognise that it has property rights, which should be protected 2 . If
federal jurisdiction is established and if an injunction is issued, it
does not bind only the citizens of other states who are named as
defendants but also all persons who have notice of it, including all
the persons on strike 3 .
T h e result of these multifarious jurisdictions is that even when
cases are appealed their decision does not yield uniform rules of law
to cover the entire United States. Also, the cases in industrial
1
Lindley D. CLARK : Law of the Employment of Labor (1911), p. 310,
note 2. " It is often said that federal judges feel free to issue injunctions
because they are appointed for life, while state judges are elected, for
short terms. "
3
First Trust and Savings Company v.-Keystone Steel and Wire Company, Amalgamated Association of Iron, Steel and Tin Workers of North
America, and others (1919, federal district court for the southern district
of Illinois) 1 Law and Labor, Nov. 1919, p. 13. This case is a suit by a
bank holding bonds of the struck company. Apparently this form of suit
was chosen to obtain federal jurisdiction (the bank was in another state),
since the company had little to hope from the local courts, because the
region was well unionised.
This situation is contributed to by the
thorough organisation of the United Mine Workers in Illinois.
The counsel for the League for Industrial Rights (employers) suggests
that establishing federal jurisdiction through diversity of citizenship will
be facilitated now that the Federal Supreme Court has held that labour
unions are suable under federal anti-trust laws, since, if they are legal entities, they will be considered to have citizenship (for the purposes of federal suits) in a certain place. He adds that an advantage of federal jurisdiction is that state courts are dominated in some places by the labour
unions (as in Herrin, Illinois) and in others by the employers (as in
West Virginia). (MERRITT : History of the League for Industrial
Rights
(1925), p . I2T.)
3
Bessette v. Conkey, 194 United States 324, or 24 Supreme Court 665.
UNITED STATES OF AMERICA
49
relations are comparatively few, and it is rarely clear that the
circumstances of one are just like those of another. A case may
seem to lay down general principles, but this will still not result
in certainty as to what the law is, for dicta do not rank with
j u d g m e n t s in authority, since they lay down rules without the
c o u r t ' s having the facts of future cases before it.
Appeal cases are especially rare in the field of industrial
relations. Sometimes a test case is carried u p by a workers' or
an employers' federation. Single employers or unions do not have
the money to do it. Moreover, when the strike or other economic
controversy is over, there is often no reason for carrying the accomp a n y i n g litigation further into t h e appellate courts.
On the other hand, some uniformity is achieved by the fact
that the courts frequently do not try to distinguish the case from
those previously decided in their jurisdictions ; and they often accept
the decisions of other jurisdictions as precedents w h e n they have no
precedent in their own jurisdiction. Also, a good many important
cases are taken to the Supreme Court of the United States because ( i )
claims of i m m u n i t y are referred to the federal constitution, (2) there
is diversity of citizenship between the plaintiffs and the defendants,
or (3) the trade affected involves interstate commerce. T h i s aids
uniformity, for the decisions of the Supreme Court have great weight
with the state courts even in state cases that involve no federal
question.
T h e federal anti-trust legislation l is the most important statutory
law relating to labour disputes. I t provides t h a t t h e AttorneyGeneral of the United States may ask for an injunction against the
conspiracy ä and that persons damaged by the conspiracy may enjoin
it and may recover triple damages. I t is an important question in
what cases persons may properly ask for a remedy under the federal
laws. I t is necessary to show a definite connection with interstate
commerce 3 . I n the Danbury H a t t e r s case the company sold most
1
Sherman Anti-Trust Act, Act of 2 July 1890, chapter 647 ; United
States Compiled Statutes, sec. 8S20 ff. ; 26 United States Statutes at
Large 209 ; Clayton Act, Act of 15 October 1914, chapter 323 ; 38 United
States Statutes at Large 730.
2
But no money appropriated by Congress may be used to prosecute
a labour union under the federal anti-trust laws. See Act approved
27 February 1925, and similar Acts since 1913.
3
Federal powers include other fields beside commerce between the
states and with foreign nations, but none of them is important for the
law of industrial relations.
Freedom of Association
4
50
FREEDOM OF ASSOCIATION
of its goods in other states and it was its customers in other states
t h a t the members of the h a t t e r ' s union tried to influence.
The
federal Supreme Court in 1908 allowed an act-ion for damages against
the members for interfering with the company's interstate commerce \
I n the Duplex case the attempt to unionise a printing-press plant in
Michigan was aided by threats of strike against the c o m p a n y ' s
customers by the N e w York City machinists. T h e sale of machines
in N e w York w a s interfered w i t h a n d t h e injunction which h a d
been granted was affirmed in 1921 by the federal Supreme Court 2 .
On the other h a n d , the Supreme Court decided in 1922, in the
Coronado case, that there should be n o damages since the fact that
the coal was to have been shipped to other states did not make the
strike an attack o n interstate commerce. I t added the following
obiter dictum :
If unlawful means had here been used oy the National body to
unionize mines whose product was important, actually or potentially,
in affecting prices in interstate commerce, the evidence in question
would clearly tend to show that that body was guilty of an actionable
conspiracy under the Anti-Trust Act ».
Similarly the Court- held in the H e r k e r t and Meisel case t h a t
no injunction should be issued under the Act even though the strike
of trunk-makers kept the company from fulfilling its contracts to
ship to other states *.
I n 1925 a second decision in the Coronado case by the federal
Supreme Court showed that the scope of the federal Act was fairly
broad. N e w evidence had been introduced to show that one of the
chief reasons for the hostility of District 21 of the United Mine
W o r k e r s (the organisation of the coal miners in Arkansas, Oklahoma, and T e x a s , which was responsible for the damage to the
1
Loewe v. Lawlor (1908), 208 United States 274, and Lawlor v.
Loewe (1915), 235 United States 522.
2
Duplex Printing Press Co. v. Deering (1921), 254 United States 443.
3
United Mine Workers v. Coronado Coal Company (1922), 259 United
States 344.
4
United Leather Workers v. Herkert and Meisel Trunk
Company
(1924), 265 United States 457. There are a good many cases which give
further indication of what is " interstate commerce ", but they are not
cases involving vocational associations, as the term is used here. Many
of them do involve the type of vocational association known
as the " trade association " and its privileges in the direction of
exchanging information and doing other acts which are suspected of
raising prices. See F . D. JONES : Trade Associations and the Law, 1926,
McGraw-Hill, New York City.
UNITED STATES OF AMERICA
SI
mines) was that the companies in question, if they were allowed to
r u n non-union, would be substantial competitors of union mines in
t h e interstate commerce in coal and this might cause union mines
to go non-union. T h e court indicated t h a t this consideration b r o u g h t
the wrongs under the federal law a n d sent the case back to the
district court for further action \
.
JUDICIAL SUPREMACY
N o t only do the courts handle labour injunction cases without
the benefit of substantial statutory guidance, b u t they have also
prevented t h e legislatures' attempts to limit the jurisdiction of the
courts in these cases. T h e y have done this by declaring t h e laws in
question to be unconstitutional.
T h e federal Constitution and many of the state constitutions
were drawn up at the end of t h e eighteenth century, when freedom
of association was not a constitutional issue. W h e n a law is held
unconstitutional reference is usually made to the constitutional
immunities that neither liberty nor property shall be taken
away without due process of law or t h a t no person shall be
denied the equal protection of the law. B u t it is understood that
these phrases give little guidance in particular cases and that t h e
decision is made according to t h e j u d g e s ' opinion of what are " the
fundamental principles of right a n d justice " 2 which the constitutions were intended t o maintain.
T h e statutes limiting or purporting to limit the powers of courts
of equity in labour cases were passed after agitation by labour unions.
T h e federal Congress included several such clauses in t h e Clayton
Anti-Trust Act of 15 October 1914 \ I t was the intention of
Congress, not to enact sweeping immunities for labour unions, but
chiefly to clarify the (federal) law 4 . T h i s was made certain in the
Duplex case, decided by t h e United States Supreme Court in 1925 5 .
1
Coronado Coal Company v. United Mine Workers (1925), 268 United
States 295, or 45 Supreme Court 551. The damages claimed are about
$200,000. Tripled under the terms of the Act they are about $600,000.
2
Truax v. Corrigan (1921), 257 United States 312.
•, 38 United States Statutes at Large 730.
4
Alpheus T. MASON : Organised Labor and the Law 7925, Duke
University Press, Durham (North Carolina), Chapter 10, pp. 16S-202.
5
Duplex Printing Press Company v. Deering (1921), 254 United
States Reports 443.
FREEDOM OF ASSOCIATION
52
T h e court pointed out that section 20 of the Clayton Act restricted
the issuing of injunctions only in cases in which t h e defendants h a d
persuaded third parties to cease to patronise the complainant by
peaceful and lawful means (and the like) or in cases in which an
injunction was not needed because the injury would not be irreparable.
F u r t h e r m o r e , the restrictions applied only in cases
between employer and employees (and the like) : " Congress h a d in
mind particular industrial controversies, not a general class war. "
T h e defendants in the case were not employees of the complainant
corporation. T h e y were N e w York City members of the Machinists'
Union, which was trying to organise the corporation's plant in
Michigan. T h e union in New York was bringing economic pressure
to bear on the corporation's customers. T h e court held t h a t this
was not lawful and peaceful persuasion and that the damage was
irreparable and that in any case they were not the corporation's
employees : so that the Clayton A c t did not forbid an injunction.
I t held that they were causing loss to the corporation in its interstate
business, without a direct interest in the strike to justify it. I t held
t h a t t h e corporation could obtain a federal injunction forbidding t h e
union in N e w York to persuade customers not to deal with t h e
corporation.
T h i s decision does not deny t h a t t h e Clayton Act apparently
frees from federal injunctions persons who withhold theii custom or
their services or peacefully persuade others to do it, even t h o u g h
these acts may interfere with a company's free access to the market
for its goods or to the labour m a r k e t ; provided that they are strikers
or the like \ Peaceful persuasion is not well defined.
T h e Clayton Act contains other restrictions on the powers of
the federal courts. Section 17 stipulates that, when a restraining
order is issued without notice to the defendants, a hearing must be
given ten days thereafter. Section 18 requires that if a restraining
1
A union of station employees agreed with a terminal company to
submit to the Railroad Labor Board the question of altering their collective agreement. While the question was before the Board the union
voted to strike. The company secured an injunction from the local federal
court forbidding them to strike. The intermediate federal court later
dissolved the injunction. It pointed out that the Clayton Act specifies
that when an injunction is issued by a federal court it shall not forbid
quitting or persuading. Foss v. Portland Terminal Company, Circuit
Court of Appeals, 13 February 1923, 5 Law and Labor 90. But the Clayton
Act does not protect intimidation or violence. Kinlock Telephone Com~
pany v. Union No. 2, 265 Federal 312, 275 Federal 241.
UNITED STATES OF AMERICA
53
order is issued the complainant shall furnish a bond to the amount
the court demands, so that the defendants shall be secured against
damages caused by an unjustified injunction. Section 19 says t h a t
the restraining order must be specific in its terms.
Sections 22 and 24 provide that when a person is accused of
contempt before a federal court because of an act which is also a
crime in the given state under federal statute he may demand a j u r y
trial, unless the injunction was obtained by the United States as
complainant or the contempt was of the class which are committed
in the presence of the court. T h i s part of the Act was inserted in
response to a demand which called attention to the fact that in trial
for contempt of a labour injunction no jury was used, although it
was usually a trial for an act which was also a crime. I n 1924 the
United States Supreme Court declared in the Michaelson case t h a t
this part of the Act was not an unreasonable limitation on the courts :
. . . The only substantial difference between such a proceeding
as we have here, and a criminal prosecution by indictment or on
information, is that in the latter the act complained of is the violation of
a law, and, in the former, the violation of a decree '.
T h e use of a j u r y in contempt cases is so recent t h a t there is
no evidence whether it results in more frequent acquittals or not.
T h e provisions of the Clayton Act favourable to labour have
not prevented the Federal Government from undertaking a n u m b e r of
prosecutions against labour unions and against agreements between
trade associations and labour unions \
A number of states have anti-trust laws, and some of these except
labour unions and farmers' organisations 3 . T h e effect of this is
1
Michaelson v. United States ex relatione Chicago, St. Paul, Minneapolis, and Omaha Railway Company, 266 United States Reports 42 (1924).
Compare Felix FRANKFURTER and James LANDIS : " Power of Congress
over Procedure in Criminal Contempt ", 37 Harvard Law Review 1010
(1924) ; an exhaustive study of the precedent for the sort of limitation
imposed by the Clayton Act.
2
See United States v. Norris (1918), 255 Federal 423 ; Boyle v. United States (1919), 259 Federal 803 ; Belfi v. United States (1919), 259 Federal 822 ; United States v. Bricklayers Union (1922), 4 Law and Labor 95 ;
O' Brien v. United States (1923), 290 Federal 185 ; Vandell v. United States
(1925), 6 Federal (2d.) 188 ; United States v. Brims (1927) 47 Supreme
Court 169.
3
See
UNITED STATES BUREAU OF LABOR STATISTICS : Bulletin
370 :
" Labor Laws of the United States ", laws indexed under " Anti-Trust
Act, exclusions from ".
54
FREEDOM OF ASSOCIATION
to enact the prevailing rule that labour unions are not illegal
conspiracies in themselves.
T h e r e are statutes similar to these anti-injunction provisions of
the Clayton Act on the books of eleven states \
T h o s e on the books of Minnesota and U t a h are much like a
Massachusetts statute * which was declared unconstitutional by the
highest court of the state in a case ' which involved two contending
unions. T h e court declared that if t h e statute were constitutional
the property of capitalists would have the safeguard of injunctions
in proper cases while in this case workers would be without protection of their right to labour. A s early as 1903 California had passed
such an Act " and the highest court of the state held it void 5 . I t
said : " I t attempts to grant privileges and immunities to certain
citizens or classes of citizens, which, u p o n the same terms, have not
been granted to all citizens 6 . W h e n the Illinois law was passed in
1925 there was a strike against a m e n ' s clothing firm in Chicago
(Illinois) and in New York City. A n injunction was issued in New
Y o r k , b u t a Chicago court held t h a t t h e new statute was constitutional and that no injunction should be issued. Other Illinois judges
have granted injunctions since then 7.
I n Missouri, Oklahoma, Virginia and Massachusetts Acts
p u r p o r t i n g to limit the power to punish for contempt were declared
unconstitutional. All except the Missouri statute provided for trial
by jury. A law proposed in Massachusetts went so far as to bar any
1
U N I T E D STATES BUREAU OP LABOR STATISTICS : Bulletins
370
and
403. New Jersey passed an anti-injunction law in 1925 (chapter 169). It
denied to the state courts of chancery the power to forbid peaceful persuasion, etc. This does not protect mass picketing from injunction. Forstmann and Huffmann Company v. United Front Committee (1926), 133
Atlantic 202 (Passaic textile strike). Nor does it create a privilege to
picket if there is no strike. Gevas v. Greek Western Workers' Club (1926),
134 Atlantic 309. In 1913 two states passed laws intended to legalise peaceful persuasion : Massachusetts, Laws 1913, chapter 690 ; New Hampshire,
Acts 1913, chapter 211. Similarly Wisconsin, 1923, chapter 55.
2
Massachusetts, Acts of 1914, chapter 778.
* Bogni v. Perotti (1916), 224 Massachusetts 152, or 112 Northeastern
853, Criticised in 30 Harvard Law Review 75.
4
California, Acts of 1903, chapter 235, Sims' Penal Code, p. 581.
5
Goldberg v. Stablemen's Union (1906), 149 California 429, or 86
Pacific 324.
6
Pierce v. Stablemen's Union (1909), 156 California 70, or 103
Pacific 324.
7
In Ossey v. Retail Clerks (1926), on division of the Superior Court
of Cook County, Chicago (Illinois), held the statute unconstitutional.
UNITED STATES OF' AMERICA
55
action against a n association of employers or employees or against
any of their members or officials, on account of tortious acts. I t
was held unconstitutional in advisory court opinion \
A n Arizona law 2 h a d m u c h t h e same tenor a n d m u c h t h e same
language as t h e parts of t h e Clayton A c t which were discussed above.
T h e highest court of the state held it constitutional a n d refused to
allow a n injunction in a case in which t h e picketing d i d n o t involve
violence b u t did involve intimidation 3 . T h e Federal Supreme Court
in 1921 held t h a t this interpretation of t h e l a w m a d e i t unconstitutional 4 . T h e decision w a s t h e occasion of a thorough discussion of
the Supreme Court, since three of t h e nine judges dissented.
§
2. — T h e Union
THE
and its
Members
PROCESS OF ORGANISATION
Persons who wish to associate themselves into a n unincorporated
association are not required to go through any formalities.
They
are at liberty to unite for almost any p u r p o s e 5 .
Organisations
which teach t h e use of violence to achieve economic or political
ends are proscribed. Various business unions have been assailed
in court as unlawful conspiracies in themselves, b u t t h e charge h a s
never come to a n y t h i n g 6 .
1
In re Opinion of the Justices (Liability of associations for tortious
acts) (1912) 211 Massachusetts 618, or 98 Northeastern 337. The proposed
Act copied the first paragraph of the fourth section of the British Trades
Disputes Act of 1906.
2
Arizona Revised Statutes 1913, paragraph 1464.
s
Truax v. Corrigan (1918), 20 Arizona 7, or 176 Pacific 570.
4
Truax v. Corrigan (1921), 257 United States 312, or 42 Supreme
Court 124. This decision is criticised adversely in 10 California Law
Review 237, 22 Columbia Law Review 252, 31 Yale Law Journal 408. It
is commented on in 94 Central Law Journal 1, 55 ; 8 Virginia Law Review
298, 374 ; 28 West Virginia Law Quarterly 144.
" Statutes confirming the decisions of courts that the act of associating in labour unions is lawful have been passed by the United States
(the Clayton Act) and by twenty-seven of the forty-eight states. See
U N I T E D STATES BUREAU O F LABOR STATISTICS : Bulletin
370 : " Labor
Laws (May 1925) ", index under the headings " Anti-trust Act, exclusions
from " and " Labor organizations, incorporation, regulation, etc., of ".
8
/ . Friedman and Company v. Amalgamated Clothing Workers (1921),
3 Law and Labor 81. Hitchman Coal and Coke Company v. Mitchell
(1913), 202 Federal 512.
56
FREEDOM OF ASSOCIATION
T h e freedom to join an association e x t e n d s only to persons
properly qualified according to the rules of the association. F o r
instance, most of t h e building trade unions require t h a t applicants
shall be citizens of the United States or have their first papers. For
another instance, the federal constitution's guarantees to negroes
have force only against the state g o v e r n m e n t s and cannot make
unions take in negroes when they have decided not to.
All persons are legally free not to become members of a n association if t h e y do not wish. I n a highly unionised industry they have
to join to keep their jobs. If a company decides to r u n non-union
a n d gets a n injunction preventing t h e union from approaching its
workers, these workers acquire a special legal freedom not to join.
If these workers have signed individual agreements not to join
the union, or in any case if the shop is a closed non-union shop, the
workers have the legal freedom to join, but only if they quit their
jobs.
Their freedom is also limited by the fact t h a t to all intents and
purposes blacklisting is legal throughout the United States, though
half the states have laws against it. T h e s e contemplate a penalty
for persons w h o circulate information against workers, but not for
persons who act on it. By way of exception to the general rule that
the blacklist is legal, the Federal Supreme Court h a s recently held
t h a t a shipowners' association put unlawful restraint u p o n its
members w h e n it required them to use only seamen hired t h r o u g h
its employment agency and to pay them at rates fixed by the association. T h e suit for an injunction was b r o u g h t by a member of the
S e a m e n ' s Union who had been discriminated against and who sued
on behalf of himself and all other seamen \ T h e decision in such
cases, before federal courts, t u r n s to a large degree u p o n the relation
of the litigants to interstate commerce. T w o years before, the court
h a d dismissed an action of the United States against an association
1
Anderson v. Shipowners' Association of the Pacific Coast, Pacific
American Steamship Association, and others, decided by the Federal
Supreme Court 22 November 1926. The " Employment Service Bureau "
in question is described in the official monthly of the defendant associations, 24 Pacific Marine Review, No. 1, pp. i o - n , January 1927. A history of the case is given in 24 Monthly Labor Review 132-134, January
1927. A contrary decision in a similar case had been given by an intermediary court : Tilbury v. Oregon Stevedoring Company (1925) 7 Federal
(2d)
1, or U N I T E D STATES BUREAU OE LABOR STATISTICS : Bulletin
417,
p. 15. Also compare Bulletin 235 (January 1918), which describes the
" E m p l o y m e n t system of the Lake Carriers' Association", the effect
of which was to do away with the lake seamen's unions (p. 21).
UNITED STATES OF' AMERICA
0/
of building companies which required its members to use non-union
materials and to hire non-union workers, on the ground that t h e
combination affected interstate commerce only remotely ' .
Professor Commons is of t h e opinion that " T h e arbitrary u s e
of t h e right to discharge, unchecked by courts holding to laisser faire
doctrines, is t h e outstanding menace to their (the workers')
o r g a n i z a t i o n s " 2 . Beginning in t h e eighties a number of states passed
laws which reinforced the workers' privilege of joining a n d belonging
to labour unions by making it a misdemeanour for an employing
company to discriminate against union members by discharging a
worker because h e belonged to a union ; others forbade companies
to require workers to agree not to join a union or to give u p their
membership as a condition of securing or retaining employment. I t
has been pointed out that such laws opened t h e w a y for laws forbidding companies to discriminate against workers for not belonging
to a labour union, which would make it impossible for a union to
establish a closed union shop ; a n d t h a t in a n y case laws forbidding discharge because of union membership would n o t " make it
easier for workers to get together in labour organisations. Employers
almost certainly would be able to u r g e other reasons for discharging
employees than membership in labour organisations. . . " These
difficulties were disposed of by t h e fact t h a t these laws were held
unconstitutional, usually b y t h e state courts 3 . T h e y were held t o
be class legislation. T h e federal E r d m a n Act, approved i J u n e 1898,
provided for arbitration a n d conciliation on t h e railroads ". A s a
p a r t of this plan it forbade railroads to discharge workers for belonging to a union. T h i s provision w a s held unconstitutional by t h e
Federal Supreme C o u r t 5 . I n an early case an Ohio court h a d inter-
1
Industrial Association of San Francisco v. United States, 268 United
States 64. Contrast the decision in that case with a recent decision by the
Court, United States v. Brims (1926), 47 Supreme Court 169, which held an
agreement between the Chicago carpenters' union, building contractors,
and manufacturers of union-made carpenter materials to use only such
materials was an unlawful restraint on interstate commerce.
2
John R. COMMONS : " Tendencies in Trade Union Development in
the United States " (June 1922) 5 International Labour Review 855, 862.
» UNITED STATES BUREAU O F LABOR STATISTICS : Bulletin
. " Labor
Laws that have been Declared Unconstitutional ", by Lindley D. CLARK
(1922).
4
30 United States Statutes at Large 428.
Adair v. United States (1908), 208 United States 161, or 28 Supreme
Court 277. Criticised in 42 American Law Review 161, 164 : " Discrimination against Union Labor Legal? ", by Honorable Richard OLNEY.
5
58
FREEDOM OF ASSOCIATION
preted the Ohio law as prohibiting only the coercing of employees
into quitting their union l . O n e of the unconstitutional statutes was
a K a n s a s statute. A second law was p a s s e d a and the highest
court of Kansas followed the Ohio decision and declared that it was
constitutional in its limited application '. T h i s decision was reversed
by the Federal Supreme Court, which declared the law unconstitutional in any case i .
T h e Federal Government has made special criminal enactments
to guard against revolutionary combinations. T h e present section 37
of the federal Criminal Code punishes with severity conspiracies " to
commit any [statutory] offense against the United States " 5 . T h e
immigration laws prohibit the entrance into the United States of
aliens holding certain politico-economic doctrines, or belonging to
organisations committed to t h e m . T h e first set of these restrictions
was laid down in 1903, after the assassination of President McKinley
by an alleged anarchist. Other debarring disabilities have been
added from time to time, and the present law excludes from the
United States " aliens who are anarchists ; aliens who believe in or
advocate the overthrow by force or violence of the Government of
t h e United States or of all forms of law ; aliens who disbelieve in
or are opposed to all organized government ; aliens who advocate or
teach the assassination of public officials ; aliens who advocate or
teach the unlawful destruction of property ; aliens who are members
of or affiliated with an organization that entertains a belief in,
teaches, or advocates the overthrow b y force or violence of the
Government of the United States or of all forms of law, or t h a t
entertains or teaches disbelief in or opposition to all organized government, or t h a t advocates the d u t y , necessity, or propriety of t h e
unlawful assaulting or killing of any officer or officers, either of
specific individuals or of officers generally, of the Government of
the United States or of any other organized government, because
of his or their official character, or t h a t advocates or teaches t h e
unlawful destruction of property " \
Later, the giving or lending
1
Davis v. State (1893), 30 Ohio Weekly Law Bulletin 342.
' Kansas, General Statutes of 1909, sections 4674-4675.
8
State v. Coppage (1912), 87 Kansas 782, or 125 Pacific 8.
* Coppage v. Kansas (1915) 236 United States 1, or 35 Supreme Court
240 : Criticised in 28 Harvard Law Review 497.
5
See also Section 6 of the Federal Criminal Code.
* Act of 16 October 1918, c. 186 ; United States Compiled Statutes,
1919 Supplement, section 4289 1/4 b.
UNITED STATES OP AMERICA
59
of money was made proof of advocacy or membership '. Acquiring
the forbidden philosophies or adhering to organisations committed
to them after the settlement of the alien in t h e United States renders
him liable to deportation.
T h e federal Senate on 6 May 1918 passed " A Bill to declare
unlawful associations proposing by physical force, violence, or injury
to bring about any governmental, social, industrial, or economic
change in t h e U n i t e d States, and prescribing p u n i s h m e n t for persons
engaged in the activities of such associations, and for other purposes " 2 . A committee of the House of Representatives reported the
Bill with a m e n d m e n t s ; it was never acted upon \ T h e Espionage
Act 4 was amended on 16 May 1918 to make advocating curtailment
of production in time of war punishable by a fine of not more t h a n
$10,000 or imprisonment for not more than twenty years, or b o t h 5 .
T h e Espionnage Act was repealed in 1921 6 .
Many j u d g m e n t s have been rendered a n d convictions sustained
under the federal Acts.
T h e decisions indicate that proof of
membership in the I . W . W . or the communist party is sufficient to
sustain an order of deportation '. Proof of active membership in
the I . W . W . was held to sustain convictions under the • Espionage
Act8.
D u r i n g t h e W a r and a period thereafter, several states and territories passed laws directed against syndicalism a n d sabotage ; in
1917, I d a h o , and Minnesota ; in 1918, Arizona ", Montana, Nebraska,
1
Act of 5 June 1920, 41 United Statutes at Large 1008. Other recent
additions are 39 United Statutes at Large 889, passed 5 Feb. 1917, over
the President's veto ; 40 United States Statutes at Large 1012, approved
16 October 1918 ; 41 United States Statutes at Large 593, approved
10 M a y 1920.
2
65th Congress, second session, Senate Bill 4471, 56 Congressional
Record, part 6, p. 6091.
3
House Committee Report No. 758. Also 56 Congressional Record,
Part 9, p. 9238.
4
40 United States Statutes at Large 217, Act approved 15 June 1917.
5
40 United States Statutes at Large 553, Act aproved 16 May 1918.
6
41 United States Statutes at Large 1359, Act approved 3 March 1921.
T
United States ex relatione Diamond v. Uhi, 266 Federal 34 ; United
States ex relatione Rakics v. Uhi, 266 Federal 646 ; United States ,v.
Wallis, 268 Federal 413 ; Ex parte Bernât, 255 Federal 429 ; Skeffington
v. Katzefj and others, 277 Federal 129.
8
Haywood and others v. United States, 268 Federal 795 ; E. Anderson
and others v. United States, 269 Federal 65 ; C. W. Anderson v. United
States, 273 Federal 20.
* Sabotage only.
6o
FREEDOM OF ASSOCIATION
N o r t h Dakota ' and South Dakota ; in i a i o , Alaska, California,
Hawaii, I n d i a n a 2 , Iowa, Michigan, Nevada, Ohio, Oklahoma,
Oregon, U t a h , W a s h i n g t o n 3 , and W y o m i n g * ; a n d in 1920,
K a n s a s ; in all, nineteen states and two territories 5 .
T h e penalties for contravention vary i n severity. I n ten states,
the m a x i m u m is ten years in prison a n d / o r a fine of $5,000 ;
California prescribes a jail sentence of from one t o fourteen years ;
South Dakota, prison for one to twenty-five years a n d / o r a fine of
from one to five thousand dollars ; N o r t h Dakota, prison for from
one to twenty years. T h e most inclusive definition of the offence is
t h a t of the Minnesota statute. I t defines criminal syndicalism as
" any doctrine which teaches or advocates crime, sabotage (sabotage
as defined in this Act means wilful and malicious damage or injury
to t h e property of a n o t h e r ) , violence or other methods of terrorism,
or t h e destruction of life or property, for the accomplishment of
social, economic, industrial or political ends. " I t declares this
advocacy to be a felony and punishes " by imprisonment in the state
penitentiary for n o t less t h a n one nor more t h a n twenty-five years,
or by a fine of not less than $1,000 nor more t h a n $10,000 or by
both such fine and imprisonment " anyone w h o (1) advocates or
" suggests " such doctrines, (2) publishes, circulates or has in his
(or her) possession printed matter which advocates or " suggests "
any doctrine that economic or political ends should be brought about
by " crime, sabotage "', and the like, (3) belongs to or assembles
with any group or organisation which advocates or " suggests "
such a doctrine, or (4) permits in any room or building owned or
controlled by h i m (or her) any assemblage of this character.
Membership in the Industrial W o r k e r s of t h e World was the
gist of t h e offence i n most of t h e cases u n d e r these laws which
reached appellate courts.
T h i s explains w h y the statutes and
1
Sabotage only ; for the period of the War.
Syndicalism only.
The Washington state legislature passed a syndicalism law in 1917.
It was vetoed by the governor, 20 March 1917. It was passed over his
veto, 14 January 1919. Washington, Acts of 1919, chapter 3. Separate
laws against syndicalism and against sabotage were then passed and
approved 19 March 1919. Washington, Acts of 1919, chapters 173, 174.
* Syndicalism only.
5
This subject is reported in 14 Monthly Labor Review 803, April 1922,
" Criminal Syndicalism and Sabotage ", by Daniel CALLAHAN. Compare
3
5
BRISSENDEN ; The I. W.
W-, 1919, pp. 345-348.
UNITED STATES OF, AMERICA
6l
convictions under them were most prominent on the Pacific coast
where the I . W . W . were strongest.
Criminal syndicalism statutes are constitutional. T h e leading
cases were decided on 16 May 1927, by t h e federal Supreme Court.
T h e most important one was the case of Whitney
v.
California.
W h e n tue Communist Labor P a r t y split from t h e Socialist P a r t y
in 1919, A n i t a W h i t n e y , a well-known humanitarian, joined it. I t
adopted a platform of securing political and industrial change by
violent means. Advocacy of this doctrine was forbidden by the
California Criminal Syndicalism A c t of 1919. Mrs. W h i t n e y attended the California state convention of the P a r t y and argued
against the platform, but did not leave t h e convention when it was
adopted. Most of the convictions u n d e r the California Act were for
belonging to the I . W . W . Mrs. W h i t n e y was convicted under t h e
Act of adhering to an organisation which advocated unlawful
doctrines. On appeal it was u r g e d upon t h e federal Supreme Court
that the law invaded u n d u l y t h e fundamental liberty of individuals
which are protected by the federal constitution. T h e court decided
that the law was constitutional. Justice Brandeis wrote an opinion
deprecating that type of law. H e concurred in the decision of the
court, on the ground that there was considerable danger to property
at the time the law was passed and that an emergency existed which
the state might not unreasonably meet^with legislation. Mrs. Whitney was pardoned by the governor of California, one of the few
p a r d o n s for criminal syndicalism \
A few enactments of this general sort h a v e been found unconstitutional. N e w Mexico's statute simply declared unlawful an
Act the purpose of which is t h e destruction of organised governm e n t 2.
Diamond was convicted for soliciting members for the
I . W . W . H e appealed and the highest court of the state decided
t h a t the statute was unconstitutional because it was too general in its
terms, which might cover " the m a n who advocates a change in the
form of our Government b y constitutional means " \
I n Missouri
a m a n was charged with circularising literature intended to hinder
the Federal Government in prosecuting the war. T h i s came under an
1
See also the trial in 1923 of the leaders of the communist party,
which convened in Michigan : People v. William Z. Foster ; People v.
Ruthenberg, 201 Northwestern 358.
" New Mexico, Laws of 1919, chapter 140.
3
State of New Mexico v. Diamond (1921) 202 Pacific 988.
62
FREEDOM OF ASSOCIATION
ordinance of Kansas City (Missouri) \ T h e general appellate court
of the state held that the ordinance was unconstitutional because it
covered " matters of federal rather t h a n state cognizance " 2 .
A n ordinance of Los Angeles (California) referred to the display
of flags, and the like, by organisations espousing principles or
theories antagonistic to the Constitution.
T h e highest court of
California decided it was unconstitutional because its wording could
cover organisations advocating amendment of the Constitution 3 .
T h e two cases holding ordinances unconstitutional are partly explained by the fact that the presumption in favour of the constitutionality of city ordinances is m u c h less t h a n the presumption in favour
of state statutes.
T h e r e are other prohibitions of state or municipal authorities
within which associations for social and economic, as well as political
change may fall. Most of them were passed in 1919, like the syndicalism laws. A few date from before the W a r . T h e r e are the
enactments against the display of red flags and other " revolutionary "
insignia in Arizona, California, Colorado, Connecticut, Delaware,
I d a h o , Illinois, Indiana, Iowa, Kansas, Massachusetts (1913) 4 ,
Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico,
N e w York, Oklahoma, Oregon, South Dakota, Utah, Vermont,
W a s h i n g t o n , West Virginia and Wisconsin. F o u r states have
statutes against incitement to specific acts of violence : K e n t u c k y ,
Massachusetts, New Jersey (1908), and Vermont. F o u r more forbid
incitement to crime generally : Indiana, which forbids advocacy
of revolution by " general cessation of industry " ; W a s h i n g t o n
(1909), W y o m i n g , and New H a m p s h i r e , which forbids advocating
the overthrow of government or t h e interference with any public
or private right whatever by force, and any act which tends to
encourage violation of law 5 . T w o have put a ban on " criminal "
anarchy ; N e w York (1902) ", and W a s h i n g t o n (1909) T.
1
Ordinance No. 33205.
Ex parte Taft (1920) 225 Southwestern 457 (Missouri).
" Ex parte Hartman (1920) 188 Pacific 548 (California).
4
Enforced against the red flag of Harvard University during the
War ; then repealed.
5
See CHAFEE : Freedom of Speech, 1920, pp. 401-404.
* Consolidated Laws of New York, 1909, vol. TV, the Penal Law,
Article 14, sections 160-162, p. 2544.
7
Washington, Laws of 1909, p. 894, sections 310, 311. Remington
and Ballinger's Annotated Code of Washington, sections 2562, 2563.
2
UNITED STATES OF AMERICA
LEGAL
VIEW
OF
UNIONS'
The Union as a de facto
63
EXISTENCE
Corporation
T h e leading problem for t h e courts, w h e n an unincorporated
association came before them, was to decide whether to treat it as
a collection of individuals or as a legal entity. I n most jurisdictions
considerable progress has been made toward treating it as an entity.
One of the chief criteria of whether an association has a separate
legal existence is its power to sue and its liability to be sued. W h e n
vocational associations were first b r o u g h t into court it was as
conspiracies under the criminal common law, and the conspirators
were indicted as individuals, though they might be tried together.
iWhen an employer or a worker who h a d been harmed by the carrying out of the conspiracy claimed damages under the common law,
he asked them against the individuals. W h e n he went to a court of
equity a n d asked for damages and an injunction, he w a s able to
obtain an injunction by n a m i n g a few of t h e officers or members
involved in the strike or other combination 1. All other persons w h o
h a d knowledge of the injunction were t h e n u n d e r duty not to violate
its terms nor to help an enjoined person to violate i t 3 . Usually it
was understood that there w a s a definite membership intended to b e
reached by t h e injunction against a few of them 3 . Conversely a
complainant could ask for an injunction on behalf of himself a n d all
others similarly situated.
Such an action was k n o w n as a
" representative suit " ". Similarly a n employers' association m a y
obtain an injunction for its m e m b e r s 5 . Similarly all employing
companies in t h e building trades of a locality m a y join in obtaining
' For instance, American Steel Wire Company v. Wire Drawers
(1898), 90 Federal 598. A strike leader was taken to represent the group,
though he was not an officer.
2
See Garrigan v. United States (1908), 163 Federal 16.
3
For example, In Re Lennon (1897), 166 United States 54S.
4
See federal equity rule 38, in 226 United States 659, or 198 Federal
29, and, Statutes allowing representative suits, Indiana, A. S., section
270, Ohio General Code, section 11257 ; Nevada, C. L., section 3109 ; and
others. Recently the federal Supreme Court allowed an injunction against
a shipowners' association at the suit of a member of the Seamen's Union
suing on behalf of himself and all other seamen. Anderson v. Shipowners,
decided 22 November 1926.
s
Industrial Council v. Sigvian : New York Law Journal, 30 September 1926, lower New York court.
64
FREEDOM OF ASSOCIATION
one injunction against all t h e building trades unions '.
" The
theory, entertained in E n g l a n d before 1871, that trade unions have
no standing in court because they are illegal combinations in
restraint of trade, never gained a foothold in t h e United States 2 . "
A n u m b e r of states have passed laws saying that unincorporated
associations might recover from embezzling officers ; a n u m b e r of
courts held t h e same t h i n g 3 . A n u m b e r of states have general laws
saying that unincorporated associations may sue a n d be sued in their
own names, through their officers 4 . T h e result is t h a t labour unions
and other associations have often been made parties to adjudications
even where there w a s n o formal equity ruling or statute which
allowed i t 5 . T h i s tendency was given authority in 1925 when t h e
federal Supreme Court ruled t h a t a labour union m i g h t itself be sued
for damages under t h e federal Anti-Trust A c t *. This h a d been
stated as a dictum in 1922. O n t h a t occasion Chief Justice Taft, i n
support of t h e dictum, summed u p t h e elements which make labour
unions corporations de facto :
Undoubtedly at common law, an unincorporated association of persons was not recognized as having any other character than a partnership
1
4 Law and Labor 121 (1922), West Virginia.
2
COMMONS and A N D R E W S , Principles
of Labor. Legislation
(1920 edi-
tion), p. 103. But see Froelich v. Musicians, 93 Missouri Appeals 383,
391s
Snow v. Wheeler, 113 Massachusetts 179; Brown v. Stoerkel, 74
Michigan 269, or 41 Northwestern 921 ; Rhode v. United States, 38 Washington Law Reporter 26, or 34 Appeals, District of Columbia, 249.
* For instance, New York Code of Civil Procedure, section 1919 ;
California Civil Code, section 388 ; Connecticut G. S., section 583 ; NewJersey, G. S., p . 2588 ; Vermont P . S., section 1448 ; Michigan C. L-,
section 10025. The Michigan law gave a right of action without
abolishing the common law rights of action against the members. The
highest state court decided this was constitutional. United States Heater
Company v. Iron Molders' Union, 129 Michigan 354, or 88 Northwestern
889. It is probable that the courts will accept vocational associations as
legal entities before they accept business partnerships as legal entities.
But this change, too, is slowly under way. Some states have statutes
which allow partners to be sued either as individuals or as a firm. See
FOSTER AND MAGRUDER, " J u r i s d i c t i o n
over Partnerships "
(1924), 37
Harvard Law Review 793.
5
For instance, Iron Molders' Union v. Allis-Chalmers
Company
(1908), 166 Federal 45, or Circuit Court of Appeals 631.
6
United Mine Workers v. Coronado Coal Company (1925), 268 United
States 295, Or 45 Supreme Court 551. The highest court of Arkansas has
refused to endorse this principle. The lower court had put the union's
funds in the hands of a receiver. The Supreme Court held that an associa-
UNITED S T A T E S OF AMERICA
65
in whatever was done, and it could only sue or be sued in the names
of its members, and their liability had to be enforced against each
member. Pickett v. Walsh, 192 Mass. 572 ; Karges Furniture Co. v
Amalgamated Woodworkers' Local Union, 165 Ind. 421 ; Baskins v. United
Mine Workers (Ark.), decided 7 Nov. 1921 (234 S. W. 464). But the
growth and necessities of these great labor organizations have brought
affirmative legal recognition of their existence and usefulness and provisions for their protection, which their members have found necessary.
Their right to maintain strikes, when they do not violate the law
or the rights of others, has been declared. The embezzlement of funds
by their officers has been especially denounced as a crime. The socalled union label, which is a quasi trade-mark to indicate the origin
of manufactured product in union labor, has been protected against
pirating and deceptive use by the statutes of most of the States, and in
many States authority to sue to enjoin its use has been conferred on
unions. They have been given distinct and separate representation
and right to appear to represent union interests in statutory arbitrations,
and before official labor boards. We insert in the margin an extended
reference ', furnished by the industry of counsel, to legislation of this
kind. More than this, equitable procedure adapting itself to modern
needs has grown to recognize the need of representation by one person
of many, too numerous to sue or to be sued (STORY, Equity
Pleadings,
8th ed., secs. 94, 97 ; Sí. Germain v. Bakery Union, 97 ¡Wash. 282 ;
Branson v. Industrial Workers of the World, 30 Nevada 270 ; Barnes v.
Chicago Typographical
Unions, 232 111. 402) ; and this has had its.
influence upon the law side of litigation, so that out of the very necessities
of the existing conditions and the utter impossibility of doing .justice
otherwise, the suable character of such an organization as this has come
to be recognized in some jurisdictions, and many suits for and against
labor unions are reported in which no question has been raised as to the
right to treat them in their closely united action
and functions as
artificial persons capable of suing and being sued 2.
tion cannot be sued. United Mine Workers v. Bourland (1925), 277
.Southwestern 546.
1
At this point the report lists statutes and decisions covering the
following points :
1. Legalisation of labour unions and labour combinations.
2. Exemption from anti-trust laws by statute or judicial
decision.
3. Right given to labour unions to sue to enjoin infringment of
registered union label or trade mark.
4. Unauthorised use of registered union label or trade mark
made an offence.
5. Unauthorised use of union card, badge, or insignia, made
an offence.
6. Right to participate in selection of membership of boards of
arbitration in labour controversies.
7. Right to have members' unions on board of arbitrators.
8. Embezzlement of funds of labour unions made a special
offence.
9. Bribery of union representatives made an offence.
10. All public printing to bear union label.
Such statutes are reported in United States Bureau of Labor Statistics, Bulletins 370 and 403.
3
United Mine Workers v. Coronado Coal Company (1922), 259 United
States 344, 385.
Freedom of Association
66
FREEDOM OF ASSOCIATION
A leading commentator on the Supreme C o u r t ' s dictum that
labour unions are liable under the anti-trust laws suggested t h a t :
To have held, categorically, that a trade union has no legal standing
and no legal responsibility, would, in the very nature of things, have
brought very serious consequences to its leaders and its rank and file, no
less than to the public. Complete immunity for all conduct is too dangerous an immunity to confer upon any group.
Psychologically, such
a victory would have wreaked its vengeance upon the union and its
leaders ; and it would have been found so intolerable to the feeling
of the general public that in seeking to withdraw the immunity public
opinion would have gone beyond the dictates of reason, to the injury
of common interest in labor's cause '.
I t has been thought t h a t this m a k i n g unions liable for damages
would cut down the use of the alternative remedy of the injunction s .
There is no evidence t h a t there are fewer injunctions or more awards
of damages. Customarily, when a court of equity has taken jurisdiction and granted an injunction against an association instead of
telling the complainant to sue for damages at law, it has given as its
reason that the damage would be irreparable at law, since ( i ) m a n y
suits against many individuals would be needed, (2) the individuals
are insolvent, and/or (3) the damage would be too hard to estimate.
Courts of equity cannot now usually give the first two reasons.
T h e y can still give the last reason.
A number of states have special corporation laws authorising the
incorporation of labour unions \ T h e United States has a law
authorising the incorporation of national trade unions 4 . I t has been
used by a few small unions 5 . Very few labour unions are incorporated *.
1
Felix FRANKFURTER : " The Coronado Case ", 33 Yale Law Journal
330. See also 31 New Republic 328, 10 California Law Review 506. 15
Monthly Labor Review 147-152, July 1922.
2
See MASON : Organized Labor and the Law, pp. 231-232.
* United States Bureau of Labor Statistics Bulletins 370 and 403
report such laws, indexed under " Labor organizations, incorporation,
regulation, etc. ".
4
Act of 29 June 1886, United States Compiled Statutes of 1916, sections 8908-8912.
5
The Knights of Labor, incorporated in 1901 ; the International
Geneva Association (hotel and restaurant executives), 1907 ; Italo-American Federation of Musicians, 1909 ; and one or two others.
' Labour unions occasionally form subsidiary corporations for special
purposes such as dealing in insurance, owning buildings, or banking. It
has been suggested that segregating their mutual aid funds and the like
in the treasuries of separate corporations might leave less of their money
exposed to damage suits.
í>7
UNITED STATES OF AMERICA
I n IQ14 Professor A d a m s said :
The labor leader opposes incorporation on a number of grounds. He
believes that it will lead to litigation, and he fears to match the labor
organization with the employers' association in litigation because he
knows that the best legal talent of the country is closely affiliated with
the employers, and because, in his opinion the courts are unconsciously
biassed against the methods of organized labor. Behind his opposition to
incorporation, as behind the advocacy of the men who champion incorporation, is the feeling that the present status gives a minimum of
responsibility with a maximum of power '.
Responsibility
of Member
and Union for One
Another
Injunctions.
— I n t h e case of picketing during a strike, which
is the typical case involving an unincorporated vocational association,
the legality of t h e joint undertaking is usually judged by t h e means
used. These means are usually t h e acts of individuals, perhaps in
intimidating employees. If the court finds that they are acts which
should be enjoined, it m a y enjoin the union, unless it should appear
that t h e individuals were not connected with t h e union 2 . T h e
union often claims that t h e persons who were violent or intimidating
are not members, especially when t h e strike is in a large city a n d
m a n y persons a r e on strike. I n t h e cloak strike in N e w York City
in 1926 the judge w h o continued t h e temporary injunction traced t h e
connection between t h e pickets and t h e union by pointing out t h a t
" on several occasions h u n d r e d s of the strikers, or so-called pickets,
have been arrested and brought before city magistrates 3 , where it
would appear t h a t in every instance their fines have been paid b y
1
T. S. ADAMS and H . L. SUMMER :
Labor Problems ;
New York,
Macmillan, 1914, p. 274. In the Monthly Review of the National Civic
Federation for April 1903, there was a symposium on the subject of union
incorporation. A study of the subject from the legal point of view is
Forrest Revere BLACK : Should Trade Unions and Employers'
Associations be made Legally Responsible ? Boston, 1920, National Industrial
Conference Board, special report No. 10.
z
In some cases unions have been held liable for the unauthorised
illegal acts of union members where ratification or sanction of the illegal
acts on the part of the unions could be proved. Such ratification may
be implied as well as expressed. Where the unauthorised, illegal acts
are of a sufficiently serious nature, ratification has in some cases been
implied from the tacit acceptance by the union of the benefits of the
illegal acts and the failure of the union officers to whose attention the
matter has been brought to disavow the illegal acts or discipline the
offending members (SAYRE : Cases in Labor Law (1922), p. 241).
' For crimes and misdemeanours, before the injunction was issued,
68
FREEDOM OF ASSOCIATION
the defendant unions " \ If the union is shown to be connected with
the unlawful act the court may issue an injunction against the union
t h r o u g h its officers. I t may specifically name certain officers as
individuals. I t may specifically name certain members. I t may add
" their agents, servants, members and representatives and each of
t h e m " 3 . I t may add " all persons combining, conspiring, agreeing,
or arranging with them, and all persons whomsoever " 3 .
Courts sometimes carefully limit the persons named in their
injunctions. I n a picketing case in 1906 the complaint named 270
strikers. T h e court named in its order only those who had been
shown to have intimidated employees. I t said that to join the others
in the order would p u t a stigma upon t h e m and might make them
liable for court c o s t s 4 . A California case in 1908 decided that
threats of violence to strike-breakers by two or three union members
should not have led to enjoining the association 5 . I n a recent case
against the United Mine W o r k e r s it appeared that there had been
acts of violence by union members, but the members were not named
in the complaint, and the K e n t u c k y court refused to enjoin the association as a whole 6. A glass manufacturing company in West Virginia
was unable to secure service upon the national officers of the F l i n t
Glass Workers, who were trying to unionise its plant. I t then tried
to get an injunction against the union by serving papers on members
of the union in a near-by town. I t obtained an injunction from a
federal court, since the members lived across the line in Ohio. T h e
circuit court of appeals in 1916 said that the union should not have
been enjoined, since.the members who were named had not authorised the wrongful acts, nor participated in them and were not
responsible for them T.
On the other hand, a national union which organised a local strike
1
Industrial Council of Cloak, Suit and Skirt Manufacturers, Inc., v.
Sigman ; New York Law Journal, 30 Sept. 1926.
2
The same.
3
United States v. Hayes, United States District Court for the district
of Indiana, 8 Nov. 1919, unreported. From the injunction ending the
national soft coal strike of 1919.
1
Pope Motor Car Company v. Keegan (1906), 150 Federal 148.
5
Parkinson v. Building Trades Council (1908), 154 California 581.
603.
6
Diamond Block Coal Company v. United. Mine Workers (1920), 188
Kentucky 477, 489.
7
Hill v. Eagle Glass and Manufacturing Co. (1915), 219 Federal 719.
The federal Supreme Court upheld this point ; it reversed the decision
on other grounds.
UNITED STATES OF AMERICA
69
may be enjoined if unlawful means are used '. And in one case the
district organisation of the Machinists was joined in the injunction
because it contributed money to a local strike in which there was
unlawful picketing 2 . I n a leading case the union instructed its
members to confine themselves to persuasion. It officially abandoned
picketing. T h e court held ¡(1908) t h a t this did not free it from
responsibility for the spontaneous mass picketing that took place '.
However, in a case where the local union of the United H a t t e r s used
unlawful means, the New Jersey court refused to enjoin t h e national
union, because there was no evidence that it had encouraged the
unlawful acts. T h e national president was found to have encouraged
t h e m (without acting officially for the national union) and he was
enjoined 4 .
T h e usual way of enforcing an injunction against a union is to
arrest members who violate its terms. If they are charged with
contempt and the judge finds them guilty they may be fined or
imprisoned or both. T h e union often pays their fines. If the union
violates it, it may be fined 5 . If its treasury should be too small,
the property of the members m a y be attached 4 , unless they can show
that they did not in effect ratify the illegal acts. Instead of fining
the union the court may fine or imprison its officers, if they have
caused it to violate the injunction '. A union and its officers have
been convicted of contempt because of the acts of members of the
union \ But it has been held that a union official was not guilty
of contempt who remained silent on hearing an inflammatory speech
which violated the current injunction *.
1
For instance, Michaels v. Hillman (1920) 112 Miscellaneous 395, 412
(lower court of New York).
2
Jones v. Mäher (T909) 62 Miscellaneous 388 (lower court of New
York) ; affirmed in 141 Appellate Division 219.
* Goldfield Consolidated Mines Company v. Goldfield Miners' Union
(1908), 159 Federal 500.
' Connett v. United Hatters, 76 New Jersey Equity 202, 211.
5
Barnes and Company v. Chicago Typographical Union, 232 Illinois
404, or 83 Northeastern 932. In this case the union failed to object early
enough that it could not be sued as an association.
6
Patch Manujacturing Company v. Capeless, 79 Vermont 1, or 63
Atlantic 938 ; Patterson v. District Council, 31 Pennsylvania Superior 112 ;
Branson v. Industrial Workers of the World, 30 Nevada 270, or 95 Pacific
3547
See United States v. Debs, 64 Federal 724, and In Re Debs, 158
United States 564, or 15 Supreme Court 900.
8
Utz and Dunn Company v. Sheridan, 201 New York Supplement 46.
' L. Balk Co-operative Company v. International Fur Workers Union,
Court of Errors and Appeals of New Jersey, 121 Atlantic 703.
70
FREEDOM OF ASSOCIATION
If a union member takes part in a strike which a court holds to
be an unreasonable restraint of trade, and if an injunction is issued
and he violates it, (i) he is guilty of criminal conspiracy, (2) he has
injured the company and is liable for damages, and (3) he may be
punished for contempt of court. If the undertaking is also in
restraint of interstate trade he is liable in the same three ways in
the federal jurisdiction. Leaving aside arrests for misdemeanors,
such as " blocking traffic " and " disorderly conduct ", in practice
most such convictions are for contempt, and in only one of the two
jurisdictions.
Damages. — In case damages are assessed against individuals for
injury to a company's business or to a non-union worker who has
been kept from getting a job, the union of which they are members
is under no legal obligation. In the chief case, the Danbury Hatters
case l , the plaintiff employer after long legal delay received
$234,192.56 in triple damages. Of this, $59,192.56 was bank savings
of the 186 convicted members of the United Hatters. The American Federation of Labor had fostered the practice of boycotting,
which led to the damages. It issued two appeals for help for the
Hatters to its membership, and turned over to the Hatters
$214,891.20. After the federal Supreme Court rejected the demurrer
in 1908 and the case went to the jury in 1912, the judge told the jury
that they should fine those members of the offending union liable
who paid their dues and continued to delegate authority to their
officers to unlawfully interfere with the company's interstate trade in
such circumstances that they knew or " must have known " 2 that they
were authorising a boycott and that the officers were warranted in
the belief that they were acting in the matter within their delegated
authority. This definition of responsibility distinguishes business
partners from the members of labour unions and other unincorporated
associations, in which " only those members are liable who expressly
or impliedly with full knowledge authorize or ratify the specific
acts in question 3 ".
In case damages are assessed against the association, its funds
are attached *. There have been cases in which these did not
1
Loewe v. Lawlor (1908), 208 United States 274, (1915) 235 United
States 522.
3
Lawlor v. Loewe, 209 Federal 721, 727, 728 (Circuit Court of
Appeals).
3
WRIGHTINGTON : Unincorporated Associations, p. 275.
4
Purvis v. Carpenters, 214 Pennsylvania St. 348, or 63 Atlantic 585.
UNITED STATES OF AMERICA
71
satisfy t h e j u d g m e n t a n d the property of members was attached also \
Damages have been assessed at once against a union and its business
agent*. I n a case of a broken contract the members were held liable 3 .
A member who complained of a wrong done by a n agent of the
association was told that he h a d no redress against the association
b u t only against the a g e n t 4 .
A dictum of t h e federal Supreme Court in the Coronado case
in 1922 dealt with the liability of associations. A coal operator h a d
tried to introduce the open-shop and non-union workers into a coal
region t h a t w a s solidly organised. T h e r e was violence and murder
and in the course of it the Coronado company's property was
injured. I t sued for triple damages under the federal anti-trust laws.
T h e court decided that it was a local strike and so had little to do
w i t h interstate commerce ; it dismissed the case. I n passing it
pointed out that the constitution of the United Mine W o r k e r s drew
a clear line between local strikes and those begun with the consent
of the national union and supported by Lt ; that this was a local
affair ; the national union could not be held responsible, even t h o u g h
some of its officers h a d expressed approval of the strike.
The
district organisation of the union had also disclaimed responsibility
for the violence. I t said t h a t there was a spontaneous popular
uprising, in which union members were necessarily involved. T h e
court found t h a t t h e v district union had called the strike and had
aided the uprising ; that it would have been liable for damages if
the mining of coal had been interstate commerce 5 . I n 1925 the
case again came before the federal Supreme Court. N e w evidence
had been introduced that one of the chief reasons for the hostility
of the district organisation was t h a t t h e mines in question would,
if they were r u n non-union, compete substantially with union mines
for the interstate commerce in soft coal and that this m i g h t cause
union mines to go non-union. T h e court indicated that this evidence brought the h a r m done to the coal mines u n d e r t h e federal
anti-trust laws. I t sent the case back to the district court for fur-
1
2
3
1
Inbusch v. Farmeli, 66 United States 566.
Wyeman v. Deady, 79 Connecticut 414, or 65 Atlantic 129.
Lewis v. Tilton, 64 Iowa 220, or 19 Northwestern 911.
Martin v. N. P. B. Association, 68 Minnesota 521, or 71 Northwestern
701.
5
United Mine Workers v. Coronado Coal Company
States 344.
(1922), 259 United
12
FREEDOM OP ASSOCIATION
ther action \ I n case triple damages (about $600,000) are awarded
to the companies, the treasury of the district union will be attached,
a n d whatever property t h e members of the union in Arkansas
and Oklahoma have.
Rights
of
Membership
Membership in an association is usually held informally, without
a contract. I n the eyes of the law the membership relation is a
contract relation. Many labour unions are also benefit societies and
have financial contract relations with their members. If a member
drops out he loses his interest in the benefit and other funds, which
does not happen in partnerships. A number of employers' associations
have used membership contracts'suggested by the l e a g u e for Industrial Rights, in which they agree not to sign an agreement with the
union. Their intention was to create a legal d u t y in the labour
u n i o n s not to attempt to induce any employer to violate his contract
and operate a union shop.
T h e courts have refused to help an association enforce its rules
w h e n they found that there were n o property r i g h t s at stake 2 .
T h e y have enforced them when they found that the member stood
to be injured in law' 3 . A court has refused to secure to an association t h e continued membership of a n i n d i v i d u a l 4 . Similarly it
has been held that a union had no property r i g h t s in its members
as against another union. T h e second union was using criminal
m e a n s to establish itself in the place of the plaintiff union, which
asked for an injunction. T h e court said that it could grant an
injunction only if a property interest were shown. However, it
added that the members of the union might sue individually °.
1
Coronado Coal Company v. United Mine Workers (1925), 268 United
States 295, or 45 Supreme Court 551.
3
O'Brien v. Musical M. P. and B. Union, 64 New Jersey Equity 525,
or 54 Atlantic 150. Screwmen's, etc., Association v. Benson, 75 Texas
555, or 13 Southwestern 3S0. Jetton-Dekle Lumber Company v. Mather, 53
Florida 969, or 43 Southern 590.
3
Steinert v. Carpenters and Joiners, 91 Minnesota 189, or 97 Northwestern 668. Flaherty v. Portland Longshoremen's Benevolent Society, 99
Maine 253, or 59 Atlantic. Brennan v. Hatters, 73 New Jersey Law 729,
or 65 Atlantic 165. Thompson v. Locomotive Engineers, 41 Texas Civil
Appeals 176, or 91 Southwestern 834.
1
O'Brien v. Musical Protective Union, 64 New Jersey Equity 525, or
54 Atlantic 150.
5
Silver State Council v. Rhodes, 7 Colorado Appeals 211, or 43
Pacific 457.
UNITED STATES OF AMERICA
73
A court has held that t h e rules of an association must not
contravene the laws or take away the fundamental rights of members l .
W h e n a rule was challenged by a member to whom it had been
applied, the court passed on the question whether the rule had been
adopted in accordance with the constitution of the association 2 . I n
another case the court decided that the u n i o n ' s vigilance committee
had not given a foreman-member a fair hearing according to the
union rules. T h e y had caused him to be out of work, since he
worked in a closed union shop. T h e court allowed him damages *.
Members of a labour union have secured an injunction against
certain acts of their union on the ground that they were outside its
functions 4 . I t has been held that the existence of the contract of
membership did not give some of the members of a union a right of
action against the others for breach 5 of the contract. Some members
w h o were injured by the negligence of an employee of the union were
not allowed a right of action against the others, but only against
the employee 6 . But one lower court dissolved a union which had
rules which restrained trade u n d u l y . P a r t of the membership h a d
requested it in order to withdraw without losing their interest in the
u n i o n ' s funds 7. One member of a union was told that he should not
come to the court until he had exhausted the means of redress offered
under the rules of the union 8 . But in a suit for damage on a property
right another court held that the claim could be made in court even
if the member had not appealed to the rules of the union 9 . I n a
similar case the union's defence was that it had restored the
complainant to membership and that the union rules provided adequate
1
Otto v. Journeymen Tailors, 75 California 308, or 17 Pacific 217.
Green v. Felton, 42 Indiana Appeals 675, or 84 Northeastern 166.
3
Brennan v. United Hatters (1906), 73 New Jersey Law 729.
4
Flaherty v. Portland Longshoremen's Benevolent Society, 99 Maine
253, or 59 Atlantic 5S.
5
McMahon v. Rauhr, 47 New York 67.
11
Martin v. ¿V. P. B, Association, 68 Minnesota 521, or 71 Northwestern 701.
7
Kealey v. Faulkner, 18 Ohio S. and C. P. Decisions 498.
8
Harris v. Detroit Typographical Union, 144 Michigan 422, or 10S
Northwestern 362. A structural Ironworkers local was suspended and its
officers sued the president of the national union for damages and an
injunction. The court held that they must first exhaust the remedies
offered by the union constitution, since the members could transfer to
other locals and so would not be greatly damaged by the delay. O'Connor
v. Morrin (1919), 109 Miscellaneous (New York) 379.
3
St. Louis Southwestern Railroad Company v. Thompson, 102 Texas
89, or 113 Southwestern 144.
2
74
FREEDOM OF ASSOCIATION
means for redressing grievances, but the court held the member could
sue for damages because of being lay ed off from his job after the union
suspended him \ W h e n a member did appeal first to the union, it
was held by the court that he had not waived his legal rights \
T h e courts have refused to help collect fines against members of
associations when they found t h a t the fines were excessive 5 . T h e
refusal held in the case of a fine which was assessed because the
member bid less than the union scale on a piece of work*. Employers
have secured injunctions against unions fining their members,.on the
g r o u n d that it hindered their free access to the labour m a r k e t s .
Violation of the membership agreement (that is, of the union
rules) may be punished by expulsion 6. But members are protected
against improper expulsion and against other actions which deprive
t h e m of valuable status or of property rights 7. Courts have granted
injunctions commanding associations to restore certain persons to
membership. I n one case the court found t h a t the rules governing
expulsion were not adequate t o protect the member's rights and
g r a n t e d damages and an injunction 8 . I n other cases the court has
found t h a t the expulsion did not take place according to the rules of
the union ' .
554-
1
Campbell v. Johnson, 167 Federal 102, or 92 Circuit Court of Appeals
2
Blanchard v. District Council, 77 New Jersey Law 389, or 71 Atlantic
1131.
s
Trade associations : Martell v. White, 185 Massachusetts 255, or
69 Northeastern 1085 ; Boutwell v. Marr, 71 Vermont 1, or 42 Atlantic 607.
Labour unions : Willcut and Sons Co. v. Bricklayers, 200 Massachusetts
n o , or 85 Northeastern 897 ; Glatzow v. Buening, 106 Wisconsin 1, or
81 Northwestern 1003.
4
More v. Bennett, 140 Illinois 69, or 29 Northeastern 888.
5
Willcut and Sons Co. v. Bricklayers, 200 Massachusetts n o , or 85
Northeastern 879. Jersey City Printing Co. v. Cassidy, 63 New Jersey
Equity 759, or 53 Atlantic 230. 'Longshore Printing Co. v. Howell, 26
Oregon 527, or 38 Pacific 547.
6
O'Brien v. Musical Protective Union, 64 New Jersey Equity 525, or
54 Atlantic 150.
7
The same : Weiss v. Musical Protective Union, 189 Pennsylvania St.
446, or 42 Atlantic 118 ; Steinert v. United Brotherhood, 91 Minnesota
189, or 97 Northwestern 668 ; Cotton Jammers v. Taylor, 23 Texas Civil
Appeals 367, or 56 Southwestern 553.
8
People v. Musical M. P. U., 118 New York 101, or 23 Northeastern
124.
3
Weiss v. Musical Protective Union, 189 Pennsylvania 446, or 42
Atlantic 118. Cotton Jammers v. Taylor, 23 Texas Civil Appeals 367, or
56 Southwestern 553. Dingwall v. Association, 4 California Appeals 565,
or 88 Pacific 597.
UNITED STATES OF AMERICA
75
I n another case the plaintiffs had been expelled after the
plumbers' union had tried to force them, as public officers, to vote
for its candidate for plumbing inspector. T h e y secured reinstatement
and damages for the injury done them because they were unable
to get jobs after they were expelled \ F r a u d in the application for
membership was found to be a reason for refusing the c o u r t ' s help to
expelled members '.
1
Schneider v. Local Union No. 60, 116 Louisiana 270 (1905).
Porkinson Co. v. Building Trades Council, 154 California 581, or
98 Pacific 1027 ; Krause v. Sander, 122 New York Supplement 54 (a lower
court case).
2
CHAPTER III
THE OBJECTS AND ACTIVITIES OF TRADE UNIONS
Unions are organised mainly for collective bargaining and mutual
benefit. Their political activities are of relatively little importance
and they are rarely called on to co-operate with governmental
agencies. They do not foster consumers' co-operatives, except for
labour banks. Their benefit and insurance payments are very small
compared with those of " fraternal " insurance clubs.
Some unions are extending collective bargaining to include cooperation with management on production problems. In most trades
where unionism exists, however, collective disputes still accompany
collective bargaining. The best-known form of government intervention in these disputes is a civil law intervention through an
injunction. But the more important sort of intervention is by city
or state police. Some companies c^so use private police.
Strikes condemned by courts are usually objected to because of
the means used, mostly because the picketing borders on intimidation.
The usual practice is to require the union to post only one or two
" missionaries " at each location. If the strike is reinforced by a
boycott, it is usually held that this too is an unfair means of bringing pressure to bear, since the pressure is not only applied to the
immediate antagonist but also involves third parties. Workers may
usually not strike in order simply to help a strike of other unionists
in another establishment.
A dispute may also be condemned by a court because it does not
approve of its purpose, and legislatures have power to condemn
unreasonable classes of strikes. Strikes for the closed shop are
usually illegal, though many of the decisions on this point were
made in cases in which a non-union worker was given damages
from the union for his exclusion from work. Picketing to unionise,
when there is no strike, is often illegal. Unionising activities are
often held unlawful when the workers to be solicited have agreed
UNITED STATES OF AMERICA
77
with their company not to join a union or to join only t h e union
originated by t h e company. Strikes are t h e more readily condemned
if they seem to have a revolutionary tinge.
Strikes on public utilities a r e probably viewed with somewhat
more suspicion by t h e courts t h a n strikes in other industries a r e .
Strikes by public servants are nearly u n k n o w n .
§
1. —
Kinds
PARTICIPATION
of Objects
IN
SOCIAL
and
Activities
INSTITUTIONS
T h e practice of calling on labour to share in public conference or
appoint representatives to governmental committees came into vogue
in 1917-191S, during the war. I t h a s not been continued, partly
because t h e occasion for appointing frequent governmental boards to
deal with industrial subjects passed with the war. At t h e e n d of 1919,
while the labour market was still tight, t h e President of t h e United
States appointed an Industrial Conference for reconstruction.
It
included representatives of labour unions, of employers' associations,
and of t h e public. T h e union representatives introduced a resolution
endorsing collective bargaining. A majority of t h e employers' association representatives refused to vote for it and the Conference w a s
deadlocked. T h e union representatives withdrew and t h e conference
broke up l . A new Conference met early in 1920, but t h e plan of
partisan representation was dropped 2 .
F o r t y American states a n d territories make some regular
provision for industrial arbitration or mediation. Most of t h e boards
contemplated by t h e statutes are not active or exist only on paper.
Of these forty states there are fifteen which directly recognise in this
part of their laws either labour organisations or employers'
organisations or both. In t e n jurisdictions members of either or both
types of association, or persons recommended by them, are given a
place on continuously existing, state-wide boards. I n four jurisdictions such persons are designated to serve on temporary, ad hoc
conciliation or arbitration bodies.
Most of t h e other twenty-five arbitration and conciliation laws
1
Proceedings of the First Industrial
58, 91, 141, 174, 228, 237, 278-279.
See
Conference,
also
Oct. IÇIÇ, pp. 53,
NATIONAL
INDUSTRIAL
CONFERENCE BOARD : The Vital Principles in the Industrial Conference
at Washington.
2
Preliminarj' statement of President's Industrial Conference, to
Monthly Labor Review 60, Jan. 1920.
78
FREEDOM OF ASSOCIATION
call for representation of the parties at interest by requiring the
appointment of persons " interested in ", " affiliated with ", or
" representing " either " labor " or " employers " or both \ They
do not specify that associations shall be represented. The Railway
Labor Act of 1926 creates a board of mediation which is not required
to have partisan representatives. But the boards of arbitration which
are set up under the Act include arbitrators selected by the parties to
the arbitration 2. This follows a usual practice in (private) labour
arbitration in the United States. This Act was drawn up by the
railroad unions and agreed to by the managers' association, and was
passed at the request of both sides. It has no penalty clause. Its
enforcement depends upon the railroads and the railroad unions
conferring in good faith as the statute prescribes, though the award
of an arbitration board set up under the Act must be filed with the
local federal court and the court must enter judgment in accordance
with the award.
While labour unions and their members as such have no share
in administering legislation, it is customary in most states to appoint
unionists to the headship of the bureaux of labour statistics and
departments of labour created by the various states. The labour
unions have sponsored the laws creating these bodies, and positions
on their staffs are usually given to union members as patronage.
MUTUAI. BENEFIT ACTIVITIES
Labour unions frequently have death benefit provisions, sometimes sickness benefits, sometimes life insurance. The American
Federation of Labor in 1926 founded a Union Labor Life Insurance
Company. The Electrical Workers' Union has a similar subsidiary,
the Union Co-operative Life Insurance Company. The Amalgamated
Clothing Workers, the Ladies' Garment Workers, the Amalgamated
, Lace Operatives, the Cloth Hat, Cap, and Millinery Workers, and the
United Wall Paper Crafts have organised unemployment insurance
funds 3. A number of company unions have mutual aid as their chief
1
UNITED STATES BUREAU OF LABOR STATISTICS : Bulletin 370, " Labor
Laws of the United States ". See the laws indexed in that Bulletin under
" Arbitration and Mediation ".
2
Railway Labor Act, approved zo May 1926, section 7, second part
Reported in 22 Monthly Labor Review 1209, June 1926.
3
7 American Labor Year Book 137 (1926).
UNITED STATES OF AMERICA
79
purpose.
A n extension beyond the ordinary practice of mutual aid
is undertaken by the International Ladies' Garment W o r k e r s in their
Union H e a l t h Center in New York City. Several unions have
sanitoria and homes for aged members.
T h e American Federation of Labor has made a study of benefits
paid in 1925 by the international unions belonging to the Federation
and by the railroad train and engine service brotherhoods. T h i s
covers substantially the entire labour movement in t h e United States
a n d Canada. I t omits benefits paid by local unions and b y dual
unions \ I t records the following payments :
D e a t h benefits
Old age benefits
S i c k benefits
U n e m p l o y m e n t benefits
D i s a b i l i t y benefits
Miscellaneous
T o t a l , 1925
11,020,653
2,823,145
1,842,293
1,658,327
950,963
2,220,932
S 20,516,313
Over 10,000,000 persons in the United States are covered by insurance t h r o u g h fraternal orders, m a n y of which are formed chiefly for
m u t u a l insurance. T h e average policy is about $1,000. T h i s system
of insurance covers a large part of the working population. Compared
with it, the benefit system of labour unions is small. A union death
benefit is usually a few h u n d r e d dollars.
T h e consumers' co-operative movement in the United States is
not nearly as prominent as in Europe. Labour unions usually have
no official connection with co-operatives even in cases where cooperatives exist and the membership overlaps, with labour union
membership. T h e train-service railroad unions have advocated cooperation in their periodicals and there is a large n u m b e r of cooperators among their members. T h e r e are even more among t h e
miners. T h e national group most prominent in co-operation in the
United States is t h e F i n n s , m a n y of whom are engaged in iron m i n i n g
in the north-central states.
F e w countries except the United States have b a n k i n g systems
with small units. T h i s system in the United States has allowed t h e
formation of labour banks. I n 1926 there were thirty-four, w i t h
over $125,000,000 in total resources. T h e r e are twelve labour investment companies 2 .
1
Notably the unemployment benefits paid by the Amalgamated
Clothing Workers in co-operation with the employers.
1
8 American Labor Year Book 172 (1927). See also 8 Law and
Labor 83-87, March 1926 (League for Industrial Rights, employers).
SO
FREEDOM OF ASSOCIATION
M a n y unions maintain emplo3'ment exchanges.
A group of clothing unions in N e w York City undertook to
build a block of model tenements in 1925. I t surrendered the
enterprise t o a charitable corporation. A recent statute of N e w York
state created the State Board of H o u s i n g , which has power to
c o n d e m n land to build model t e n e m e n t s . T h i s commission expects
to undertake building operations in co-operation with labour unions.
I n 1928 the Amalgamated Clothing W o r k e r s opened a co-operative
apartment house for unionists. T h e Locomotive Engineers have
acquired a tract of land in Florida.
Employers' associations often sponsor plans of apprentice
training, and sometimes labour unions co-operate in carrying them
out \ A few unions carry on vocational education on their own ".
COLLECTIVE
BARGAINING
Associations have the power to make agreements which cover
their members collectively. T h e y are signed b y t h e officers. T h e
action of the officers must have the authorisation or ratification of
the association. Some unions give their officers complete power.
Others hold conventions (in the case of district agreements) or general
meetings (in the case of local agreements) to decide whether to ratify
the action of the officers.
Sometimes the employers are unwilling to recognise the labour
union b u t agree t o sign a collective agreement. I n such cases t h e
leaders of the workers m a y sign the agreement on behalf of the
workers instead of on behalf of t h e union. T h e most prominent case
of this was in the collective agreement with the hard coal operators,
which dated from 1903. I t was not until 1920, by t h e ruling of the
federal Anthracite Commission of 1920, that t h e agreement was signed
by the presidents of the three hard coal district unions as officers of
t h e United Mine Workers.
A n extension of collective bargaining has appeared in recent
years under the title " union management co-operation ". T h e most
prominent examples are those undertaken b y t h e Federated Shop
1
See, for instance, Apprenticeship : Information and Experience in
the Development of Industrial Training, published by the Department of
Manufactures of the Chamber of Commerce of the United States (a nongovernmental body) in Washington in 1926.
2
See, for instance, " Apprenticeship Training by the International
Typographical Union ", an article by Lyman O D E L I in 34 American
Fedcrationist 41, Feb. 1927.
UNITED STATES OF AMERICA
81
Crafts on the railroads and by the Amalgamated Clothing Workers.
This sort of co-operation in relation to production is not new, since
here and there there have always been shop committees of unionists
working with the foreman or superintendent. When the companyunion movement began, during the War, it usually took the form of
a works council or contemplated conferences between workers' delegates and management about how to better output.
Collective bargaining often leads to combative measures. When
the employing company refuses to negotiate, combative measures
precede collective bargaining, or are the only manifestation of
collective bargaining. These measures include the strike and the
boycott, often aided by picketing. They are the elements of union
activity which bring unions most often into court. It is in the field of
collective disputes that the law limits the freedom of associations to
carry out their purposes. The next two sections tell what sort of
limits are imposed.
The union label is a combative measure which is still used, but is
no longer prominent enough to be a subject of adjudication. It came
into prominent use in the second half of the nineteenth century, but it
was rarely an effective influence in unionising an industry. When
labels were first introduced, the labour unions sought to keep nonunion companies from using them by suing for damages.
It was usually held that the union did not have the same interest
in its label as a company did in its trade-mark. This, among other
disabilities, led labour unions to look favourably on incorporating. A
general movement toward incorporating was forestalled by the actions
of state legislatures, which began to remove the disabilities which
prevented a labour union from recovering its funds from an embezzling
officer and from suing on its union label. At present each state has
a statute under which unions may sue for damages (and an injunction)
to protect their property rights in their labels. The general law
of trade marks is federal law, but there is no federal statute on union
labels, and they are not protected in the federal District of Columbia.
The American Federation of Labor has a Union Label Trades
Department, and an auxiliary organisation, the Women's International
Union Label League. Union labels are rarely used by unions outside
the American Federation of Labor. There are eight union labels
which are fairly prominent to-day. One is the label of the Allied
Printing Trades, which include the compositors, the pressmen, the
stereotypers, the bookbinders, and the photo-engravers. They have
a small label which is printed on the goods turned out if the customer
Freedom of Association
6
82
FREEDOM OF ASSOCIATION
wants it because his printed matter i s to go before union members.
T h r e e states have passed laws requiring union labels on public
printing \ City ordinances t o t h e same effect have come before courts
and have been declared u n c o n s t i t u t i o n a l 2 . T h e label of t h e United
Garment Workers appears on most work-clothes. T h e companies are
dependent on the label to sell their goods t o union workers. T h e
Bakers' label is quite prominent. Some purchasers also look for the
Cigar Makers' label. Union barber shops have a card in t h e window.
Some retail butcher shops display a Meat Cutters' union card. T h e
Boot a n d Shoe Workers have a union stamp which m a y be used by
companies which have agreements w i t h them. T h e union stamp on
shoes would perhaps be more wide-spread except that there are several
rival unions i n t h e i n d u s t r y . T h e H a t t e r s u s e a label. Altogether
there are fifty-one unions that use labels, ten that use cards, and six
t h a t use t h e American Federation of L a b o r ' s label *.
A label which is n o t strictly a union label is t h e " Prosanis "
label introduced b y t h e Joint Board of Sanitary Control of the
w o m e n ' s clothing industry in N e w York City. I t may -be used by
shops (works) that have an agreement with t h e International Ladies'
G a r m e n t W o r k e r s , which is a party to t h e Board, a n d that maintain
the standards set u p b y t h e Board for t h e workers' health. I t was
introduced in t h e cloak trade in 1924 and in t h e dress trade in 1925,
and there was an effort to popularise t h e label among consumers. I n
this t h e object of t h e union was to better working conditions. T h e
object of the employers' associations on t h e joint Board w a s to keep
the smaller shops on a higher plane of competition.
§ 2. — Criminal Law and Policing in Collective Disputes
I t is a criminal conspiracy a t common law a n d / o r under state
statutes and/or under federal statute t o associate to h a r m t h e business
or occupation of a second party or to associate to benefit one's own
interests when it involves u n d u e h a r m to a second party or when it
involves u n d u e pressure upon a third party. S u c h acts are also civil
wrongs, for t h e usual judicial procedure is to enjoin them on the
1
Marland, annotated code, article 78, section 9. Montana, revised
code, section 260. Nevada, revised laws, section 4309.
2
Holden v. City of Alton (1899), 179 Illinois 318, or 53 Northeastern
556 ; Paterson Chronicle Company v. Paterson (1901), 66 New Jersey Law
129, or 48 Atlantic 589.
3
AMERICAN FEDERATION O F LABOR : Proceedings,
IQ26, p . 26.
UNITED STATES OF AMERICA
83
complaint of an injured party. If the acts continue the offenders may
be brought to punishment in a number of ways. (1) T h e r e might be
an indictment for criminal conspiracy. (2) If the separate acts are
acts which are in themselves criminal, s u c h as assault of employees
by pickets, the pickets may be arrested for assault and tried in a
police court. (3) Persons violating the injunction may be tried for
contempt of court. T h e reason given for the contempt charge is that
the authority of the court must be upheld a n d persons violating its
decrees must be punished. T h e action is b r o u g h t in the name of
the state and the offence is " criminal contempt ". T h e contempt
charge is also criminal in another sense : the act which constitutes
contempt is often a criminal act. Contempt cases have customarily
been tried without a jury, although it is usual to use a jury in
criminal trials. (4) T h e difficulties of carrying t h r o u g h a charge
of criminal conspiracy or even a charge of contempt of court have led
to the practice of arresting pickets on such charges as disorderly
conduct \ blocking the traffic, disturbing the peace, and t h e like.
These are minor criminal charges. T h i s custom is followed where
there is n o injunction limiting the strikers, b u t it is more certain to
be followed w h e n there is an injunction condemning the strike. If
the injunction forbids all picketing, on the ground t h a t any sort of
picketing would necessarily involve intimidation, it may become a
misdemeanor to remain too persistently near the plant or works or
shop involved. T h i s tendency is reinforced by the fact that a
n u m b e r of state legislatures and city councils have made picketing
a misdemeanour 2.
1
Merely picketing was held not to constitute disorderly conduct even
when there was no strike in force, in People v. Phillips, 245 New York
401, New York court of appeals, 1927.
2
See Alabama, Code 1923, section 3448 ; Colorado, Compiled laws,
1921, section 4162 ; Utah, Acts of 1919, special session, chapter 19. See
also laws of Kansas, Nebraska, Hawaii. See also Washington, Laws of
1915, chapter 181. Among the cities which have passed anti-picketing
ordinances are Anniston (Alabama), El Paso (Texas), Indianapolis and
Noblesville (Indiana), Oakland, San Diego, and San Francisco (California). The El Paso ordinance was held valid by the Texas Court of
Criminal Appeals in Ex parte Stout (1917) 198 Southwestern 167. The
Indianapolis ordinance was held valid by the Supreme Court of Indiana
in Walters v. City of Indianapolis (1922), 191 Indiana 671, or 134 Northeastern 482. See also Thomas v. City of Indianapolis (1924), 145 Northeastern 550. Portland (Oregon) adopted by referendum an anti-picketing
ordinance. It was declared unconstitutional by the state Supreme Court.
See Hall v. Johnson (1917), 87 Oregon 21, or 169 Pacific 515. Ex parte
84
FREEDOM OF ASSOCIATION
T h e police figures chiefly in limiting picketing and in regulating
public meetings. I n the arresting of pickets charged with disorderly
conduct and the like, the most diverse interpretations exist among
the police officials and police judges of what constitutes such offences. T h e standards m a y change from one precinct to another
in New York City \ I n Salem (Ohio) a company secured a federal
injunction against the city officials, who had ordered strike-breakers
from out of town to leave the city 2 . Picketing tactics also vary
widely, from a patrol of one person w h o carries a sign and makes no
attempt to speak to anyone, to gatherings of thousands of strikers
and their sympathisers. Prominent examples of mass picketing are
the strike of the Amalgamated Clothing W o r k e r s against the International Tailoring Company in New York City and Chicago in the
summer of 1925, the strike of the textile workers of Passaic (New
Jersey) throughout 1926, and the strike of the International Ladies'
G a r m e n t Workers in the cloak, suit, and skirt industry of N e w York
City in the summer of 1926. Mass picketing is treated as illegal by
the police. Recently charges have been made t h a t the police of N e w
York City permitted violence b y agents of labour unions in consideration of bribes \
Williams, i n Pacific 1035 (California), held that a city ordinance was
valid which forbade picketing to intimidate. City of St. Louis v. doner,
210 Missouri 503, or 109 Southwestern 30, held invalid an ordinance against
loitering which had been used to arrest pickets. See also In Re Schweitzer
(1917), 13 Oklahoma Criminal 154, or 162 Pacific 1134.
1
See New York City Police Department General Orders, No. 100,
1 Nov. 1918 : " . . . The number of pickets that ma}' be employed in
any specific instance will be left to the commanding officer " of the
precinct. Variation in the attitudes of police magistrates is illustrated in
K. H. CLAGHORN : The Immigrant's Day in Court, pp. 260-267. See also
C. G. HAINES : " Influences in the Decisions of Judges " (June 1902),
17 Illinois Law Review 96, 105, which refers to statistics of variation in
the number of cases dismissed under the various charges of misdemeanour.
2
Mullins Bady Corporation v. International Association of Machinists, federal district court for the northern district of Ohio. The company secured federal jurisdiction because it was a New York corporation.
The mayor, the chief of police, and the commissionher of public safety
were joined with the union as defendants.
3
The World (New York daily), 14 Jan. 1927, pp. 1-2. The charges
were made by a special committee of the American Federation of Labor
appointed to investigate the conduct of a strike early in 1926 by the
New York Joint Board of the International Fur Workers' Unions. The
New York Joint Board was at that time controlled by members of the
Workers (Communist) Party, to which the American Federation of Labor
UNITED STATES OF AMERICA
85
T h e privilege of public meeting ' is usually conditioned upon
the consent of the local government. T h i s usually has the power
to grant the privilege by licence. T h i s power is sometimes delegated
to the police. Permission may be withheld if the object of the
meeting is not approved or if a meeting is likely to lead to a public
disturbance, for instance in time of strike. If there is a property
right involved courts of equity will protect the right of assembly by
forbidding the police to forbid the meeting ; provided that t h e
police may disperse it if unlawful conduct of speech should develop 5 .
There are three classes of this privilege. I n the order of their
dependence on official consent they are : t h e privilege of meeting
in a public hall, the privilege of meeting in the public street, t h e
privilege of meeting on private property. A sample of police practices
in eighty-eight cities in 1920 showed seventy-four which required
permits for street meetings. Permits for meetings on private property
were required by twenty-one. Owners of private halls were licensed
by the police in some cities. New York City allowed meetings on
the streets and in public halls without police control. Philadelphia
required a detailed police permit for every public meeting, wherever
it was held 3. I n the recent strike of textile workers in Passaic
(New Jersey) the Riot Act was read to a picket line of several
thousand strikers (12 April 1926). T h e meeting halls were then
closed. Paterson (New Jersey), another textile centre, was t h e
scene of a prominent test case. I n August 1924 there was a s t r i k e
of silk workers in Paterson. Meetings were forbidden.
A test
meeting was arranged. T h e police notified the owner of the hall
that the meeting could not be held. T h e strikers gathered at the
City Hall and a speaker began, to read the Bill of R i g h t s of the
is strongly opposed. Similar allegations are current against the New
York Joint Board of the International Ladies' Garment Workers, which
was also controlled by Communists while it was in charge of the cloak
strike of 1926.
1
On this general subject see Edith PHELPS (compiler) : Civil Liberty
(1927), The H. W. Wilson Company, New York City, which includes sections giving the constitutional guarantees of civil liberty, with affirmative
and negative comment, and the text of recent laws restricting freedom
of expression and opinion, and decisions of courts.
1
City of Louisville v. Lougher (29 May 1925, Kentucky Court of
Appeals) 272 Southwestern 748. The property right was injected into the
situation by a contract between Lougher and a secret association that he
should address them on a vacant lot hired for the purpose.
3
Answers of police chiefs to Questionnaire of American. Civil Liberties
Union.
86
FREEDOM' OF ASSOCIATION
federal Constitution. T h e police dispersed the crowd and arrested
the persons who had arranged the meeting. T h e y were convicted '
under a statute m a k i n g unlawful assembly a misdemeanour 2 .
T h e police involved are usually local, city police. A number
of states now have state police to supplement these. T h e state
police can be concentrated in troublesome spots if necessary. T h e
system of state police is actively opposed b y organised labour. I n
cases of emergency the state militia or federal troops are used as
police, after an appeal by the local authorities to the state or federal
executive 3 .
Large companies often have their own police forces. Sometimes
these are made special police officers or deputy sheriffs, especially
if there is danger of a labour dispute.
A railroad m a y be liable
for the acts of a state policeman who is enrolled especially to guard
its line during a strike and w h o is paid by t h e road 4 .
§ 3 . — Civil Law in Collective Disputes
I n collective disputes it is rarely a question of the civil law
punishing strikers for breaking their contracts, since few labour
contracts r u n for a period of time. T h e question has sometimes
been how the existence of an unexpired collective agreement
affected
the parties' rights before the law. T h i s subject was dealt with in
F e b r u a r y 1927 issue of the International
Labour Review,
in an
article " Collective Bargaining in the United States " by Lindley
D . Clark.
Collective disputes, if they are not settled, typically lead to
strikes. T h e union may attempt to reinforce the strike with a
1
a
law.
31 March 1925.
New Jersey statute approved iS March 1796, enacting the common
3
In Consolidated Coal and Coke Company v. Beale (1922), 282 Federal 934, a federal district court refused to send special deputies to prevent
violations of the injunction which it had issued or to advise the president
of the United States that a state of insurrection existed and that he
should send federal troops. In the Pullman railroad strike of 1894 the
governor of Illinois refused to ask for federal troops, but they were
later sent.
4
Hudson v. St. Louis Southwestern Railway Company (1927), 293
Southwestern 811. A Texas state ranger shot and killed a picket without
cause during the railroad strike of 1922. The jury allowed damages.
The court of civil appeals (Texas) reversed the decision, but the Commissioner of Appeals of Texas required that this judgment be reconsidered.
UNITED STATES OF AMERICA
87
consumers' boycott. If the company deals with other companies
which are accessible, the boycott may take the form of sympathetic
strikes or threats of them. If the company deals with persons who
are accessible, they may be approached by pickets. In any case
workers for offending companies will be approached by pickets if
possible.
If a union tries to unionise a non-union company it tries to
approach the company's workers or the persons who patronise it.
If the union issues a general refusal to handle non-union material
or products under threat of strike, it is getting at the non-union
company through other companies, with which it deals.
Courts decide whether these actions should be forbidden by an
order in equity, or should be punished by awarding damages or
sending union officials to prison. They hold the actions illegal if
they disapprove of the means which are used or if they disapprove
of the purposes of the action. The cases illustrating the limits
prescribed by courts are therefore grouped below according as they
adjudicate the means or the ends. After that are mentioned cases in
which the industry was affected with a public interest.
A clue to whether an action is legal lies in whether it is an accustomed concept. Disputes between an employer and his employees
are understandable. But when they are spread into trade wars by
means of the boycott the motives of the sympathetic strikers are less
easily comprehended and are looked on with suspicion. Similarly it
is well understood that union members in a shop may ask their
fellow workers to join with them. But it is not part of the ordinary
course of business for union members to picket a non-union shop
where they have no immediate demand to make on the company,
but where they aim at remote benefits through the immediate
purpose of unionising its hands.
Thus the diversity of opinion in the various courts is partly
explained by the diversity of the judges' contact with industrial
practices. That the customary tends to become legal is indicated
by the gradual acceptance of some of-the practices which have been
held illegal in the past. Cases in point are the decisions of the New
York court of appeals that carpenters might refuse to handle nonunion materials and that a waiters' union might picket a restaurant
where it had practically no membership and where the workers had
agreed not to join the union.
88
FREEDOM OF ASSOCIATION
IVEGAIJTY OF MEANS
One sort of means objected to is violence and near-violence.
Quite a different sort of means, often held illegal, is the attempt to
reach the offending company t h r o u g h third parties — the boycott.
Violence
Of force as a means in collective disputes and violence a standard text-book states :
Nowhere, except in countries which have adopted compulsory arbitration, does the law place so many restrictions upon collective action
as in the United States. Nowhere, however, is violence so prevalent
in labor disputes, or goes more frequently unpunished . . . Judging
by results, our method of relying on the courts to preserve law and order
through injunctions may well be put down as a failure \
T h e authors had also noted that :
There is a pronounced tendency in recent cases throughout the
country to say little about the illegal motives of the workingmen and
to find the illegality of their conduct in the unlawful means they employ.
This may seem to be a great advance for organized labor ; but the
gain is deceptive. Practically it makes no difference whether a sympathetic strike is condemned because the motive of the workingmen is
held to be to injure the employer, or because it amounts to an effort
to coerce a third party. " Coercion " and " intimidation " are so vaguely
defined, that almost any conduct can be considered coercive or intimidating 2.
Force is adjudicated most often in cases of strikes. T h e strikers
may injure the physical property of the company which employed
them. T h e y may intimidate or injure the employees who remain at
work or w h o accept work or w h o are looking for work. R e s t a u r a n t
and theatre strikes have frequently been accompanied by picketing
to enforce a boycott against the company 3 ; the pickets m a y
intimidate the customers. A strike may be extended to companies
dealing with the struck company; these strikes may involve force,
either to the companies, their employees, or their customers. All
these acts of force, except the first, are against persons not directly
parties to the original dispute. T h e s e persons may seek a public
1
John R. COMMONS and John B. ANDREWS : Principles of Labor
Legislation, 1927 edition, p.-130.
2
The same, 1920 edition, pp. 100-101.
* See Truax v. Cooks and Waiters (1917), 19 Arizona 379. I n Badger
Brass Manufacturing Company v. Daly (1909), 137 Wisconsin 601, the
highest court of Wisconsin decided that the injunction restraining the
Metal Polishers in their picketing should not have been issued since the
complaint did not show in what way the company had been harmed.
UNITED STATES OF AMERICA
89
remedy in the criminal law, and they have civil remedies. But they
rarely claim their rights \
T h e Anglo-American system of law
holds force used against these persons to be so reprehensible that it
invests the entire scheme of which it is a part with an unlawful
character, and the harm to the company's business is held to have
been done illegally. I t follows that the company has a right (in
the discretion of the court) to an injunction which is to abolish t h e
scheme, or at any rate the parts of it involving force. I t often
claims this right. I t also has a right to damages.
Enjoining
crimes. — A leading student of i n j u n c t i o n s 2 says
that they are most commonly sought in labour disputes because
violence has occurred. Almost without exception they include prohibitions of violence and intimidation 3 . Many contempt cases are
premised upon assaults and other crimes. Issuing a n injunction
sometimes increases violence 4 .
The conviction that the law is unjust and that its administration is
unfair has had much to do with the great amount of lawlessness which
has characterized labor disputes in this country 5 .
W h e n relatively peaceful acts have been forbidden at the same
time with crimes, unionists have sometimes reasoned t h a t they m i g h t
as well do the criminal acts as the non-criminal, since the noncriminal would be punished as contempt of court equally with the
criminal.
Injunctions directed against pickets are obeyed most
strictly in the cases where picketing is forbidden altogether ; in
such cases there is an objective test of legality. Such injunctions
1
In the New York City cloak strike in the fall of 1926 injunctions
were secured by the employers and also by an association of designers,
whom the International Ladies' Garment Workers were trying to unionise.
See the case of the United Cloak and Suit Designers' Mutual Aid Association, New York Law Journal, 2 Dec. 1926. And many suits against
movements for the closed union shop have had for plaintiff a non-union
worker or else a competing union.
2
E. E. W I T T E , " Value of Injunction in Labor Disputes " (June 1924),
32 Journal of Political Economy 335.
3
In Boiler and Engine Company v. Benner, 14 Ohio Decisions 357,
the court of equity refused to forbid intimidation, since the criminal
law provided a remedy.
4
For instance the strikes leading to United Mine Workers v. Coronado
Coal Co. (1922), 259 United States 344, to Cœur d'Alene Mining Co.
v. Miners' Union (1892), 51 Federal 260, to the Re Debs (1895), 158 United
States 564, to Reinecke Coal Mining Co. v. Wood (1901), 112 Federal 477,
to Garrigan v. U.S. (1908), 163 Federal 16, and to the case of the Kansas
City Street Railway, 1 Law and Labor, Feb. 1919, p. 5.
5
W I T T E , p.
355-
9o
FREBDOM OF ASSOCIATION
do not always keep the strikers from getting in touch with employees
in other ways. " Picketing very often serves no other purpose than
t h a t of keeping the strikers busy and out of mischief " l .
What is Intimidation.
— Injunctions are not simply repetitions
of the criminal laws. Leaving aside those which forbid peaceful
persuasion because the strike has proved to be a conspiracy, there
are m a n y which forbid intimidation.
Many acts are held to be
intimidating which are not criminal. T h e y cannot be punished as
misdemeanours b u t only as contempt, if a n injunction h a s been
issued a . T h e r e has been a wide range of opinion in the several
jurisdictions and in the several courts and among the several judges
and at different times on the question w h a t acts constitute intimidation under various circumstances. T h e company will assert that
there has been violence. T h e pickets will contend that they are
engaged in peaceful persuasion.
I t has been widely held that picketing is necessarily intimidating
to employees or customers. I n a leading Massachusetts case
picketing was found illegal where the n u m b e r of pickets had usually
been two 3 . I n California, although strikes and boycotts of all
k i n d s seem to be legal in themselves, picketing has been held to
be intimidating. T h e r e are several state statutes and city ordinances
m a k i n g picketing a misdemeanour. Many cases have said that all
picketing was not illegal, b u t that picketing by a large number is
necessarily illegal. T h e acts need not be openly intimidating ;
veiled threats are unlawful. Persistence, importunity, following and
dogging become unjustifiable annoyance *. Reproaches are burdens o m e 5 . S h o u t i n g " scab " is often held intimidating. Some courts
have held against annoyance and made it illegal to speak to a person
against his will. One case recognised that negroes were more easily
intimidated t h a n white workers would have been. Another found
t h a t the picketing h a d made it necessary for t h e company to house
i W I T T E , p.
342.
* And under the Clayton Act, a contempt trial in such a case need
not use a jury. Compare Patton v. United States ex relatione South Side
Company (1923), 288 Federal 812. Jury trial in this case was denied.
because the act of contempt was peaceful persuasion.
*• Vegelahn v. Guntner (1896), 167 Massachusetts 92, or 44 Northeastern 1077.
4
American Steel Foundries v. Tri-City Central Trades Council (1921),
257 United States 184.
5
The court forbade social ostracism used to aid a strike for the closed
shop, 2 Law and Labor 256 (1920).
UNITED STATES OF AMERICA
01
and feed its n e w employees in t h e plant ; it held that t h e picketing
must have been intimidating a n d gave damages to offset t h e extra
expense to which this practice h a d p u t t h e company.
Injunctions
have often restrained striking unions from offering union benefits
to employees to induce them to join t h e strike. T h i s sort of restraint
has been upheld by a few higher courts.
On t h e other hand, many cases have found t h e picketing in a
particular strike to b e peaceful a n d therefore legal.
Before 1921 there were decisions of t h e highest courts of California, Illinois, Massachusetts, Michigan, N e w Jersey, Pennsylvania,
and W a s h i n g t o n that all picketing w a s unlawful. T h e r e were
statutes against it in Alabama, Colorado, a n d W a s h i n g t o n . There
were decisions in t h e highest courts of A r k a n s a s , Arizona, Indiana,
Minnesota, Missouri, Montana, N e w York, Ohio, Oklahoma, Oregon,
and Wisconsin that some picketing w a s lawful. T h e federal courts
were divided.
I n 1921 came t h e American Steel F o u n d r i e s decision 1, which
the federal Supreme Court made, under t h e common law (of Illinois) . T h e r e h a d been mass picketing. T h e court said that t h e
lower court h a d been correct to enjoin picketing, b u t t h a t it h a d
been incorrect to enjoin persuasion, since t h e strikers should have
had t h e privilege of posting missionaries to persuade t h e employees.
I t said t h a t the number of missionaries t h a t would be legal in each
case would depend o n t h e circumstances. I n this case it ruled that
the strikers should have approached t h e employees singly. Since
this decision —
The courts still differ in their statements as to whether there is
any such thing as " peaceful " picketing, but even the courts which
hold that all " picketing " is unlawful usually permit one or more pickets.
Similarly, the courts which hold that peaceful picketing is lawful now
generally follow the United States Supreme
Court in definitely prescribing
how the picketing should be conducted 2 .
What is Enjoined. — Acts can b e illegal b y contamination. T h e
principle is usually stated broadly, that if t h e r e is a n y illegal act
connected with an u n d e r t a k i n g like a strike or a boycott then all
acts connected with t h e undertaking a r e illegal. T h i s helps to
explain t h e frequency • of injunctions which forbid all combative
1
American Steel Foundries v. Tri-City Central Trades Council (1921),
257 United States.
2
COMMONS and ANDREWS : Principles
p. 121.
of Labour Legislation
(1927),
02
FREEDOM OF ASSOCIATION
measures, including persuading employees to join the union or
customers to withhold their trade. A leading case was Vegelahn v.
Guntner 1 decided by the highest court of Massachusetts in 1S9Ó.
The court found that the strikers had maintained a picket patrol of
two workers, but that other strikers had joined them at times, and
that this arrangement had at times resulted in intimidation. The
single justice had forbidden threats of personal injury and the like.
The full court enjoined all picketing. In 1926 a Pennsylvania court
granted an injunction when the coal company showed that there had
been violence in the picketing. It forbade " annoying, embarrassing,
or through fear exercising moral coercion over those lawfully
employed " 2. A recent prominent case is the injunction secured by
the United States against the Railway Employees' Department of
the American Federation of Labor after the shop crafts strike of
1922 had run its course. The complaint was based partly on a recital
of numerous acts of violence. This injunction was much more
CTiTopirnncr i n
ite b r m e
tlio-n f l i c
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railroad strike in 1894 '. Sweeping injunctions are frequent in cases
in which the strike itself is held illegal. The most positive case is
the injunction commanding the leaders of the United Mine Workers
to call off the soft coal strike of 1919. This grouping of non-violent
with violent acts in the list of things enjoined tends to break down
the distinction in the minds of the strikers and as a result they
sometimes group violent with non-violent acts in the list of things to
be done despite the injunction.
On the other hand, many lower courts have limited their
injunctions to cover only the directly illegal acts, such as intimidation, and many higher courts have held that the lower court should
have done it. Also, some courts have limited the injunction, to
persons who have been shown to have been using intimidation. The
general practice is to include an association (or associations), its
officers, its members, and all persons who may aid them, with only
the officers given by name. Even if this were not done, it is the
rule that all persons who know of the injunction are under duty
not to violate it, or what is nearly the same thing, under duty not
to help enjoined persons to violate it.
1
3
3
Vegelahn v. Guntner (1892), 167 Massachusetts 92.
Jefferson and Indiana Coal Company v. Marks, 134 Atlantic 430.
See comparison in 37 Harvard Law Review 1010, noi ff. (1924),
FRANKFURTER and LANDIS : " Power of Congress over Procedure in
Criminal Contempts. "
UNITED STATES OP AJIERICA
93
A recent practice is for the court to require t h e n a m e s a n d
stations of all pickets to be on file \
Boycotts
T h e boycott was in greater vogue twenty years ago t h a n it is
now. I t s popularity was cut off by the decision i n t h e D a n b u r y
H a t t e r s case, which said members of the union w h o conducted a
boycott were liable for damages. T h e r e are still strikes against nonunion materials, especially in the building trades, and some unions
still advertise that companies are " unfair to organized labor ".
I t is a criminal conspiracy in restraint of trade if persons ( t h e
first party) associate to bring u n d u e economic pressure to bear on
a third party in order to cause the third party to cease dealing w i t h
or working for a second party, with whom the first party h a s a
dispute. I t is also a w r o n g against the second party, because of
which he may sue for damages and a n injunction. Such actions
constitute a secondary boycott. T h e primary boycott — to cease
dealing with or working for the second party — is not important in
industrial disputes, unless the strike is looked upon as a primary
boycott. I n some jurisdictions the (secondary) boycott is not illegal
in itself. But it may involve means which harm the second party
unduly.
Physical intimidation of third parties or if they are
companies,' of their workers or customers m a y be t h e means of t h e
u n d u e harm. T h r e a t e n i n g to strike against a third party may be
sufficient to make the association illegal. I n other jurisdictions the
act of declaring that the second party is " unfair to organized labor "
has been held to be u n d u e pressure on third parties to the injury of
the second party 2 .
T h e federal Supreme Court in 1911 isolated three judicial points
of view on the boycott :
Courts differ as to what constitutes a boycott that may be enjoined.
All hold that there must be a conspiracy causing irreparable damage
to the business or property of the complainant. Some hold that a
boycott against the complainant by a combination of persons not immediately connected with him in business can be restrained. Others hold
1
See for'instance Snead and Company v. Molders' Union, New Jersey,
Chancery, 20 July 1927, 3 Law and Labor 215.
2
See Harry W. LAIDLER : Boycotts and the Labor Struggle (1924),
Lane, New York City, which discusses methods of boycotting and the
principles of law applied in boycott cases. In some states the policy of
the courts is reinforced by the existence of anti-trust statutes. See for
instance Campbell v. Motion Picture Operators' Union (1922), 151 Minnesota 220.
94
FREEDOM OF ASSOCIATION
that the secondary boycott can be enjoined, where the conspiracy extends
not only to injuring the complainant, but secondarily coerces or attempts
to coerce his customers to refrain from dealing with him by threats that
unless they do so they themselves will be boycotted. Others hold that
no boycott can be enjoined unless there are acts of physical violence,
or intimidation caused by threats of violence '.
I n most jurisdictions a strike is illegal which is intended to
benefit the employees of another company. W h e n t h e boycott brings
pressure upon customers only by notifying them that organised labour
considers a company unfair, the higher courts usually have held that
t h e r e has not been u n d u e pressure, frequently reversing the lower
courts. But there are some decisions that circularisation itself is
oppressive. F o r instance, in a union town *.
W h e n the injunction forbids peaceful acts in furtherance of the
boycott, acts which the defendants h a d supposed were legal, t h e
information that they are not legal is usually accepted and the
injunction is followed, in contrast with the injunctions which forbid
violent acts connected with boycott strikes or other strikes. T h e
prohibitions of these injunctions against violence repeat the criminal
law. T h e y are an old story and produce less effect upon the persons
enjoined t h a n injunctions against non-violent acts do.
T h e leading damage case is the D a n b u r y H a t t e r s case. T h e
United H a t t e r s in 1902 had organised a large part of the fur hat
i n d u s t r y . T o unionise Loewe's factory at D a n b u r y (Connecticut)
they resorted to tactics which were popular at that time. T h e y
struck, a n d they had the American Federation of Labor, which had
over a million members, put the company on its Unfair List and so
u n d e r t a k e a boycott of the company's hats, so that the wholesalers
a n d retailers w h o sold its hats should stop b u y i n g from the company,
until it should unionise its plant. Loewe brought suit, with the help
of the Anti-Boycott Association.
T h e local federal court found
t h a t the combination was a conspiracy in restraint of interstate commerce u n d e r the federal anti-trust law, a n d t h a t the employer might
sue for triple damages against those members of the union who
participated in the boycott by continuing their membership in the
union without protest after it was begun.
T h e court of appeals
sustained a demurrer, but the federal Supreme Court in 1908 rejected
it \ T h e American Federation of Labor discontinued its unfair list
1
Gompers v. Bucks Stove and Range Company
States 418, or 31 Supreme Court 492.
2
Wilson v. Hey (1908), 232 Illinois 389.
3
Loewe v. Lawlor (1908), 208 United States 274.
(1911), 221 United
UNITED STATES OF AMERICA
95
and the practice of boycotting fell off. W h e n the judgment was
rendered against t h e H a t t e r s t h e case was again fought to the
Supreme Court *. T h e American Federation of Labor made two
appeals to unionists which paid most of the damages for the 186
convicted hatters.
A leading injunction case was Gompers against Bucks Stove
and Range Company \
T h e company refused to shorten its tenhour day. I n 1907 there was a strike. T h e American Federation
of Labor p u t it among the other eighty companies on its Unfair
List. T h e company enjoined the officers of t h e Federation under
the federal Anti-Trust Act from indicating in any way that it was
unfair to union labour. T h e y defied the injunction. T h r e e officers
were convicted of contempt and sentenced to several months imprisonment. T h e case was appealed. I t received wide publicity and called
the attention of unionists to the fact t h a t Bucks stoves were " u n f a i r " .
T h e i r sales fell off and the company became financially embarrassed.
I n iQio Mr. Van Cleve, the president of the company, died. H e
h a d also been the president of the National Association of Manufacturers. T h e new management made an agreement with the union.
T h e injunction case came before the federal Supreme Court, which
dismissed it as a moot case. T h e three convicted officers of the
American Federation of Labor took their case to the federal Supreme
Court. I t said (1911) t h a t t h e lower court had been correct to
enjoin the Unfair List, since it might bring u n d u e pressure to bear
on third parties in states to which the company shipped its stoves.
But it set the sentences aside on technical grounds ".
These cases illustrate the practice of boycotting by workers
threatening to withdraw their custom. T h i s practice has been of
little significance since the Danbury H a t t e r s ' case, compared with
the practice of boycotting by workers threatening to strike persons
dealing with an " unfair " company. T h e usual view of this practice
is that in the ordinary course of business workers would not strike
1
2
418.
Lawlor v. Loewe (1915), 235 United States 522.
Gompers v. Bucks Stove and Range Co. (1911), 221 United States
3
Gompers v. Bucks Stove and Range Company (1911), 221 United
States 418. The court said that the trial for contempt had been civil
instead of criminal, although the charge was criminal contempt. The
defendants were immediately tried again, but they pleaded the statute of
limitations. This plea was upheld by the federal Supreme Court,
11 May 1914.
96
FREEDOM OF ASSOCIATION
against their company unless they themselves had a dispute
directly with it. The leading case is the Duplex Company case \
In 1914 the machinists undertook a boycott of the company to
unionise it. Its three competitors were unionised, but two of them
had served notice that they could not continue under union conditions
if the Duplex company in Michigan did not become unionised. The
method used was to have the machinists of New York City, where
most of the company's customers were, bring pressure to bear on the
customers, chiefly through threat of strike. The federal district
court enjoined them on the ground that they were combining to
restrain the company's interstate commerce. The Circuit Court of
Appeals reversed the judgment on the ground that the Clayton Act
forbade an injunction in disputes between employer and employees.
The Supreme Court in 1021 reinstated the injunction on the ground
that the offenders in New York were not employees of the company
in Michigan ; and that " Congress had in mind particular industrial
controversies, not a general class war ". The workers were enjoined
from persuading or coercing persons not to deal with the company.
On 11 April 1927 the federal Supreme Court decided Bedford Cut
Stone Company v. Journeymen Stone Cutters' Association of North
America. The Indiana lime-stone quarries had gone non-union. In
order to try to restore collective bargaining, in accordance with the
method prescribed by its constitution, the union ordered all its
members engaged in stone cutting at the place of construction to
refuse to work on stone on which the cutting had been begun, at the
quarry, by men working in opposition to the union. The Supreme
Court decided that this order should be forbidden by a court injunction. The case was decided on the authority of the Duplex case.
Two dissenting judges argued that it could be distinguished from
the Duplex case because in the Duplex case a large union had attacked
a single company and in the Cut Stone case a small union was
resisting a strong employers' association ; because in the Duplex
case the union threatened customers, carting companies, and repair
companies with strikes in their plants and threatened recalcitrant
union members with loss of membership, and in the Cut Stone case
the members of the union did no more than refuse to finish the
1
Duplex Printing Press Company v. Deering (1921), 254 United States
443. Comment on this case will be found in F. B. SAYRE : " The Clayton
Act Construed ", 45 Survey 597 ; " The Secondary Boycott ", 4 Weekly
Review 46 ; 34 Harvard Law Review 880 ; 25 New Republic 245 and 376.
UNITED STATES OF
AMERICA
97
stone which had been partly cut by non-union m e n . Justice Brandeis
wrote the dissenting opinion in the Cut Stone case and he had
written the dissent in the Duplex case too. I t appears that between
I02I and 1927 he gave u p hope that secondary boycotts in general
would be held legal. I n his Cut Stone decision he devoted himself
to trying to mitigate the rigour of t h e established rule by arguing
that some sorts of secondary boycotts should be considered legal.
I t is the building trades unions which have been most active in
striking against the use of non-union materials. I n most jurisdictions this practice has been held illegal. T h i s was the attitude
prevalent among the New York and federal courts in 1910-1914 when
the " o u t s i d e " carpenters of the borough of M a n h a t t a n in New York
City refused to work with wood trim that had no union label showing
that it had been made by " inside " or manufacturing union
carpenters and the American Anti-Boycott Association tried to stop
them by injunction *. Despite the injunctions the carpenters struck
whenever non-union materials were used. I t could never be shown
in court t h a t any one had called the strike. T h e boycott spread to
t h e borough of Brooklyn.
One of the leading manufacturers
unionised his mill. T h e ineffectiveness of injunctions in this case
was d u e to the fact that t h e union was thoroughly organised and
disciplined to begin with.
T h e highest court of N e w York after several years (1917) passed
on some of these injunctions. I t held that the interests of the two
groups of workers were closely bound up together and that a strike
by the " outside " group in support of the " inside " group was a
form of self-help ; unionising one branch of the industry made more
jobs for union men in the other branch. I t decided t h a t no injunction
should have been issued 2 .
I n 1926 the federal Supreme Court held t h a t an agreement to
use only union-made millwork was a conspiracy in restraint of
interstate commerce.
T h e agreement h a d been m a d e by the
carpenters' union of Chicago, the building contractors, and the
1
See Paine Lumber Company v. Neal, 212 Federal 259, 214 Federal
82, 244 United States 659 or 37 Supreme Court 718 ; Irving v. Joint District Council (1910), 1S0 Federal 896 ; Irving v. Neal (1913), 209 Federal
471 ; Albro J. Newton Company v. Erickson (1911) 126 New York Supplement 949, (1917) 221 New York 632 or 117 Northeastern 1059 ; Bossert
v. Dhuy (1914), 151 New York Supplement S77, (1917) 221 New York 342
or 117 Northeastern 582.
1
Bossert v. Dhuy (1917), 221 New York 342.
Freedom of Association
o8
FBEEDOM OF ASSOCIATION
companies m a k i n g union millwork.
T h e competing non-union
companies were located across state lines from Chicago, chiefly in
Wisconsin and the south oí the United States \
I n 1920 the longshoremen a n d teamsters unions of N e w York
City refused to handle goods made by or transported by companies
t h a t did not bargain collectively with labour unions. A Citizen's
Committee organised an emergency t r u c k i n g service and secured an
injunction against t h e conspiracy " to blockade the channels of
trade " from a state c o u r t 2 and from a federal court under the antitrust laws \ These cases affirmed t h e rights of all persons to receive
equal and impartial service from the railroads and other common
carriers 4 .
I n some jurisdictions strikes against working with non-union
materials are held legal when other boycotts are not, because in
these strikes the union is more likely to be carrying out a general
rule without animosity toward the particular non-union plant from
which the materials came.
T h e popular notion of a sympathetic
strike is that of a craft
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xix
the same city. T h e sympathetic strikers make no demands for better
terms upon their own employers ; they merely expect them to help
b r i n g the first strike to a close. Usually a sympathetic strike is
unlawful 5 . A sympathetic strike is a sort of boycott strike. All
boycott strikes are in a sense sympathetic strikes.
LEGALITY
OF
PURPOSES
Unionising
of
T h e boycott (above) is typically an assertion of the solidarity
an organised g r o u p of workers with another- organised
1
United States v. Brims (1926), 47 Supreme Court 169.
Burgess v. Stewart, 112 Miscellaneous (New York) 347.
3
Granted and then vacated by the federal district court ; reinstated
by the circuit court of appeals.
' MEIRRITT : History of the League for Industrial Rights (1925),
pp. 105-109.
5
Hansen v. Innis (1912), 211 Massachusetts 301, or 97 Northeastern
756. There are varying opinions in the New York cases. The strike was
unlawful in Beattie v. Callanan (1901), 67 Appellate Division 14 (New
York), or 73 New York Supplement 518, and (1903) 82 Appellate Division
7, or 81 New York Supplement 413 ; and in Schlang v. Ladies' Waist
Makers (1910), 67 Miscellaneous 221, or 124 New York Supplement 289.
It was lawful in Searle Manufacturing Company v. Terry (1905), 56 Miscellaneous 265, or 106 New York Supplement 438.
2
UNITED STATES OF AMERICA
99
group with whom they are connected because they belong
to the same national union, or because they both belong to a
federation of crafts, or because they are in the same city.
The
activities of unions in organising the unorganised, which are about
to be taken u p , are an assertion of their solidarity with unorganised
workers. Usually they have not involved the boycott, but the case
of Duplex P r i n t i n g Press Company against Deering ', which was
reported above, was an attempt to unionise by means of boycotting.
I n that case the machinists' union called a strike of this company ;
fourteen men responded out of about 300. Boycott methods were
used to bring the company into line with the other printing press
plants, who employed union men and paid the union scale.
\
W h e n companies seek the protection of courts against t h e
activities of union organisers, they concede that unions have an
interest in acquiring new members and t h a t unionists may, usually,
urge non-union workers to join them. I t is also understood t h a t in
the ordinary course of business a company loses its hands occasionally
and one by one ; that it is t h e n - a b l e to replace t h e m one by one
with reasonable facility ; t h a t if it should be called upon to replace
all of them, or most of them, at once, the ordinary course of its
business would be interrupted and it would suffer an extraordinary
financial loss. T h e courts have often protected the company against
such a loss, especially if it has arranged with its workers that it
is giving them jobs on condition that they agree not to join a union.
T h i s was the arrangement in the H i t c h m a n case, in which the federal
i
1
Supreme Court in 1917 explained the legal relations in this way :
1
*)
\
\
'.
(
i
In short, plaintiff was and is entitled to the good will of his
employees, precisely as a merchant is entitled to the good will of his
customers although they are under no obligation to continue to deal with
him. The value of the relation lies in the reasonable probability that
by properly treating its employees, and paying them fair wages, and
avoiding reasonable grounds of complaint, it will be able to retain them
in its employ, and to fill vacancies occurring from time to time by the
employment of other men on the same terms. The pecuniary value of
such reasonable probabilities is incalculably great, and is recognized by
the law in a variety of relations . . .
There is no reason to doubt that if defendants had been actuated by
a genuine desire to increase the membership of the Union without unnecessary injury to the known rights of the plaintiff, they would have permitted
their proselytes to withdraw from plaintiff's employ when and as soon as
they became affiliated with the Union — as their contract of employment
1
443-
Duplex Printing Press Company v. Deering (1921), 254 United States
100
FREEDOM OF ASSOCIATION
required them to do — and that in this event plaintiff would have been
able to secure an adequate supply of non-union men to take their places *.
Employers contest the privilege of unions to win to their cause
workers upon whom the company has been depending to carry on
in time of strike. I n cases of direct strike the employers' success
in contesting it depends on what the court looks upon as intimidation,
or unreasonable interference between a company and the men who
are w o r k i n g for it or who m i g h t work for it. T h e case of the
employers is much clearer when his plant is non-union and a union
tries to organise it. I n such cases the union organiser is often correctly described as an " outsider ". T h e conclusion is sometimes
drawn by courts that his union has n o interest or no legitimate
interest in unionising the plant, and that any h a r m it inflicts on
the c o m p a n y ' s business is without justification and illegal. I n the
H i t c h m a n case (just above) t h e court w e n t on to say :
Defendants' acts cannot be justified by any analogy to competition
in trade. They are not competitors of plaintiff ; and if they were their
conduct exceeds the bounds of fair trade. Certainly, if a competing
trader should endeavor to draw custom from his rival, not by offering
better or cheaper goods, employing more competent salesmen, or displaying more attractive advertisements, but by persuading the rival's
clerks to desert him under circumstances rendering it difficult or embarrassing for him to fill their places, any court of equity would grant an
injunction to restrain this as unfair competition.
On the other hand the view is sometimes taken that the u n i o n ' s
claim on the non-union workers is as great as a company's claim on
a competitor's trade, and that there is a physical resemblance between
the two claims. A federal intermediate court had said in 1908 that :
For the maintenance of the incorporeal value of a going business
appellee had the right to a free access to the labor market, and the
further right to the continuing services of those who accepted employment
at will until such services were terminated by the free act of one or the
other party to the employment. On the other side of this limiting line,
appellants, we think, had the right, for the purpose of maintaining or
increasing the incorporeal value of their capacity to labor, to an equally
free access to the labor market. The right of the one to persuade (but not to
coerce) the unemployed to accept certain terms is limited and conditioned
by the right of the other to dissuade (but not restrain) them from
accepting. For another thing that must not be forgotten is that a strike
1
Hitchman Coal and Coke Company v. Mitchell (1917), 245 United States
229. Compare W. W. COOK : " Privileges of Labor Unions in the Struggle
for Life ", 27 Yale Law Journal 779 ; it is chiefly a criticism of the
court's logic in this case.
UNITED STATES OF AMERICA
101
is one manifestation of the competition, the struggle for survival or place,
that is inevitable in individualistic society '.
A company which has had its employees sign individual nonunion contracts can usually obtain an injunction forbidding the
union to persuade the employees to join. T h e employees have an
absolute legal privilege to leave their e m p l o y m e n t . and join. T h e
" individual contract " was popularised in the business depression
of 1921 by the League for Industrial Rights as a device for cutting
down the privileges of strikers and introducing the open shop. I t
had been used before that as a device for c u t t i n g down the privileges
of union organisers and preserving the open shop 2. T h a t is its
chief use at the present time. T h i s practice of giving legal effect
to an at-will contract is based on the employer's claim that he needs
free access to the labour market. Such claims had been allowed bycourts before the " individual contract " came into popularity.
Another device promoted b y the League for Industrial R i g h t s
was the employers' open shop agreement. T h i s was intended to
preserve the open shop where it existed. If a number of non-union
employers agreed together not to sign agreements with the union,
the union would be under duty not to induce one of t h e m to make
a n agreement with it, since this would be inducing him to break his
contract with his fellow employers 3 .
-Unions have u n d e r t a k e n to picket non-union establishments in
order to influence their workers or their customers, in the hope of
1
Iron Holders' Union v. A Ms-Chalmers Company (1908), 166 Federal
45 (Circuit Court of Appeals).
2
Laws making it a misdemeanour for an employer to require a worker
not to join a union are unconstitutional. Recently state federations of
labour have proposed bills which provide that an employment contract
is against public policy and void (and so no ground for an injunction) if
it makes non-membeiòhip in a labour union or in an employers' association a condition of entering an employment relation.
3
In State of Nebraska v. Employers of Labor (1918), 169 Northwestern 717, the Attorney-General of Nebraska asked an injunction
against an open shop agreement between employers ; it was denied. In
Middleton and Swenson Inc. v. Stark, Supreme Court for King County,
Washington, 2 Law and Labor 121, a firm asked for an injunction
against the Journeymen Tailors, who were trying to induce it to break its
contract with other employers ; the injunction was granted. See also
Associated Hat Manufacturers v. Baird-Unteidt Co., 88 Connecticut 332.
Federal Attorney-General Daugherty gave an opinion in the matter of
the Builders' Exchange of San Francisco. In this he held that their openshop agreement was illegal under the conspiracy clauses of the Clayton
Act. New York Times, 6 Jan. 1923, p. 9, col. 2.
*
I02
FREEDOM OF ASSOCIATION
unionising the establishments. T h i s has been held illegal, even in
jurisdictions in which peaceful picketing is legal when it occurs in
the ordinary course of business, when employees strike for the redress of grievances. But New York h a s recently held picketing in.
t h e absence of a strike to be legal '. If a union strikes a plant and
it succeeds in continuing to produce or in resuming production with
new workers, the strike is often said to be over and the u n i o n ' s
privilege of picketing lapsed 2 . However, in the case of a steel
company which shut down and reopened with a lower wage scale,
the City Central, a federation of labour unions connected with the
local steel industry, called a strike (to which two m e n responded)
and instituted picketing ; and the federal Supreme Court held that
the federation's interest in t h e plant was great enough to justify t h e
picketing, t h o u g h it held that there should have been only one
picket at each gate 3 . E m p l o y e r s sometimes claim t h a t all relation
between the workers and the company is abolished when the
workers strike. But in ordinary strikes t h e courts usually recognise
the strikers' expectancy that they will go back to work i .
T h e leading group of cases on t h e legality of attempts to
unionise non-union plants or non-union territory deals with the
soft coal industry. Since the beginning of t h e century the United
1
Exchange Bakery v. Rifkin, 31 May, 1927, New York Court of
Appeals. •
2
vSee Moore Drop Forging Company v. McCarthy, Supreme Judicial
Court of Massachusetts, 9 January 1923, 5 Law and Labor 27. The
company had not only resumed normal operation but also had had its
new employees sign non-union contracts. See also the case of the
Amalgamated Textile Workers (New York court), discussed in 3 Law
and Labor 56 (1921) ; Edward C. Minas Company v. Cupp (Indiana,
J921) 3 Law and Labor 157 ; / . F. Tapley Company v. Rivara, and Hampton Restaurant v. Morris (New York lower court) New York Law Journal,
!S J u ' y 1921, or 3 Law and Labot 186 ; Yates Hotel Company v. Meyers
(New York Lower court, 1922, 4 Law and Labor 225. Compare the law
of Massachusetts which requires a company which has labour trouble to
mention it in advertising for new workers. The state board of arbitration
has the power to issue a certificate of normality when it considers the
trouble is over, and the company may then drop the statement about
labour trouble from its advertisement. Massachusetts, General Laws,
1921, chap.149, sections 22 and 23 ; chapter 150, section 4.
3
American Steel Foundries v. Tri-City Central Trades Council (1921),
257 United States 184.
4
But men who have been discharged may not picket. Rüssel Hotel
and Restaurant Company v. Obermeier (Amalgamated Food Workers)
(lower court of New York) New York Law Journal, 10 May 1924 ;
Kassel-Gerb Company v. Ladies' Garment Cutters (Ohio, 1922), 4 Law
and Labor 196.
UNITED STATES OF AMERICA
IO3
Mine Workers have h a d fairly continuous collective agreements with
a large number of the soft coal operators. T h e interstate agreement of
the central competitive field p u t the competing operators on a basis
of equality of labour costs, or at any rate on a basis of accustomed
differentials in labour costs. But in recent years the non-union
fields near the central competitive field, by their opening new mines
and by the shifting of railroad rates and of centres of demand, have
been competing heavily with the unionised central competitive field.
Partly because of pressure from the operators of the central
competitive field the United Mine W o r k e r s have tried to organise
W e s t Virginia, which is the chief source of the new competition. T h e
coal companies have resisted. T h e r e has been open warfare, at times
martial law, and a great deal of litigation. T h e national soft coal
strike of 1927 led to injunctions in various districts.
T h e leading case, that of the H i t c h m a n company, dates from one
of the union's early efforts, before W e s t Virginia became an
important competitor. T h e lower federal court found that the union
was a n unlawful organisation which was conspiring w i t h the central
competitive operators to restrain trade 1. T h i s finding was not taken
seriously by the higher courts.
T h e mine in question had once been organised, but a strike h a d
been lost and the men went back on the understanding t h a t they
could not work there and belong to the union. T h e union later sent
an organiser. H e tried to persuade the workers to join the union by
pointing out the benefits of membership. T h e majority opinion of
the Supreme Court reports :
He prophesied, in such a way that ignoiant, foreign-born t r ' n ^ s
such as he was addressing, naturally might believe him to be speaking
with knowledge, that the wages paid by the Hitchman would be reduced
unless the mine was unionized.
T h e minority opinion reports :
He pointed out to the men that, although the company was then
1
See Hitchman Coal and Coke C07npany v. Mitchell (1913), 202 Federal 512. This argument has been urged repeatedly. One form of it based
on the principle which has been partially enforced between the union
and the operators' association, that mines with high natural costs should
be allowed somewhat low labour costs. Companies which had low natural
costs, as manj- non-union mines have, and which were in danger of being
unionised have said that they were afraid that unionisation would cut
into their profits not only by bringing wages up to a standard level, but
even by enforcing against them an especially high wage rate.
104
FREEDOM OF ASSOCIATION
paying according to the union scale, there would be nothing to prevent
a later reduction unless the men united '.
H e got some of the workers to agree secretly that they would
join w h e n he should call a strike. T h e company went to court (1907)
and pointed out t h a t the organiser's actions threatened damage to its
business. I t secured a hearing before the federal court by suing
only mine officials who lived across the state line in Ohio. T h e
court enjoined the officials (who h a d sent the organiser) from acts
leading toward unionising the mine, including intimidation and
violence t h r o u g h picketing. T h e injunction was made perpetual in
1913 2 . I t was reversed b y the Court of Appeals in 1914 3. I n 1917
the Supreme Court decided that the injunction should stand, except
t h a t it should not forbid intimidation, since there had been n o threat
of it. T h e court pointed out t h a t t h e organiser had induced a fraud
against the company w h e n t h r o u g h his persuasion workers agreed to
join the union (in effect did join) and still went on w o r k i n g for the
company. Chiefly it emphasised the r i g h t of a non-union company
to be free from union activities except ordinary solicitation to
membership *. Some of the dicta were quoted a few paragraphs
above.
T h e Borderland Coal Company had mines in both West Virginia
and K e n t u c k y . T h e warfare which resulted in martial law in West
Virginia had included acts of violence at the place of its mines, and
its business had been interfered with. T h e company urged upon the
federal district court of Indiana (in which the u n i o n ' s headquarters
were) that it shipped its coal into other states ; and that the general
disturbance of business which was causing it loss depended upon
t h e conspiracy between the union a n d the unionised operators
(employers) to destroy competition in t h e interstate commerce in coal.
T h e unionised operators helped the union get funds by checking off
t h e union dues on pay-days and t u r n i n g it over to the union. O u t of
its treasury the union supported the campaign to organise the nonunion fields. I t was this campaign which caused t h e violence and
1
Hitchman Coal and Coke Company v. Mitchell (1917), 245 United
States 229.
2
202 Federal 512.
3
Mitchell v. Hitchman Coal and Coke Company (1914), 214 Federal 685.
4
Hitchman Coal and Coke Company v. Mitchell (1917), 245 United
States 229. See also Diamond Block Coal Company v. United Mine Workers (1920), 188 Kentucky 477, Algonquin Coal Company v. Lewis (1921),
3 Law and Labor 255 (Supreme Court of West Virginia).
UNITED STATES OF AMERICA
IO5
loss of business. The district court decided that these activities
constituted a conspiracy in restraint of interstate commerce under the
federal anti-trust laws. It enjoined the coal operators within its
jurisdiction from checking off union dues and enjoined the officers
of the union from sending money to West Virginia, except to provide
the necessities of life, and these only for its members. However, the
Circuit Court of Appeals decided (1921) that the injunction should not
have gone beyond the proximate cause of injury to the company. It
pointed out that many legal activities were hindered by forbidding the
check off. It limited the injunction to forbidding the union to send
money to West Virginia to further the illegal acts specifically harmful
to the company '. Other sweeping injunctions were issued afterward,
nevertheless. They, too, were modified on appeal.
The legal relationship between the soft-coal mining companies
and their non-union workers is complicated by the fact that the mines
have often been opened up in isolated mountain districts and it has
been the company which built the houses. It rents them out to the
miners, in many coal towns. The result has been that the United
Mine Workers have found one of the chief items in a unionising
campaign has been to provide tents or shacks for the new members
of the union and their families who have been evicted from the
company houses. There is less formality about such evictions than
about the ordinary evictions, for the contractual relation between the
two parties is not the relation of landlord and tenant (which has
certain traditional delays connected with eviction) but the relation
of employer and employee.
In some cases the property rights of the coal company extend
further and the town is located entirely upon its private property.
Union organisers are then trespassers. These company towns are
frequent in West Virginia.
The legal institution of the company house or the company town
is found in other industries. The most prominent other companytown region is the cotton manufacturing district in the south-east
of the United States.
Closed Shop
Strikes for the closed union shop or for the preferential union
shop, or for no discrimination against union members have occupied
a relatively large place in American industrial relations because of
1
Gasaway v. Borderland Coal Company (1921), 27S Federal 56 (Or-.
cuit Court of Appeals).
I 06
FREEDOM OF ASSOCIATION
the danger to the unions which lies in the companies' freedom
to discharge \
Strikes for the closed shop are illegal in most
jurisdictions.
A m o n g the Massachusetts cases, Plant v. Woods is a leading
case. A union of painters in Massachusetts seceded from their parent
union. T h e parent union threatened to strike the employers who did
not discharge seceding members, unless they asked for reinstatement.
T h e seceding union obtained an injunction (1900) against their
striking or threatening to s t r i k e 2 . I n Reynolds v. Davis (1908) a
demand for the closed shop by the building trades council was
complicated by a demand that the companies let the executive board
of the council (a federation of building labour unions) adjudicate
their difficulties with their workers. T h e Massachusetts court allowed
the companies an injunction against all acts which might further
a strike for this end \
In 1918 it held that if a strike was for a
n u m b e r of legitimate ends and also to unionise the factory it was
illegal in its entirety 4 . However, in 1920 t h e court decided t h a t a
strike of restaurant workers for the closed shop was in itself legal
because the employer had in bad faith evaded a conference with the
union 5 . Also, it did not forbid the preferential union shop when
the question arose in 1914. T h e r e were two longshoremen's unions
in Boston and one of them secured an agreement with various
steamship companies to hire only its members as long as any
applied for vacant jobs. T h e second union asked that the first be
enjoined from carrying out the agreement, since the agreement
kept the members of the second from getting jobs. But the court
found that apparently the first had bid the work away from the
second in a m a n n e r m u c h like an ordinary business transaction \
Similarly the existence of a closed shop agreement is not in itself
unlawful in Massachusetts, and probably elsewhere. But a strike
1
COMMONS : " Tendencies in Trade Union Development in the United
States " (June 1922), 5 International Labour Review 855, 862.
* Plant v. Wooas (1900), 176 Massachusetts 492.
* Reynolds v. Davis (1908), 198 Massachusetts 294.
4
Baush Machine Tool Company v. Hill (1918), 231 Massachusetts 30.
Ten years betöre it had decided that a strike was justifiable " so far as
respects its ultimate object ", although two of its four objects were
illegal. Willcutt v. Bricklayers' Union (1908), 200 Massachusetts n o .
5
Walton Lunch Company v. Kearney (1920), 236 Massachusetts 310.
Similarly the Rhode Island court found that the Musicians' Union did
not have illegal purpose when they forbade members to play in any
theatre which had broken a contract with a member of the union.
Rhodes Bros. Co. v. Musicians' Protective Union, 37 Rhode Island 281.
' Hoban v. Dempsey (1914), 217 Massachusetts 166.
UNITED STATES OF AMERICA
IO7
for the preferential shop can be unlawful. I n 1920 the highest court
of Massachusetts decided that the lower court had been correct in
enjoining the Photo E n g r a v e r s ' Union, which was on strike. T h e
u n i o n ' s demands included a demand for the preferential shop. T h e
court said it was another name for the closed union shop.
The
.injunction had forbidden the union, among other things, to tell t h e
companies' customers that it was unfair to organised labour and to
use " coercive methods to induce workers to quit employment or
refrain from employment " with the companies \ I n 1922 the court
ruled, t h r o u g h a master, that the union's " permit system ", used to
enforce the clause in the collective agreement which provided for
the preferential union shop, was unlawful ; that the company could
not bargain away its legal right to hire whomever it pleased 2 .
Other
Purposes
Sympathetic strikes are held unlawful when it is held that
the boycott of which they are a part is unlawful.
Massachusetts ruled as early as 1870 against threatening to strike in
order to bring a company to pay a fine to t h e union. T h e court
pointed out t h a t the company had been under no legal duty to p:iy
the fine ; it allowed the company to recover the amount of t i e
fine 3 . Later the highest New York court held that strikes to collect
fines from employers were unlawful i . T h e Massachusetts court has
indicated that a strike or boycott to override the jurisdiction of a
court may be u n l a w f u l 5 . I n 1911 the court held that a strike to
cause the discharge of two granite cutters' foremen was not justified ;
it found the objection to them was that some of the workers did not
like them as they enforced the rules too strictly °. I n 1920 it
decided a case in which a moulders' union struck a second time
because one of their leaders was not taken back with the other
workers after the first strike. T h e company said that during the
negotiations this man had " become personal ". T h e court granted
1
Folsom Engraving Company v. McNeil, and Wright
Company
v. McNeil (1919), 1 Lav) and Labor, Dec. 1919, p. 26; and (1920), 2
Law and Labor 95.
=
Allen-Golles-Leighton
Company v. Maynard (1922, Massachusetts),
4 Law and Labor 76.
3
Carew v. Rutherford (1870), 106 Massachusetts 1.
4
People v. Barondess (1892), 133 New York 649, or 31 Northeastern
240. See also People v. IVnnsheimer (1907), 117 Appellate Division 603,
or 102 New York Supplement 579' (intermediate New York court).
5
Weston v. Barnicoal, 175 Massachusetts 454.
' De Minico v. Craig (1911), 207 Massachusetts 503.
IOS
PREEDOM OF ASSOCIATION
an injunction to hinder the strike '. Strikes to secure the reinstatement of discharged workers are usually unlawful. T h e Connecticut Supreme Court forbade the United H a t t e r s to encourage a
manufacturer not to make deliveries to a finishing contractor with
w h o m he had a contract ; it said the union m i g h t persuade him to
refuse to sell unfinished hats to the finisher 2 . A jurisdictional disp u t e is not a sufficient justification for calling a strike 3 . Picketing
to force discharge of negroes has recently been forbidden ".
T h e high degree of competition in the clothing trades has led
the unions to seek a larger measure of control over the organisation
of the industry t h a n is usual in other industries. I n 1920 a lower
N e w York court decided a strike was illegal which was intended to
make a m e n ' s clothing company keep up its manufacturing'
department (the place of manufacture had been burned) instead of
sending its work out to contractors 5 . I n the same year another New
York court forbade strike activities by the F u r W o r k e r s ' Union
because the demands were not ways of increasing wages or improving
working conditions, but were attempts to meet a situation caused
by depression in business and to obtain employment for discharged
workers. T h e union was demanding the closed shop, the fortyhour week, arbitration of discharge cases, equal distribution of
work in slack seasons, limitations on overtime, a holiday on May
Day, one apprentice to a shop, and unemployment insurance *. But
these decisions were exceptional. I n contrast another N e w York case
decided that it was legal for the women's clothing union to demand
registration of contractors, and the like 7. Strikes in violation of collective agreements are often illegal.
Other strikes for purposes somewhat out of t h e usual course of
business have been held legal. A N e w York lower court in 1909
stated t h a t a strike of machinists to secure the reinstatement of certain
1
Mechanics' Foundry v. Lynch (1920), 236 Massachusetts 504.
B. and W: Hat Shop v. United Hatters, reported in Justice, weekly
of the International Ladies' Garment Workers, 18 Aug. 1922.
* A company hired carpenters to erect metal trim. The structural
iron workers threatened to strike unless the work was given to their
members. The federal district court (New Jersey) forbade the strike,
17 April 1926. Dahlstrom Door Company v. Structural Iron Workers.
1
Wills v. Hotel and Restaurant Employees, Ohio, 2 July 1927, 9 Law
and Labor 201.
3
Welinsky v. Hillman (1920), 285 New York Supplement 257.
* Justice (International Ladies' Garment Workers' weekly), 22 Oct.
1
1920, p . 2.
7
Maisel v. Sigman, 123 Miscellaneous 714 (lower court of New York).
UNITED STATES OF AMERICA
100
foremen w h o were members of the union was legal in its purpose ; it
allowed an injunction against intimidating picketing and damages
directly traceable to it \ A shoe lasters' union in Massachusetts h a d
a .rule prohibiting t h e use of helpers because the practice of equal
distribution of work in slack times gave a m a n with a helper disproportionately more work than it gave to other workers. T h e union
struck and caused the discharge of a m a n w h o h a d his father as a
helper. T h e court decided (1911) that their object securing equal
distribution of work, justified t h e h a r m done to the two workers 2.
T h e Minneapolis Musicians' Union h a d a rule t h a t members were n o t
to play in theatres which did not keep their orchestras at a certain
m i n i m u m size. A theatre sought to enjoin them from enforcing t h e
rule. T h e Minnesota court decided (1912) that the interference was
warranted by the u n i o n ' s interest in having enough jobs for its
members '. T h e Massachusetts court took the opposite view *.
A standard text-book said in 1920 :
Almost never have the courts acted upon the theory that, inasmuch
as the strike is unlawful, all efforts of the workingmen to make it effective
must be prevented. Whether the strike is considered lawful or unlawful by
the courts makes little difference either in the phraseology of the
injunction or in its enforcement. In reference to damage suits the
situation is different. Most of the cases in which closed shop strikes have
been condemned grew out of actions for damages brought by non-union
workmen who had lost their jobs because of such strikes,
not upon the
unlawful conduct which may have accompanied them 5 .
Strikes whose object is subversion of the Government would be
illegal. I n t h e states which have criminal syndicalism statutes such
strikes would come under the statutes. Strikes for political reasons
are practically u n k n o w n in the United States. Some strikes have been
reported to be for ulterior subversive purposes. Strikes led by t h e
I.ÌW.W. are under this imputation ; for instance the W h e a t l a n d s
(California) hopfield riot in 1913 ". Similarly the Chicago general
strike for the eight-hour d a y in 1886, led b y the Anarchist Black
.
!
1
Jor.es v. Maker (1909), 62 Miscellaneous 388 (New York), affirmed
141 App. Division 919.
a
Minasian v. Osborne (1911), 210 Massachusetts 250.
• Scott-Stafford Opera House Company v. Minneapolis
Musicians'
Association (1912), 118 Minnesota 410.
* Haverhill Theatre v. Gillin, 229 Massachusetts 413.
6
John COMMONS and John ANDREWS : Principles of Labor Legislation (1920 edition), p. 107.
6
Reported in Carleton H. PARKER : The Casual Laborer (1920), Harcourt, Brace and Co., New York City, pp. 171-199.
no
FREEDOM OF ASSOCIATION
International ; the Seattle (Washington) general strike in 1919 l ; the
Passaic (New Jersey) textile strike of 1926 under the leadership of t h e
T e x t i l e U n i t e d F r o n t Committee of t h e T r a d e Union Educational
L e a g u e , a branch of the W o r k e r s ' (Communist) P a r t y .
PUBLIC NECESSITY
Public-
Utilities
Public utility services include steam railroads, interurban
electric railroads, street railways, telephones, telegraphs, electric
power, electric light, gas and water. T h e r e are other industries
which are subject to public regulation but which are not u n d e r
d u t y to provide continuous service to the public ; for instance, banking and insurance. T h e public service commissions
in the various jurisdictions regulate the prices which the corporations m a y charge, but they have no direct power over conditions of
labour. Strikes on public utilities are therefore not governed by
administrative law. T h e y are governed chiefly by court action. A
statement of their legal status is inserted at this point.
T h e group of public utility corporations which are under duty
to give continuous service have rights against strikers which are
somewhat greater t h a n t h e rights of private companies 2.. If there is
a strike on a public utility t h e company cannot give continuous
service unless it is free to obtain new workers without a n y sort of
hindrance from the strikers. Private companies also have the right
to be free from u n d u e hindrance by strikers. Just what r i g h t s a
company has because it is a public service company is not clear.
T h e leading cases are railroad cases 3. I n 1893 the locomotive
1
Alexander BING : War-Time Strikes (1921), N e w . York, Dutton,
p. 29. Compare The Seattle General Strike, issued by the History Committee of the General Strike Committee of the Seattle Central Labor
Council published by the Seattle Union Record. There were four city-wide
strikes and one city-wide lock-out during the war. See BING, p. 30.
2
Obiter dictum in the opinion of the federal Supreme Court which
decided that Congress had the power to fix eight hours as the basic working day on railroads : Wilson v. New (1917), 243 United States, at p. 352,
or 37 Supreme Court, at p. 303. See also G. J. THOMPSON : " Labor
and Law in the Public Utility Field " (1922), 21 Michigan Law Review
pp. 1-33 ; Moorefield STOREY : " The Right to Strike " (1922), 32 Yale
Law Journal, p p . 99-108 ; D. F . WILCOX : The Electric Railway Problem
(1921), published by the author in New York City, Chapter 45.
3
Also, the states statutes governing strikes on public utilities refer to
railroads. They are given in United States Bureau of Labor Statistics
Bulletin 370, see index under " Strikes on railroads ". The " open port
UNITED STATES OF AMERICA
II I
engineers struck on a railroad. T h e union h a d a rule t h a t all
members working for other railroads must refuse to handle the cars
of a struck railroad. T h e president of the union w a s to issue t h e
order calling on the members to obey the rule. T h e I n t e r s t a t e Commerce Act * required each railroad (and its agents) to provide
facilities equally to all other railroads. T h e struck railroad secured
an injunction against the union members which commanded them to
handle the cars or quit. T h e injunction forbade the president of t h e
Engineers t o order them to refuse to handle cars 2 .
I n 1894 the workers on a railroad under t h e receivership of a
local federal court threatened to strike. T h e court enjoined their
officers and commanded the workers, among other things, to refrain
from combining and conspiring to quit, with or without notice, the
service of said receivers, with the object and intent of crippling the
property in their custody, or embarrassing the operation of said railroad,
and from so quitting the service of the said receivers, with or without
notice, as to cripple
the property, or to prevent or hinder the operation
of said railroad 3 .
T h e national president of t h e Engineers intervened and the Circuit
Court of Appeals struck out the phrases commanding the workers not
to strike *. N o such direct injunction has been issued since ' n e n .
T h e famous Pullman strike of 1894 tied U P interstate c o r . n arce,
including t h e transportation of the mails. T h e r e was considerable
violence. T h e Federal Government sent troops and secured an
injunction against " interference " with business of the railroads.
T h e leaders of the strike were convicted of c o n t e m p t 5 .
T h e r e have been m a n y injunctions which have forbidden
officers of unions to call strikes which the courts said were illegal.
A strike on a railroad does not come clearly under that heading. In
1903 two of the train and engine service unions on the Wabash
law " which Texas passed at the time of the longshoremen's strike in
1920, was intended to give special protection to common carriers • and
workers working for them, against being molested by strikers. In 1926
the Texas Court of Criminal Appeals decided that this was an unreasonable classification and held the law invalid.
1
Interstate Commerce Act of 4 February 1887, 24 United States
Statutes at Large 379 ; as amended by 25 United States Statutes at Large
885.
2
Toledo, Ann Arbor, and North Michigan Railway Company v. Pennsylvania Company (1893), 54 Federal 730.
3
Farmers' Loan and Trust Company v. Northern Pacific Raüroaá
Co. (1894), 60 Federal 803.
1
Arthur v. Oakes C1894), 63 Federal 310.
* See United States v. Debs, 64 Federal 724 ; In Re Debs (1895),
158 United States 564.
112
FREEDOM OF ASSOCIATION
Railroad threatened to strike. T h e railroad at first obtained a
temporary restraining order against the union officers. I t averred
tüat the intention of the unions was to secure recognition and the
union shop. T h e court found that the demands made were for better
conditions. I t refused to continue the order \
I n 1907- the Switchmen had a collective agreement w i t h the
L a c k a w a n n a Railroad, which was due to r u n out 1 J a n u a r y 1908 ;
b u t it was to continue in effect until either side gave t h i r t y days'
notice. T h e union took a strike vote under the direction of the
national president, and he was about to ratify the decision to strike.
T h e railroad asked for a n injunction on t h e ground t h a t he was
inciting the workers to strike and break the agreement. T h e court
refused the injunction, on the ground that the workers h a d grievances
and that the president's actions were not incitement to strike or
inducement to break a c o n t r a c t 2 .
I n the most recent case — the shopmen's strike of 1922 — the
Federal Government, as in the Pullman case in 1894, did not secure an
injunction until the strike was well along. T h e r e had been m a n y
acts of violence and intimidation. T h e complaint of the Government
pointed out t h a t the railroads were dependent on repair work by
shopmen ; t h a t t h e strike contravened the wage award of the Railroad
L a b o r Board 3 (its awards were later held to have no legal effect) 4 ;
that the railroads were under d u t y to give continuous and safe service
and carry t h e mails ; that essential services like t h e carrying of soft
coal and of harvests were interrupted ; t h a t the unions were carrying
on picketing to prevent the railroads getting new workers ; t h a t they
were doing it by " unfounded conversations and a r g u m e n t s ,
i m p o r t u n i n g , threats of violence, intimidation, and other forms of
lawlessness " ; that the conspiracy was in restraint of interstate commerce in violation of the Sherman an ti-trust law. I t spoke of a
thousand mail trains discontinued, thousands of loaded freight cars
unmoved, most of them maliciously disabled, of dynamiting.
It
asked for an injunction against all interference with the business
1
Wabash Railroad Company v. Hannahan (1903), 121 Federal 5^3.
The doctrine that railroad workers may strike for lawful purposes is also
enunciated by J. W. BRYAN, 40 American Law Review 206, and in cases
cited in SAYRE : Case Book on Labor Law, p. 127, note, and p. 135, note 2.
* Delaware, Lackawanna, and Western Railroad Company v. Switchmen's Union (1907), 158 Federal 541.
s
Decision No. 1036, effective 1 July 1922.
4
Pennsylvania Railroad Company v. Railroad Labor Board (1923),
261 United States 72.
UNITED STATES OF AMERICA
II3
of the railroads, all persuasion of employees, etc. 1 . T h e injunction
was granted 3 . T h e strike was practically over at the time. Several
local injunctions had been granted previously, and many more were
granted later.
T h e principal injunction was made permanent t h e
following year, after counsel for the unions had formally w i t h d r a w n
from the case.
T h e present federal statute governing industrial relations on t h e
railroads provides that if conference and mediation fail to settle a
dispute and arbitration is rejected the President of the United States
m a y appoint an emergency commission of enquiry which shall report
within thirty days, and t h a t there shall be n o strike or lock-out
until thirty days after the commission has r e p o r t e d 3 .
War
Strikes
A similar group of cases were war-time s t r i k e s 4 . I n t h e
fall of 1917 the United Shoe W o r k e r s struck at a plant in
Brooklyn (New Y o r k ) . A federal mediator arranged a settlement
and the plant resumed work, but the union did not call off t h e
strike. A year later the company asked for an injunction. I t pointed
out that it was making shoes for the army. T h e New York state
lower court enjoined all striking for the duration of the war and
enjoined the intimidating picketing altogether". A federal court
took jurisdiction a i d issued an injunction in a case involving a
munitions plant in I issouri, on the ground that munitions were a
federal question G. T h e same court granted a bakery an injunction
against picketing, etc., which was considerably broader t h a n t h e
Clayton Act allowed. I t gave as its authority the Food Conservation
Act7.
1
The terms of this injunction are compared with the terms of the
Pullman strike injunction of 1894 in 37 Harvard Law Review 1010, n o i
ff. (1924), FRANKFURTER and LANDIS, " Power of Congress over Procedure
in Criminal Contempts ".
2
Bill of complaint filed 1 Sept. 1922 in the United States district court
for the Northern district of Illinois, eastern division, United States v. Railway Employees' Department of the American Federation of Labor, in
equity No. 2943. Washington, Government Printing Office, 1922.
3
Railway Labor Act of 20 May 1926, section 10.
4
Cf. Alexander BING : Wartime Strikes and their Adjustment (1921),
Dutton, New .York. It contains very little legal material.
5
Rosenwasse Brothers, Inc., v. Pepper (1918), 104 Miscellaneous (New
York) 457, 475 ; adversely criticised in 32 Harvard Law Review 837,
May 1919.
6
Wagner Manufacturing Co. v. Machinists (1918) 252 Federal 597.
Act of 10 August 1917, chap. 53, sec. 4. The case was Kroger
Grocery and Baking Co., v. Detail Clerks (1918), 205 Federal 890.
Freedom of Association
-I4
FREEDOM OF ASSOCIATION
A year after the Armistice was signed the soft coal miners of the
United States struck for an increase of wages. T h e y were working
under a collective agreement which was to run for the duration of
the W a r , but not beyond i April 1920. T h e federal Congress had
not yet voted peace with G e r m a n y . T h e strike was ordered for
1 November 1919.
T h e Attorney-General of the United States
secured a temporary restraining order forbidding the officers of the
United Mine Workers to put the strike order into effect or pay out
strike benefits \ T h e workers struck o n 1 November. On 8 November the court ordered the officers to call off the strike. T h e y did
this. Most of the miners did not go back to work until the president
of the United States offered an immediate increase in wages and an
arbitration. T h e court found its authority in the Uever A c t 2 which
gave the Federal Government control over food and fuel for the
duration of the war. W h e n this Act was passed it had been stated
t h a t " the administration does not construe this Bill as prohibiting
strikes and peaceful picketing " 3.
T h e Act was later held
unconstitutional on the ground that it w a s too vague, in a case against
a grocery company for profiteering *.
Public
Servants
Very few public servants are organised.
T h e y do not use
the strike. T h e only prominent case of it was Boston police
strike of 1919 5 . A number of cities have laws forbidding strikes
1
United States v. Hayes (1919), United States District Court for the
district of Indiana, reported in 1 Law and Labor, December 1919, pp. 2-5.
See also SAYRE : Cases on Labor Law, p. 757. The injunction is discussed
in Harvard Law Review 401-407 and 5 Cornell Law Quarterly 1S4. A similar case was West Virginia Traction and Electric Company v. Elm Grave
Mining Co., 253 Federal 772.
3
40 United States Statutes at Large 276, and 41 the same 298.
3
Congressional Record, 65th Congress, ist Session, p. 5904.
4
United States v. L. Cohen Grocery Co. (1921), 255 U.S. 81, or 41
Supreme Court 298
5
It had been the practice of the American Federation of Labor to
forbid strikes in the charters it granted to policemen's unions. For many
years no policemen's locals were organised. At the June 1919 convention
of the Federation a resolution was passed favoring granting charters with
the power to strike. Proceedings, p. 302. " In less than four weeks there
were thirty-five organisations of policemen which had sent in applications
for charters — never so many from one class of workers in the history of
the Federation. " American Federationist, Feb. 1920 p. 135. The Boston
UNITED STATES OF AMERICA
"5
among public servants \ T h e federal Congress passed a law in 1912
which forbade discrimination by the Post Office against postal workers
w h o might organise to petition for a redress of their grievances,
provided that they were not connected with an organisation which
used strikes 2 .
police struck because nineteen men prominent in the union were tried and
dismissed for violating the rule which forbade membership in any organisation which affiliated with any federation except one of war veterans.
Efforts to settle the strike and to have the men reinstated were not successful. Governor (later President) Cool'idge, said that he was unwilling
" to place the maintenance of public security in the hands of a body of
men who had attempted to destroy it ".
1
Ordinances upheld in McNatt v. Lowther (firemen, Texas Court of
Civil Appeals, 9 June 1920) 223 Southwestern 503 ; San Antonio Fire
Fighters v. Bell (firemen, Texas Court of Civil Appeals, 19 June 1920)
223 Southwestern 503 ; Hutchinson v. Magee (firemen, Court of Common
Pleas, Allegheny County, Pennsylvania, 20 October 1922) 70 Pittsburgh
Legal Journal 945 ; People ex relatione Fursum v. City of Chicago (teachers, 1927) 278 Illinois 31S. The City of "Washington (District of Columbia) is covered by federal statutes forbidding its policemen or firemen to
belong to unions. Act of 5 Dec. 1919, 41 U.S. Statutes at Large
364 (police) ; Act of 24 Jan. 1920, 41 the same 338 (firemen). See
also 5 Law and Labor 232 (strike of garbage collectors in Chicago, conspiracy to injure the public health). The subject is taken up by Sterling
SPERO : The Labor Movement in a Government Industry (1924), George H.
Doran Company, New York City, Chapter II, " Civil Service Unionism
and the Law ", pp. 45-56.
3
Act of 24 Aug. 1912, U.S. Statutes at Large 555.
CONCLUSION
In the United States workers or employers are free under the
law to form associations. Workers' associations are free to bargain
collectively if they can induce the employers to negotiate. In
persuading an employer, it is illegal for a workers' association to
damage the business of the employer by undue pressure upon his
employees or his customers. A company or an employers' association is free to arrange terms of work with workers individually, if
it can resist the pressure of whatever workers' association exists in
the industry. This freedom of the employing company is reinforced
by the duty of workers' associations not to interfere unduly between
the company and the workers with whom it has individual agreements.
Almost all the court proceedings in industrial relations cases have
been brought against workers or labour unions or their officials. It
is somewhat established what they may and may not do to further
their interests. The law has done very little specifying of duties for
employers' associations or for employers.
There are many independent jurisdictions and the law is changing
somewhat, so that it is impossible to make absolute statements about
the law of associations. In general, it may be said that in case
unorganised workers strike and form a union and demand better wages
and shorter hours and recognition for their union, the employing
company can usually make no legal objection. If the striking
workers undertake to picket the plant in order to induce the
employees who stay at work, or who are newly hired, to join them,
they are approaching unlawfulness. Picketing usually involves more
than peacefully suggesting to employees that they join the strikers.
It may involve armed violence, which is unlawful. It may involve
intimidation through threats of violence or through the presence of
large numbers of strikers. This has been held unlawful by most
courts. It may take the form of calling names or persistent and
annoying persuasion. This had been held unlawful by many courts.
A few cases have said that it was unlawful to play upon the sympathy
UNITED STATES OF AMERICA
"7
of employees. Acts related to these, such as visiting employees in
their homes and offering them strike benefits or railroad fare back
to their homes if they will quit, have been held unlawful by various
courts.
A strike may be won by the workers by confining themselves to
what they believe to be legal actions and what the courts hold to be
lawful actions, or by using unlawful means. If it is won, the result
may be a collective agreement with the employing company.
(i) This agreement usually is enforced by the company's fear of a
strike if it breaks the agreement, and by the organised workers' fear
that if they break the agreement the company will not again trust
them enough to make a settlement with them. But courts have
occasionally given official recognition to those provisions (of collective
agreements) which set the rates of wages. (2) Usually it is understood that either side may end the agreement at will. Yet courts have
occasionally looked upon collective agreements that purported to run
for a certain period as legally binding in their provisions that there
should be no strikes before the end of the period ; they looked upon
strikes which violated the agreement as unlawful strikes. In case
of an unlawful strike a court cannot forbid the workers to quit or
order them to go back to work. It can if it wishes forbid their
officers to carry on the strike, and forbid the strikers to picket or
persuade other workers to quit.
A strike may also be held unlawful because its purpose is held
unlawful. For instance, the labour union may feel that recognition
by the company is endangered by the presence of many workers on
the force who are not members of the union ; or that it deserves dues
from every worker whose conditions of work it has raised. It may
therefore strike for the closed shop. Many courts have held that this
is an unlawful purpose and that it is unlawful to do any act to
further it.
Still another sort of strike whose purpose is often held unlawful
is the strike to help other unionists. There have been sympathetic
strikes to help a union in a different craft or trade in the same city.
There have been strikes against non-union materials, to help members
of the same union or another union who produce the same sort of
materials. There have been boycott strikes by unionists to induce
companies not to deal with a particular company which refused to
come to terms with other members of the union. These strikes have
usually been held unlawful.
Another type of boycott is the boycott by ultimate consumers.
ÏI8
FREEDOM OF ASSOCIATION
Unionists have induced patrons of restaurants or theatres not to go
there any more. They have notified members of unions throughout
the country to withdraw their custom from merchants who dealt in
goods of an offending company. This sort of boycott also is usually
unlawful.
A boycott is unlawful if it brings undue pressure to bear on
persons or companies who are not members of the original dispute
but who have business relations with them. To some courts only
violence or intimidation is undue pressure. To others unusual
economic pressure is unlawful. Others forbid persuasion if it is to
further a boycott.
The efforts of labour unions in the United States to organise the
unorganised are limited by the employing companies' rights to be
free from undue pressure and to have their employees free from
undue pressure. The nature and extent of their rights have just been
sketched. Their rights are reinforced by a recent practice of openshop companies in the United States. They require each employee
to agree not to join the union. The courts usually hold that the
open-shop relation established by this agreement should be protected
and that the union's efforts to persuade these non-union workers to
become organised is unlawful.
BIBLIOGRAPHY
The bibliography covering the various aspects of Freedom of Association in the United States is exceedingly voluminous and only a small
selection of the large number of works listed can be given here. The
book referred to in t h e Prefatory Note * may be specially mentioned as
an exhaustive and up-to-date textbook on the question. The bibliography
on " Injunctions in Labour Disputes " published in the Monthly Labor
Review of the Bureau of Labor Statistics, September 1928, will also be
found particularly useful in t h e study of this phase of t h e question.
UNITED STATES BUREAU O F LABOR STATISTICS.
Labor Laws
of the
United States, with Decisions of Courts relating thereto. Bulletin 370,
May 1925 ; and subsequent annual Bulletins supplementing it. (See
also : Labor Lamas that have been Declared Unconstitutional.
Bulletin
321, November 1922.)
Decisions of Courts and Opinions affecting Labor.
Bulletin
112 (and subsequent annual Bulletins).
Handbook of American Trade Unions. Bulletin 420, October
1926.
UNITED STATES CONGRESS.
COMMISSION ON INDUSTRIAL RELATIONS.
Industrial Relations : Final Report and Testimony.
Senate Document
No. 4(5 of the 64th Congress, i s t session. (Volume 11 (testimony, 1915)
pp. 10451-10928 : " Labor and t h e Law. ")
BLUM, Solomon.
and Company, 1925.
Labor Economics.
BRISSENDEN, Paul F . The I.W.W.:
New York City, Macmillan, 1922.
New York City, Henry Holt
a Study, of American
Syndi-
BRISSENDEN, Paul F. The I.W.W.:
/> Study of American
calism. New York City, Columbia University, 1919.
Syndi-
BUDISH, Jacob M. and SOÛLE, George. The New Unionism in the
Clothing Industry.
New York City, Harcourt, Brace and Company, 1920.
CARROLL, Mollie Ray. Labor and Politics : the Attitude
American Federation* of Labor toward Legislation and Politics.
and New York City, Houghton Mifflin Company, 1923.
CLARK, Lindley, D. The Law of the Employment
York City, Macmillan, 1911.
of the
Boston
of Labour. New
1
Edwin Stacey OAKES : The Law of Organized Labor and Industrial
Conflicts. Rochester and New York, Lawyers' Co-operative Publishing
Company, 1927
I20
FREEDOM OF ASSOCIATION
COMMONS, John R. and A N D R E W S , John B.
Principles
of
Labor
Legislation.
New York City, Harper and Brothers, 1927.
and GILMORE, Eugene A. (editors). A Documentary
History
of American Industrial Society. 10 volumes. Cleveland (Ohio), Arthur
H . Clark, 1910.
and Associates. History of Labor in the United
States.
2 volumes. New York City, Macmillan, 1918.
FITCH, John A. The Causes of Industrial
London, Harper and Brothers, 1924.
Unrest.
New York and
HoxiE, Robert F. Trade Unionism in the United States.
edition. New York and London, Appleton, 1923.
JONES, F . D . Trade Associations
London, McGraw, Hill, 1926.
LAMBERT, E . and BROWN, H .
travail organisés aux Etats-Ufiis.
NATIONAL
INDUSTRIAL
Revised
and the Law. New York City and
La lutte
judiciaire
du capital et du.
Paris, Giard, 1923.
CONFERENCE BOARD.
Trade
Associations,
Their Economic Significance and Legal Standing.
New York City,
National Industrial Conference Board, 1925.
The Growth of Works Councils in the United States. New
York City, National Industrial Conference Board, 1925.
PERLMAN, Selig. A History of Trade Unionism in the United
New York City, Macmillan, 1922.
POLLAK, Heinrich. Die Gewerkschaftsbewegung
Staaten.
Jena, Gustav Fischer, 1927.
in den
States.
Vereinigten
SAPOSS, David J. Readings in Trade Unionism : Labor Organisation
Principles and Problems as Discussed by Trade Unionists in their
Official Publications and Writings.
New York City, Doran, 1926.
SAYRE, Francis B. A Selection of Cases and Other Authorities on
Labor Law. Cambridge (Massachusetts); Harvard University P r e s s ;
London, Humphrey Milford, the Oxford University Press.
WOLMAN, Leo. The Boycott in American Trade Unions.
Johns
Hopkins University Studies in History and Political Science, Series 34,
No. 1. Baltimore (Maryland), Johns Hopkins University Press, 1916.
The Growth of American Trade Unions, 1880-1Ç23. New York
City, National Bureau of Economic Research, 1924.
CANADA
CHAPTER I
THE EVOLUTION AND PRESENT POSITION
OF TRADE UNIONISM
§ 1. — The Development of Legislative Regulation
In Canada, as in most countries, the legislative and legal
evoiaiicn of freedom of association is somewhat complicated and
difficult to follow. The uncertainty of the precise position of the law
relating to trade unions has on sundry occasions been accentuated by
the fact that it was not always possible to know to what extent
English common law and statute law dealing with this question
applied in the Dominion. An additional difficulty arises out of the
federal nature of the Constitution, since, by the British North America
Act, 1867, the administration of the criminal law is assigned to thé
Dominion, while questions of civil and property rights appertain to
the Provinces, thus making trade unions subject to both jurisdictions.
The early history of freedom of association in Canada is not of
great importance and does not require to be traced out in any detail.
For the most part it ran on lines roughly parallel to the British
movement of that time. The British common law doctrine oi
criminal conspiracy was accepted in the early colonies of British
North America. In 1800, Upper Canada formally adopted the
criminal law of England as it stood on 17 December 1792. In 1841
and 1869 Dominion Acts (Chapter 27 and Chapter 20 respectively)
were passed, relative to offences against the person, which were of
interest to trade unionists. The latter, in an amended form, is still in
force. There was also some provincial legislation bearing on freedom
of association (e.g. in Nova Scotia) based on the repressive legislation
122
FREEDOM OF ASSOCIATION
in force in England prior to 1825. In z^4 Nova Scotia adopted
an Act (Chapter 11) which was practically a replica of the English
statute of 1825 (Chapter 129), freeing trade unions from certain of
the more onerous restrictions.
The question of the right to combine was first brought into
prominence, however, by the printers' strike in Toronto in 1872,
which was accompanied by the arrest of certain of the strikers and
an appeal to the Dominion Government. The result was the Trade
Unions Act, 1872 (Chapter 30).
This measure was in most respects identical with the English
Act of the previous year. It differed in one important particular,
inasmuch as it applied only to trade unions that registered under it.
The Act laid down that " the purposes of any trade union shall not.
by reason merely that they are in restraint of trade, be deemed to
be unlawful so as to render any member of such trade union liable
to criminal prosecution for conspiracy or otherwise ". It provided
also that agreements between union members should not be
enforceable under the law, but should nevertheless not be considered
unlawful.
During the same year the Dominion Parliament passed " an Act
to amend the criminal law relating to violence, threats and
molestation " (1872, Chapter 31), which followed in most particulars
the English statute of 1871 dealing with this question. This Act
provided that workmen making agreements to fix wages or using
peaceful persuasion could not be indicted for conspiracy ; but
coercive methods were declared illegal and their use brought
a combination under the taint of conspiracy.
This Act was strongly opposed by labour organisations, and a
new Act was passed in 1875 (Chapter 39). The new Act was in
turn repealed by an Act of 1876 (Chapter 37) which reproduced in
part the English Conspiracy and Protection of Property Act, 1875.
The 1876 Act defined the types of coercion prohibited in disputes,
laid down the doctrine that any act lawful for an individual would
be lawful when done in combination, and legalised peaceful
picketing.
In 1877 an Act reproducing further sections of the English
Conspiracy and Protection of Property Act, 1875, was adopted. This
Act (1877, Chapter 35) provided that in general a breach of contract
of service should be a civil wrong and no longer a crime, but that
" certain wilful and malicious breaches of contract, involving danger
I23
CANADA
to persons or property, or grave public inconvenience, should be
punished as crimes ". This provision, which is still in force, applied
to work in public utilities.
Of the remaining legislative changes affecting freedom of
association, only the more important need be mentioned in the present
brief résumé.
In 1889 " an Act for the prevention and suppression of
combinations formed in restraint of trade " practically nullified the
protection against the law of conspiracy afforded by the Trade
Unions Act. In 1892, however, when the Criminal Code was
consolidated, the provisions of this Act were omitted, and at the
same time the protecting clause of the Trade Unions Act.was made
applicable to all unions and not to registered unions only as before.
On the other hand, while the trade unions were able to secure
this important provision, the peaceful picketing clause of the Act
of 1876 (Chapter 37) was omitted from the Code. This omission was
of considerable importance, subsequent conflict between trade unions
and the law having been to a great extent over this question of
picketing. Sections with regard to seditious offences and other
sections relating to common nuisance, having a possible effect upon
trade union action, were written into the Code at the same time.
The following table (taken from Canadian Labour Laws and the
Treaty, by Bryce M. Stewart, pages 135-136) "shows the basic
Dominion legislation relating to trade unions with subsequent
amendments :
DOMINION LEGISLATION RELATING TO TRADE UNIONS
Original provisions
Corresponding sections
in Criminal Code,
1892 (Chapter 29)
1869, Chapter 20, sections 41- 524-525
42 : On intimidation of
ship workers and violence
in trade disputes, as
amended in 1887, Chapter
49-
Corresponding sections
Revised Statutes, 1906
(Chapter 146)
503
1872, Chapter 30 : Declared 517 : Extended this 497
registered unions not li- clause to all trade
able to conspiracy charge unions whether remerely because their pur- gistered or not.
poses were in restraint of
trade.
124
FREEDOM OF ASSOCIATION
Original provisions
Corresponding sections
in Criminal Code,
1892 (Chapter 29)
Corresponding sections
Revised Statutes, 1906
(Chapter ¡46)
1872, Chapter 31 : Declared
that certain coercive methods in trade disputes
would bring the combination within the conspiracy
doctrine.
1875, Chapter 39 : Amended
1872, Chapter 31, but repealed by 1876, Chapter 37.
1876, Chapter 37, section 1 : 523 : Peaceful picket- 501 : Accused given
Repealed much of 1872, ing- section omitted. right of trial by jury
Chapter 31 ; defined the
in picketing cases by
coercive acts forbidden in
1905, Chapter 9, sectrade disputes and legaltion 3.
ised peaceful picketing.
1876, section 3 (2): Defined 519" trade combination ".
2 (38)
1876, section 4 : Limited 518 : " Indictable " 59°
conspiracy in trade dis- changed to "punishputes to offences indictable able " in Revised
by statute o* "'^ishable Statutes, 1886, Chapunder this act itself.
ter 173, section 13
amended 1890, Chapter 37, section 19.
1877, Chapter 35, section 32 : 521.
Wilful breaking of contracts of service in certain occupations penalised.
499
889, Chapter 41 : Anti-com- 498 : The anti-union 498 : Unions exempted
bines law which made clause omitted.
from combines secunions, whether registered
tion by subsection 2,
or not, liable for conspirinserted by 1900,
acy in restraint of trade by
Chapter 46, section 3
annulling (section 6) the
protective clause of 1872,
Chapter 30.
132-134 : Inserted in 132-134, section 133 :
the Code, providing Enumerated certain
2 years' imprison- non-seditious
acts
ment (20 years by repealed by 19191919, Chapter 46)
Chapter 46.
for seditious words,
seditious libel, and
seditious conspiracy.
221-222 : Defined and
penalised " common
nuisance ".
221-222.
I2
CANADA
5
I n addition to these provisions, dealing specifically with freedom
of association, other legislative enactments concerning the right of
action in association must be noted. Of these the most important
is the Industrial Disputes Investigation Act, 1907 (also known as
the Lemieux A c t ) , which places certain restrictions on the right to
strike or to lockout in m i n i n g , transportation, and public utility
undertakings.
§ 2. — T h e Evolution and Present Organisation of Trade Unions
WORKERS'
TRADE
UNIONS
T h e A n n u a l Reports on Labour Organisation in Canada, compiled
and published by the Department of Labour of Canada, give explicit'
information of the progress of trade unions in t h a t country. T h e
following brief history of trade unionism in Canada is taken from
t h e Fourteenth Annual Report for the Calendar Year IQ24. I t should
be explained that by the term " international union ", as used in
Canada and the United States, is meant those bodies having branches
in both of these countries.
According to records available, tne first trade association in Canada
was composed of printers, and was organised in the city of Quebec in
1827. It is n ° t known whether this body lapsed or was absorbed by the
Canadian Typographical Society, which was composed of both English
and French printers and pressmen, and was an active body in the city
of Quebec in 1836. This society was, however, dissolved in the following
year, and was succeeded in 1855 by the Quebec Typographical Society,
which continued until 1872, in which year the society was reorganised ;
two unions were established (No. 159 for the French-speaking printers
and No. 160 for the English) under charters from the International
Typographical Union. This last body formed in 1852, in Cincinnati,
Ohio, as the National Typographical Union, was in 1869 changed from
a national to an international body by reason of its jurisdiction in 1865
having been extended to the provinces of Canada. With a view to a
concentration of efforts, the two Quebec unions were merged in 1893,
and a new charter (No. '302) was issued, under which the union is still
functioning. The first union known to have been formed in Ontario
was also composed of printers, and was organised in York (now Toronto)
under the name of York Typographical Society, as early as 1832. This
society, which lapsed in 1836, was reorganised in 1843 as the Toronto
Typographical Society, and in 1866 became identified with the National
Typographical Union (referred to above) as Toronto Typographical Union,
No. 91, and which is its present title.
The Amalgamated Society of Engineers, a British organisation
composed of metal mechanics, established a branch in Toronto in 1851,
other branches being subsequently formed in Canadian localities. In
1888 the United Machinists and Mechanical Engineers of America was
formed in Atlanta, Georgia, and soon became a competitor for the
organisation of the craftsmen eligible for membership in the Amalgamated
Society. The first Canadian lodge of the United States body was organised
in Stratford, Ontario, in 1890, and was granted charter No. 103. Lodge
No. n r and lodge No. 122 were formed in Montreal and Winnipeg
respectively before the close of the same year. To meet the extension
I2Ó
FREEDOM OF ASSOCIATION
of its jurisdiction into Canada, the United States body in 1891 changed
its name and became the International Association of Machinists. Several
clashes having occurred between members of the rival organisations, the
Amalgamated Society of Engineers in 1920, as a result of negotiations,
withdrew its operations from Canada, and also from the United States,
where local branches were also in existence, and left the whole North
American continent to the International Association of Machinists.
Another British labour organisation which at an early date established
local branches in Canada was the Amalgamated Society of Carpenters
and Joiners (now the Amalgamated Society of Woodworkers), which in
i860 chartered a branch in London, Ontario, composed of members who
had emigrated to Canada, twenty-one years before the United Brotherhood
of Carpenters and Joiners, now the chief organisation of woodworking
mechanics in North America, came into existence. After a series of
conflicts between the members of these two carpenter unions, a
solidification for trade purposes was effected in 1913, the members of the
Amalgamated Society retaining their connection with the parent body
for its beneficial features. During later years other disagreements have
occurred, the result being that in 1923 the United Brotherhood declared
that the plan of solidification was no longer in effect.
In 1885 the Knights of Labour, an organisation formed in the United
States in 1869, membership in which was open to all classes of' workers,
began the establishment of local assemblies in Canada, chiefly in the
cities of Quebec and Ontario, some of the assemblies having very large
memberships. Mainly because of internal dissension which developed in
1893, the organisation gradually lost its following, and of the seventeen
Canadian assemblies which were operating in the province of Quebec in
1891 fifteen soon after this date passed out of existence. Two assemblies,
both in the city of Quebec, survived for a while, and on the further
disintegration of the Knights of Labour were revived as independent
bodies, having no connection with a central organisation, and as such,
though not very strong, are still existing. A factor unfavourable to the
Knights of Labour was the union of the international craft organisations
under the banner of the American Federation of Labour, which was
formed in 1881, and which now embraces in its membership the majority
of trade unionists on the North American continent, while the Knights
of Labour has only a small following located exclusively in the United
States.
Thus printers may properly be termed the pioneers of trade union
organisation in the Dominion, a movement which, according to the figures
published in 1912 in the First Report on Labour Organisation in Canada,
embraced at the close of 1911 a membership of 133,132, of which 119,415
members, comprised in 1,531 local branches, were identified with
international trade unions, the remaining 13,717 members comprised in
191 branches, being connected with non-international bodies. At the close
of 1913 the total membership of all classes of unions stood at 175,799.
During the following three years the membership fluctuated, but in 1917
rose to 204,630 ; the highest level of membership was in 1919, when there
were 378,047 organised trade unionists in Canada, comprised in 2,847 'ocal
branches, of which 260,247 were identified with international organisations
having 2,309 Canadian branches.
These figures show that the
international following increased during 1919 by 58,815 members and
412 branches, notwithstanding the defections occasioned by the advent
of the organisation known as the One Big Union ; the other groups,
embracing (1) non-international unions, (2) national and Catholic
unions, (3) One Big Union, and (4) independent units, had between
them 117,800 members, comprised in 538 branches. Although the
non-international bodies and independent units had losses, these were
offset by the reported following of the Catholic unions and the One Big
Union, the net increase for the four groups being 70,345 members and
161 branches. During the three following years trade union membership
in the Dominion, as in many other countries, showed a steady decline,
CANADA
I27
the standing in Canada at the close of 1922, according to information
supplied, being 276,621, comprised in 2,512 branches. In 1923 there was
an increase of 1,471 in members of all classes of unions, the total being
278,092, while the number of branches reported as being in existence
stood at 2,487, a decline of 25.
During 1924 the number of Canadian branches decreased by 58
and the number of trade unionists fell off by 17,449, the totals for
the year being 2,429 branches and 260,643 members. F r o m t h a t
time onward the membership of Canadian trade unions has steadily
increased.
At the close of 1928 the number of branches and the reported
and estimated membership of the various classes of labour
organisations operating in Canada were as follows :
International craft unions . . . . . . .
One Big Union
Industrial Workers of the World . . .
Canadian Central Labour Organisations
Independent units
National Catholic unions
Totals
Branches
Membership
1,873
7
46
586
¿ó
105
186,917
4,400
20,029
51,858
Hi398
26,000
2,653
300,602
While the bulk of organised labour on the N o r t h American
continent recognises the American Federation of Labour as the head
of the labour movement in so far as trade union affairs are concerned,
the Trades and Labour Congress of Canada is the organisation which
deals with legislative matters appertaining solely to organised labour
in the Dominion.
T h e T r a d e s and Labour Congress of Canada was originally
established in 1873, and reorganised in 1886. T h e total n u m b e r of
members affiliated with the T r a d e s and Labour Congress was 143,582
in 1928.
T h e conventions of the Congress are held annually,
a n d at these meetings demands for desired legislation are introduced.
I n 1920 the congress became affiliated to the International Federation
of T r a d e U n i o n s in Amsterdam, and in 1925 was given representation
on the general council of t h a t organisation.
I n addition to the T r a d e s and Labour Congress there is a central
body k n o w n as the All-Canadian Congress of L a b o u r , which came
into existence in 1927. One of its principal aims was to free the
Canadian labour movement " from the reactionary influence of United
States-controlled unions ". I n 1928 it had a membership of approximately 50,000, comprising 29,904 members belonging to Canadian
central labour organisations and the whole of the membership of the
One Big U n i o n .
128
FREEDOM OF ASSOCIATION
EMPLOYERS'
ASSOCIATIONS
E m p l o y e r ' s associations in Canada are numerous and well
organised, b u t there has been little permanent combination for t h e
purposes of industrial relations. T h e following details (taken from
Canadian Labour Laws and the Treaty,
by Bryce M. Stewart,
pages 179-181) are of interest in this connection :
The constitution of the Employers' Association of Toronto, organised
in 1902, included the following as among the objects of that body :
The adoption of a uniform legitimate system whereby members
may ascertain who is, and who is not, worthy of their employment.
. . . To endeavour to make it possible for any person to obtain
employment without being obliged to join a labour organisation, and
to encourage all such persons in their efforts to resist the compulsory
methods of organised labour 2.
The Canadian Manufacturers' Association has a department of
industrial relations and the Employers' Association of Manitoba, organised
in 1920, declared for the " open shop " principle, but stated that the
association was not intended to combat unionised labour 5 . The Canadian
Founders and Metal Trades Association, according to the report * of the
Department of Labour, seeks to secure for employers and employees
freedom of contract in the matter of employment, irrespective of
membership in this or any kindred association ; to discountenance
conditions which, are not just and which will not allow a workman to
earn a wage proportionate to his productive capacity, and to oppose
restriction of output, sympathetic strikes and boycotts ; to harmonise
differences between employers and employees so that justice may be
done to both, to prevent interference with those seeking work, and to
avert industrial disturbances. The Western Coal Operators' Association
proposes to " discourage lockouts, strikes and boycotts, and all kindred
movements ". The Shipping Federation of British Columbia plans to
oppose " any injurious encroachments of organised unions affecting
shipping interests ". The Association of Canadian Building and
Construction Industries, the Cloak Manufacturers' Protective Association,
and the Canadian Society of Domestic, Sanitary and Heating Engineers
deal with labour questions or endeavour to promote better relations
between employers and workers. Three Canadian associations of master
printers are identified with the United Typothetae of America, an
organisation which gives close attention to questions of industrial
relations.
Temporary combinations of employers to meet serious labour
situations rather than permanent organisations have been the rule. The
Royal Commission on Industrial Relations reported in 191g :
We found that the employers had several forms of association . . .
but with few exceptions we were told they were not for the purpose
of arranging or controlling hours, wages, or general works
conditions 4 .
1
Labour Gazette, Vol. I l l , pp. 375-376.
" Ibid., Vol. XX, p. 498.
3
DEPARTMENT O P LABOUR : Fourth Report on Organisation
Industry, Commerce and the Professions. Ottawa, 1925.
* Royal Commissions on Industrial Relations, 1919, p. 18.
in
CHAPTER II
T H E LEGAL STATUS OF T R A D E UNIONISM
§ 1. — The Right to Combine for Trade Purposes
F r o m a purely legal point of view the individual right to combine
for trade purposes in Canada is unquestioned ; b u t in actual fact
this right is circumscribed to a considerable extent by the attitude
of certain employers. Some extracts from a report of a Committee
of the Privy Council (1918) and of the National Industrial Conference
(19x9) are illuminating in this respect.
T h e report of the Committee of the P r i v y Council dated 11 July
1918 laid down certain principles and policies and urged their
adoption by both employers and w o r k m e n " for the period of the
war ". A m o n g these principles and policies t h e following have a
bearing upon the substantive right to combine for trade purposes :
That all employees have the right to organise in trade unions, and
this right shall not be denied or interfered with in any manner whatsoever,
and through their chosen representatives should be permitted and
encouraged to negotiate with employers concerning working conditions,
rates of pay, or other grievances.
That employers shall have the right to organise in associations
of groups, and this right shall not be denied or interfered with by
workers in any manner whatsoever.
That employers should not discharge or refuse to employ workers
merely by reason of membership in trade unions or for legitimate trade
union activities outside working hours.
That workers in the exercise of their right to organise shall use
neither coercion nor intimidation of any kind to influence any person to
join their organisations or employers to bargain or deal therewith.
That in establishments where the union shop exists by an agreement
the same shall continue and the union standards as to wages, hours of
labour and other conditions of employment shall be maintained.
That in establishments where union and non-union men and women
now work together, and the employer meets only with employees or
representatives engaged in such establishments, the continuance of such
conditions shall not be deemed a grievance.
I n point of fact the employers' right to employ whomsoever he
Freedom of Association
I30
FREEDOM OF ASSOCIATION
wishes has, in some cases, been used more or less openly to fight
trade unionism, the closed and open shop controversy of the United
States finding a certain counterpart in Canada. Refusal by employers
to deal with the accredited officers of trade unions is still more
common. T h e following reports from the employees' a n d employers'
representatives respectively of a committee of the National Industrial
Conference held in Ottawa in September 1919, reveals plainly the
cleavage of opinion.
T h e employees' report reads as follows :
The Labour Representatives of your Joint Committee, to whom was
referred item Number 4 of the revised agenda, viz : consideration of :
(a) employees' right to organise ; (b) recognition of labour unions ;
and (c) the light to collective bargaining, respectfully submit
the following report, with recommendations, for your favourable
consideration :
1. With a view to effecting and maintaining harmonious relations
between employers and employees, this Conference declares the following
principles and policies, and urge their adoption by all employers, relative
to their respective employees :
(a) the right of employees to organise ;
(b) the recognition of labour unions ;
(c) the right of employees to collective bargaining.
2. In these recommendations, without changing the generality of
their terms :
(a) " the right of employees to organise " means the right of
employees to organise or form themselves into associations
for lawful purposes ;
(b) " the recognition of labour unions " means the right of
employees, or their duly accredited representative or
representatives, to recognition of their employer or employers,
for the purpose of mutually arranging rules and regulations
governing wages and working conditions ;
(c) " the right of employees to collective bargaining " means
the negotiation of agreements between employers or groups
of employers and employees or groups of employees, through
the representative or representatives chosen by the respective
parties themselves. Entering into agreements and bargaining
collectively with an association or union of employees does
not mean recognition of the " closed shop ", unless the agreement so provides ;
(d) " employer " or " employers ", as used in clause 1 and 2,
means any employer or employers of any industry and of
federal, provincial and municipal Governments.
3. That the federal and provincial Governments be urged to enact
legislation applicable to industries within their respective jurisdiction,
to make it unlawful for any employer who shall discharge or refuse to
employ or in any manner discriminate against employees merely by
reason of membership in labour unions or for legitimate labour union
activities outside of working hours.
T h e employers' report, submitted at the same time, is to the
following effect :
CANADA
!3I
Your Committee recommend that :
(a) employers admit the right of employees to join any lawful
organisation ;
(b) employers should not be required to recognise unions or to
establish " closed shops .".
Employers insist on the right, when so desired, to maintain
their plants as " open shops ", by which they mean that no
employer should discriminate against any employees because
of the latter's membership or non-membership in any
organisation, and no employee should interfere _ with any
other employee because of the latter's membership or nonmembership in any organisation ;
(c) employers should not be required to negotiate, except directly,
with their own employees or groups of their own employees \
T h e report of t h e National Industrial Conference itself deals at
some length with this " denial of right to organise ". Employers in
Canada, it is stated, m a y be divided into three classes :
( i ) Those who deny t h e right of their employees to organise and
who actively take steps to prevent such organisations.
(2) Those w h o while not denying t h e right of their employees
to organise refuse to recognise organisation among their
employees and persist in dealing with them as individuals
or as committees of employees without regard to their
affiliation with t h e organisation.
(3) Those who not only admit t h e right of their employees to
organise b u t recognise and bargain with t h e organisation on
betíalf of their employees.
T h e report continues :
There are not many employers in Canada who belong to the first
class, but there are a very large number who belong to the second class.
The employers who openly object to their employees organising are not
many ; but, rightly or wrongly, the workers believe that numbers of
employers who openly declare their willingness that their employees
should organise, covertly interpose obstacles in the way of their doing
so, and that employees who are active in organising their fellows into
trade unions are got rid of, or penalised in some other way. To the third
class belong the great railway, telegraph and mining companies, and
many building trades. Outside of these, the employers of labour who
recognise and deal with organised labour as such are in the minority.
The Government of Canada, by Order-in-Council passed in July igi8.
make a declaration of policy with respect to organising. One clause of
this Order-in-Council provided that " all employees have a right to
organise in trade unions, and this right shall not be denied or interfered
with in any manner whatsoever, and- through their chosen representatives
1
NATIONAL INDUSTRIAL CONFERENCE : Official Report
oj Proceed-
ings and Discussions, p. XI, " Committee Reports Regarding the Right
to Organise, Recognition of Labour Unions, and the Right to Collective
Bargaining ". Dept. of Labour of Canada. 1919.
FREEDOM OF ASSOCIATION
»32
they should be permitted and encouraged to negotiate with employers
concerning working conditions, rates of pay, and other grievances ".
On the whole we believe the day has passed when any employer
should deny his employees the right to organise. Employers claim that
right for themselves and it is not denied by the workers. There seems to
be no reason why the employer should deny like rights to those who are
employed by him.
We believe the frank acknowledgment of this right by employers will
remove one of the most serious causes of unrest. The employers gain
nothing by their opposition because, notwithstanding much opposition,
their employees do organise, and the refusal but creates in their mind a
rankling sense of injustice.
Not only should employees be accorded the right of organising, but
the prudent employer will recognise such organisation, and will deal
with the duly accredited representatives thereof in all matters relating
to the interests of the employees, when it is sufficiently established to
be fairly representative of them all.
The right to organise would be more fully recognised, we believe, if
the distrust and lack of confidence at present existing could be removed.
One pronounced cause of this lack of confidence is the number of cases
in which it was claimed that trade agreements entered into have not
been faithfully observed. Allegations of lack of observance were made
by both employer and employee. We cannot close our eyes to the fact
that in some sections representatives of local trades unions have advocated
extreme measures. The selection of such men and the advocacy of these
measures, we were led to believe, was the logical outcome made by both
employer and employee, of unjustifiable opposition by some employers.
The adoption of the principle of the sympathetic strike has arisen from
the refusal of groups of employers to grant the claim of the organised
workers. These factors have been assigned as the chief causes of the
non-observance of contracts entered into by the workers in numerous
cases, especially in western Canada. This policy is not recognised by
the international trades unions, who believe in the due observance of
agreements entered into by themselves or on their behalf. It cannot be
denied that trades unions generally have brought many solid advantages
to workers, in the form of increased wages, shorter hours, and improved
conditions.
When the employers engaged in one line of industry are organised
and their respective employees are also formed into a central organisation,
a bargain between the two groups would have the advantage, from the
point of view of competition, of equalising wages, hours and other
conditions affecting costs '.
I n these statements the position of the individual right to
combine for trade purposes would appear to be adequately summed
u p . T h e r e is n o legal inhibition and little economic inhibition on the
r i g h t to combine per se. On the other h a n d , there is considerable
economic inhibition upon the most elementary right of action
in combination, viz. that of collective bargaining b y chosen
representatives. And the Government, while deprecating this fact,
does not see its way to taking definite measures against it.
1
Op. Cit., pp. I M I .
CANADA
x
33
§ 2. — The Legal Status of Trade Unions
A s already mentioned, the T r a d e Unions Act of 1872 was
originally limited in its application to registered trade unions. F o r
the most part, however, trade unions in Canada are averse to a n y t h i n g
in the nature of registration or incorporation, as rendering them more
vulnerable to legal attacks 1. Most of the protective provisions of
the T r a d e Unions Act, moreover, were inserted in the Criminal Code
of 1892, which extended such protection to unregistered as well as
registered unions. As a consequence very few trade unions (less
than a dozen) are registered under the Act.
In actual fact, some of the advantages which the unions expected
to attain by refusing to register have not been realised. I n a n u m b e r
of cases, suits for damages have been brought against unions and
damages awarded, it being held that all the financial resources of the
union were available to satisfy the decision 3 .
As against this, it has been held that an unincorporated union
cannot be sued. T h u s in 1918, in Williams and Rees v. Local Union
No. 15Ô2 United Mine, Workers of America and Young et al., t w o
coalminers were awarded damages against the union and individual
defendants for refusing to admit them to membership into the union,
and so preventing them from obtaining employment ; b u t t h e
Supreme Court of Canada ultimately allowed an appeal made by the
union, while dismissing the appeal of two individual defendants ',
it being held:
. . . that the local union as an unincorporated and unregistered body
was not properly made a defendant, and that services on it must have
been set aside had application been made for that relief.
T h e legal status of trade unions has recently been the subject of
interesting decisions in the case of Chase et al. v. Starr. I n this case
action was brought by the general chairman and secretary treasurer
of the Canadian division of the International Brotherhood of
Locomotive Engineers (a prominent trade union, but, as with the
1
The National Catholic Unions of Quebec, it should be mentioned.
aie not opposed to incorporation and in 1924 the Quebec Legislature
(Chapter 112) authorised the incorporation of trade unions for " the
study, defence and promotion of the economic, social and moral interests
of the profession. "
' See STEWART : Canadian Labour Laws and the Treaty, pp. 140-141.
3
59 Can. S.C.R. 240.
!34
FREEDOM OF ASSOCIATION
overwhelming majority of Canadian trade unions, not registered)
against a former secretary of that organisation, to compel him to
give an accounting of funds in his possession when relieved from
office. T h e secretary in question refused to surrender his office,
claiming that he had not received notification that his services were
dispensed with. T h e counsel for the defence attacked the legal
status of the labour organisation, claiming that it was operating in
restraint of' trade and moving for non-suit. I n the course of his
examination of the case, the judge stated : " I know of no case in
the Canadian courts defining the respective rights of a registered
a n d non-registered trade union. T h e English decisions are almost
our only guide. T h e subject is full of complexity, and I can see
n o escape from the necessity of tracing u p the history of trade unions
a n d the laws applicable to them both in England and in Canada. "
As a result of this examination, the conclusion was reached that
t h e provisions in the constitution of the trade union in question were
" in distinct restraint of trade and render the plaintiffs an unlawful
trade union to the extent of preventing them enforcing rights in a
Court of L a w . It is unnecessary to decide whether, or to what extent,
t h e y could have enforced their claim against the defendant, if they
h a d registered their organisation u n d e r the T r a d e Union Act. " l
A n appeal was taken by the plaintiffs against this judgment,
and in the Manitoba Court of Appeal the decision was reversed and
t h e appeal allowed with one judge dissenting. U n d e r the appeal
granted it was contended that, on the pleadings and evidence placed
before the Court, it should not be held in the present condition of
t h e law that the International Brotherhood of Locomotive Engineers
was " an organisation so tainted with illegality that the Court would
n o t lend its assistance to recover trust moneys of the union
unjustifiably withheld by the late treasurer ".
T h e case was next taken to the S u p r e m e Court of Canada, which
dismissed the appeal with costs, one j u d g e dissenting. T h e following
extract from the judgment shows the chief grounds on which this
decision was made :
The primary objects of the Brotherhood plainly are to secure
satisfactory arrangements for its members in relation to conditions of
employment and rates of pay, and to provide means of settling disputes
among its own members arising out of their service, and there is nothing
to indicate that the constitution has in view any means other than lawful
means for accomplishing these objects. . . . The question is of great
1
Canadian Labour Gazette, April 1923, pp. 377-386.
CANADA
»35
importance in Canada because of the peculiar condition of trade union
law in this country. The Canadian Act, which is Chapter 125 of the
Revised Statutes of Canada, has not been adopted by the Provinces, and
as to many of its provisions there is, to say the least, the greatest doubt
as to the authority of the Dominion to enact them. Section 32, for
example, in providing that the purposes of any trade union shall not,
by reason merely that they are in restraint of trade, be deemed to be
unlawful, so as to render void or voidable any agreement or trust, is,
prima facie, dealing with the subject of civil rights and property. No
doubt the declaration that trade unions, whose purposes are in unlawful
restraint of trade, are not, on that ground, to be regarded as criminal
conspiracies, coupled with the declarations on the subject contained in
the Criminal Code which have' been cited to us, establish beyond
question, if there ever was a doubt upon the subject, that such
a society as the Brotherhood of Locomotive Engineers is not a
criminal society. But these declarations do not carry us beyond
the point reached by the declaration in the first section of the Act of
1869. If the respondents' contention is sound, it is highly probable
that every trade union in Canada is, as regards the security of its funds,
absolutely at the mercy of the officials who have the custody of them.
This would indeed be an extraordinary thing. Provincial and Dominion
statutes for the past fifteen or twenty years have been directed to tne
encouragement of what is called " collective bargaining ". Associations
of employers, as well as associations of employees, must, if " collective
bargaining " is to be effectual and bargains are to be carried out, have
rules giving authority to discipline recalcitrant members ; and must
have funds, and most trade unions have rules vesting in some body
authority to give a final decision upon the question of strike or no strike,
a fact which the Industrial Disputes Act, section 15, explicitly recognises.
It would be singular indeed if the rights of the members of such
associations in the funds provided for defraying expenses and salaries
of officers, were left with no legal protection
except that which arises
from the liability to criminal prosecution l.
F r o m this it would appear that, although the state of the law
on the point is not so clear as it might be, the right of a trade union
to exist and carry on business essential to its existence is legally
recognised. For adequate understanding of the implications of this
right, however, it is necessary to consider the restrictions placed
upon action taken by trade unions.
1
Canadian Labour Gazette, June 1924, p. 532.
CHAPTER III
L E G A L RESTRICTIONS ON T R A D E U N I O N A C T I V I T I E S
T h e two main restrictions on trade union activities which attract
most attention in Canada are those concerning picketing and the
r i g h t to strike.
§ 1. — Picketing
FEDERAL L A W
T h e federal law on the subject is as follows :
501. Everyone is guilty of an offence punishable, at the option of the
accused, on indictment or on summary conviction before two justices and
liable on conviction to a fine not exceeding one hundred dollars, or to
three months' imprisonment with or without hard labour, who, wrongfully and without lawful authority, with a view to compel any other
person to abstain from doing anything which he has a lawful right to
do, or to do anything from which he has a lawful right to abstain,
(a) uses violence to such other person, or his wife or children, or
injures his property ;. or,
(b) intimidates such other person or his wife or children, by threats
or using violence, to them, her or any of them, or of injuring
his property ; or,
(c) persistently follows such other person about from place to place ;
or,
(d) hides any tools, clothes or other property owned or used by such
other person, or deprives him of, or hinders him in, the use
thereof ; or,
le) with one or more other persons, follows such other person, in a
disorderly manner, in or through any street or road ; or,
(/) besets or watches the house or other place where such other person
resides or works or carries on business or happens to be.
502. Everyone is guilty of an indictable offence and liable to two
years' imprisonment who, in pursuance of any unlawful combination or
conspiracy to raise the rate of wages, or of any unlawful combination or
conspiracy respecting any trade, business or manufacture, or respecting
any person concerned or employed therein, unlawfully assaults any person,
or, in pursuance of any such combination or conspiracy, uses any violence
or threat of violence, to any person, with intent to hinder him from
working or being employed at such trade, business, or manufacture.
CANADA
l
37
Special regulations apply to the intimidation of seamen :
503. Every one is guilty of an offence punishable on indictment, or
on summary conviction before two justices, and liable on conviction to
a fine not exceeding one hundred dollars, or to three months'
imprisonment, with or without hard labour, who,
(c) by force or threats of violence, or by any form of intimidation
whatsoever, hinders or prevents, or attempts to hinder or prevent
any seaman, stevedore, ship carpenter, ship labourer or other
person employed to work at or on board any ship or vessel, or
to do any work connected with the loading or unloading thereof,
from working at or exercising any lawful trade, business calling
or occupation in or for which he is so employed or with intent
so to hinder or prevent besets or watches such ship, vessel or
employee ; or,
(d) beats or uses any violence to, or makes any threat of violence
against, any such person with intent to hinder or prevent him
from working at or exercising such trade, business, calling or
occupation or on account of his having worked at or exercised
the same.
T h e question of the legality of picketing has been the subject
of a number of judicial cases during the last few years, most of which
would appear to make even peaceful picketing illegal.
T h u s , in the case International Ladies' Garment Workers'
Union
v. Rother, an appeal b r o u g h t before the Court of K i n g ' s Bench
resulted in the following ruling being given.:
Members of the union had the right to abstain from working in
respondent's establishment if they chose to do so, and upon the strike
being declared the two employees of respondent who were members of
the union did so elect and voluntarily ceased work, but others who desired
to remain had the right to do so, and any interference with the latters'
right to do so or with respondent's right to engage them to do so was
illegal and unjustifiable. . . . In the present case, there is evidence of
direct interference, obstruction, intimidation and assault. . . . While
peaceful persuasion is permissible, militant methods amounting to
intimidation and threats of violence followed by acts of violence are clearly
illegal and may be restrained, and the person whose liberty of action is
so interfered with protected. . . .
If members of labour unions prefer
idleness to employment, that is their affair and so long as they do not
attempt to interfere with men who are willing to work or with the
business of employers who are willing to employ such as desire to work,
no one is likely to interfere with them. When, however, they take the
position not only that they will not work themselves but will not permit
others to work or permit emplo}rers of labour to employ such others, the
situation becomes different. The labour union oversteps its rights and
the law is violated. Action then becomes necessary for the protection
of life, property and liberty of action. The learned trial judge in his
notes of judgment points out the difference between the English Act of
1875 and its amendments and Article 501 of our Criminal Code, that
under the English Act there is a proviso not found in the Criminal Code
that attending merely to obtain or communicate information or peacefully
persuading any person to work or abstain from working shall not be
deemed watching or besetting. The acts of appellant as disclosed by the
evidence constitute not oniy breaches of the peace and violation of
138
FREEDOM OF ASSOCIATION
the Criminal law, but also constitute a common law nuisance
which may be restained by injunction . . . . It was . . . . urged that
the terms of the restraining order were too broad in that all
picketing was restrained. I should say that the trial judge used the word
" picketing " in the sense of watching or besetting or, as Chief Justice
Taft said in the American Steel Foundries case : " The name ' picket '
indicates a militant purpose inconsistent with peaceful persuasion. " The
restraining order enjoins the appellants from molesting or interfering
with respondent and from in any way picketing in front of or at his place
of business or watching his place of business or the residence of his
employees or from following them with a view of intimidating the latter
from entering or remaining in respondent's employ. Appellants cannot
in any way be misled by the terms of this restraining order '.
I n this case it will be noticed that " peaceful persuasion " is
held permissible, but " picketing " is held to indicate a " militant
purpose inconsistent with peaceful persuasion ".
I n the case Dame Hannah Bercowitch
et al. v. the Joint Board
of the Cloak and Suit Makers' Union of Montreal et al., the plaintiffs
applied for an injunction against the union and three of its officers
to restrain t h e m from certain illegal acts, which they were alleged to
have committed in the course of a strike, and asked for damages.
I n the j u d g m e n t which was delivered an injunction was granted, the
union was condemned to pay damages, and all the defendants were
condemned to pay the costs of the proceedings. T h e following
extracts from the judgment show the principal grounds on which this
decision was based :
What was the object and effect of all this demonstration ? No doubt
it was to prevail upon and prevent others from working for plaintiffs.
It also had the effect of preventing customers from getting into plaintiffs'
places of business, and I would hold this to be an actionable wrong.
The whole purpose of placing these pickets around plaintiffs'
establishment was to interfere with their business and intimidate those
employees and others who desired to continue in plaintiffs' employ ; and
in going to and from work, all employees are entitled to use the streets
and sidewalks without obstruction or molestation.
The action of the defendants was an unjustifiable invasion of the
property rights and business of the plaintiffs and an obstruction and
annoyance savouring of intimidation. The restraining order should go
enjoining the defendants from molesting or interfering with plaintiffs
and from in any way picketing in front of or at their places of business
or from besetting or watching such places of business or the residence
of any of plaintiffs' employees or from following them with a view to
intimidating the latter from entering or remaining in plaintiffs' employ 2 .
On the other hand, in the case Dick v. Stephenson
et al.,
picketing of a peaceful nature was held legal. I n this case the
1
2
Canadian Labour Gazette, Feb. r923, pp. 219-220.
Ibid., June 1923, pp. 637^638.
CANADA
I39
proprietor of a restaurant brought an action against members of t h e
local branch of the Hotel and Restaurant Employees' International
Alliance, suing t h e m in damages for injury to his business through
picketing his restaurant. T h e case was carried to t h e Supreme Court
of the Province (Alberta) and from there to the Appellate Division.
T h e Appellate Court judges failed to agree, and recommended that
it be sent back to the Trial Division of the Supreme Court for another
hearing. By the judgment delivered it was held that t h e members
of t h e union did w h a t they were legally entitled to do. T h e grounds
on which this decision was based were as follows :
The picketing commenced and consisted in members of the unions . . .
patrolling the street in front of the plaintiff's premises, at times standing
about the café street door, and distributing to the public patronising the
café handbills whereby the recipient was informed of those restaurants in
the city of Calgary that were fair to union labour, no mention whatever
being made of the plaintiff's café or any other " unfair " restaurant, the
inference being, of course, that those not mentioned were unfair.
This resulted in a very serious decline in the plaintiff's business and
financial loss, which he here seeks to recover.
There is no doubt that the defendants agreed together to picket the
City Café when at the special meeting the resolution was adopted. And
at that time it must have been in the mind of the defendants that the
result of such picketing would reduce the café business. Indeed, they
could have no other object than that such reduction would compel a
compliance with the union's terms of employment. But there is no
evidence that any malice actuated the defendants or that injury to the
plaintiff was their primary object or intent. They did legally what they
were legally entitled to do. The public patronage of the plaintiff's
business was entirely voluntary. His customers could lawfully cease
their patronage at any moment and were induced to do so by the
defendants in an effort to advance the legitimate interests of themselves
and other members of the union ".
In more recent cases, however, the general opinion has been to
the effect that peaceful picketing is illegal : cf: Patzalek v. Adams
a n d Robinson v. Adams 2 , Rex ex rei. Barron v. Blachsawl and Rex
ex rei. Barron v. Hangsjaa s , and Rex v. Reners 4 .
I n this latest case — Rex v. Reners — the employees of the
Alberta Block Coal Company, having disagreed a m o n g themselves
on the question of accepting a new wage contract between the
company and the officials of the United Mine W o r k e r s , a number
of t h e m e n broke away from t h e United Mine W o r k e r s and formed
1
Canadian Laboxir Gazette, Nov. 1923, p. 1341.
Ibid., Sept. 1924, p. 814.
' Ibid., Nov. 1925, pp. 1156-1158.
4
Ibid., June 1926, pp. 61S-624.
1
140
FREEDOM OF ASSOCIATION
a n independent union. Members of the new union picketed the
mines with the object of persuading t h e miners not t o go to work,
n o violence, it was claimed, being either used or intended.
The
Supreme Court of Alberta held, however, that the picketing as carried
out in this case constituted a menace, and practically compulsion by
moral force, even if no physical force were contemplated. Appeal
was taken against this decision to the Supreme Court of Canada,
where the decision was upheld.
PROVINCIAL L A W
T h e labour laws of British Columbia have the following special
provisions applying to picketing and boycotting :
2. No such trade union or association shall be enjoined, nor shall any
officer, member, agent or servant of such trade union or association or any
other person be enjoined, nor shall it or its funds or any such officer,
member, agent, servant or other person be made liable in damages for
communicating to any workman, artisan, labourer, employee, or person
facts respecting employment or hiring by or with any employer, producer,
or distributor of the products of labour or the purchase of such products,
or for persuading or endeavouring to persuade by fair or reasonable
argument, without unlawful threats, intimidation, or other unlawful acts,
such last-named workman, artisan, labourer, employee, or person at the
expiration of any existing contract, not to renew the same with or to
refuse to become the employee or customer of any such employer,
producer, consumer, or distributor of the products of labour.
3. No such trade union or association, or its officer, member, agent,
or servant, or other person shall be enjoined or liable in damages, nor
shall its funds be liable in damages for publishing information with
regard to a strike or lockout, or proposed or expected strike or lockout,
or other labour grievance or trouble, or for warning workmen, artisans,
labourers, employees or other persons against seeking or urging
workmen, artisans, labourers, employees or other persons not to seek
employment in the locality affected by such strike, lockout, labour
grievance or trouble, or from purchasing, buying or consuming products
produced or distributed by the employer of labour party to such strike,
lockout, labour grievance or trouble during its continuance '.
A case of picketing which was not held to be covered by this
law and which illustrates incidentally the position of the Dominion
law in British Columbia, is that of Schuberg v. Local
International
Alliance of Theatrical Stage Employees et al. T h e picketing took
place under the following circumstances.
T h e owner of the theatre for a long time had employed seven
stage h a n d s , and when h e gave notice that after a certain date he
would employ only five, this announcement proved unsatisfactory to
1
Labour Legislation
in Canada, 1920, p. 761.
CANADA
I4I
the stage hands and to their local union and a strike followed. The
owner then engaged five new employees, and the union thereupon
placed men at the entrance to the theatre who distributed handbills
stating in large type that the theatre was " unfair to organised
labour ". The union also caused motor-cars and sandwich men
displaying signs and banners bearing the same statement to parade
before the entrance to the theatre, " watching and besetting " the
theatre. During the continuance of these acts the volume of business
at the theatre was materially reduced.
The Court held that " these acts were all done with the intention
of injuring the plaintiff's business and in the hope that to save
himself from such injury he would return to the employment of seven
stage hands as desired by the Vancouver Theatrical Federation —
the body with whom the contract, if any, would have been made.
Defendants' intention was to injure plaintiff ; their object was to
force him to conform to the Vancouver Theatrical Federation's views
of the proper number of stage hands to be employed at the Empress
Theatre. "
During the hearing it was argued by counsel for the defendants
that there was no liability for the acts complained of by reason of
the provisions of the Provincial Act relating to trade unions (quoted
above).
In reply the judgment pointed out that " section 2 only permits
the communication of facts, etc., and the persuasion by fair and
reasonable argument, without any unlawful act. The statement that
the theatre was unfair to organised labour is not a statement of fact,
but one of opinion merely — about which people may and do differ
— an attribute which does not belong to a statement of fact. The
statements on the handbills, banners and sandwich boards were not
' fair or reasonable argument ' — they were not argument at all and
in addition they were accompanied by the unlawful act of watching
and besetting. "
As to the application of the Dominion Act, the judgment decided
as follows :
It is quite true, as argued, that the Parliament of Canada cannot
by declaring a certain act to be criminal invade the exclusive jurisdiction
of provincial legislatures to legislate on property and civil rights, but
surely there can be no question that the preservation of the public peace
is a subject coming within the jurisdiction of the Dominion Parliament.
Judgment was given for damages with costs of action and an
injunction against the union was also granted. This case was taken
142
FREEDOM OF ASSOCIATION
before the British Columbia Court of Appeal. A j u d g m e n t , issued
4 J a n u a r y 1927, dismissed the appeal, two justices dissenting.
A T T I T U D E OF T H E T R A D E S AND LABOUR CONGRESS
T h e legal position as regards picketing h a s been the subject of
a number of resolutions by the T r a d e s and Labour Congress of
Canada. T h e legislative programme for 1923 submitted to the
thirty-ninth annual meeting, referring to recent legal decisions
regarding picketing during strikes and injunctions issued in
connection therewith, stated :
It is apparent from these and other past cases that the efforts of
organised labour must be continued to have the law of Canada brought
into harmony with that of Great Britain so as to, again restore protection
to workers against the uncertainty and unfairness of the Courts in
peacefully conducted labour disputes.
A t this meeting a resolution was adopted asking the Congress :
(1) to reiterate its attitude towards the issuing of injunctions
during disputes ;
(2) to endorse an appeal for funds to assist the Ladies' Garment
W o r k e r s ' Union in appealing against the decision ;
(3) to urge that steps be taken to have the Criminal Code
amended so as to legalise peaceful picketing and persuasion
during strikes.
I n 1924 the Congress reiterated t h e protest against injunctions
in labour disputes and instructed the executive council to take steps
t o have t h e Criminal Code amended so a s to permit peaceful picketing
a n d , if this were not sufficient, advise that efforts be made to have
t h e provincial legislatures adopt a m e n d m e n t s t o t h e civil law along
similar lines.
Special attention to t h e question of picketing was given at the
forty-second Annual Convention of the Trades and Labour Congress
of Canada, held in September 1926. A Special Committee, appointed
to deal with this question, pointed out in the course of its report that
. . . the Courts seem divided as to the interpretation of the law as
it now exists. The effect, however, has been in the main to make the
strike ineffective. The right to peacefully picket was defined and made
legal by section 12, Chapter 173, of the Consolidated Statute, 1886, but
when the Criminal Code, 1892, Chapter 29, was compiled this provision
legalising peaceful picketing was omitted and has not yet been reinserted.
In representations previously made to the Government, the executive
council of the Trades and Labour Congress of Canada has pointed out
the necessity of amending the Criminal Code to adequately protect trade
unions and trade unionists in their right to peacefully picket during
CANADA
H3
strikes. In reply to these representations the executive council has been
told that the provisions of the Criminal Code are adequate to afford the
protection asked for, despite the fact that these provisions lack the clarity
of definition common to British law. Events of the past year only serve
to strengthen the conviction previously expressed that the Criminal Code
should be amended to prevent recurrence of the action of the courts in
restraining trade unionists from peacefully picketing.
After considering a number of legal judgments concerning
picketing and the use of the injunction process, the Special Committee
passed the following recommendations, which were eventually adopted
by the Congress :
(1) That the incoming executive of the Trades and Labour Congress
of Canada zealously press for the necessary amendments to the Criminal
Code or pursue such other course as their legal advisers would recommend
to adequately protect trade unions and trade unionists throughout this
Dominion in their right to picket during industrial disputes.
(2) That the provincial executives of the Trades andLabour Congress
of Canada make adequate representations to Provincial Legislatures to
secure for the trade unions and trade unionists their rights to peacefully
picket without the intervention of the Courts in the issuing of injunctions
to restrain them from what they have a legal right to do.
This recommendation not only applies to the issuing of injunctions
restraining trade unions and trade unionists from continuing picketing
once it has been put in operation, but also from the issuance of injunction
before trade unions and trade unionists have decided to picket in the
event of an industrial dispute.
(3) That, with a view to supporting the executive council in
carrying out the instructions of this convention all affiliated bodies be
urged to bring their influence to bear upon the Government and Members
of Parliament and Legislatures to promote the necessary legislation, and
that in addition the executive council be instructed to prepare in the
form of a pamphlet or document the necessary information for the
guidance and advice of its constituents to make possible the realisation
of this objective.
(4) That, pending the enactment of legislation to adequately protect
trade unions and trade unionists in their right of peacefully picketing, the
advice given by the Congress solicitor be the policy to be adopted, and
that the widest publicity be given by the Congress Executive to the legal
opinions rendered by Mr. O'Donoghue 1.
1
These instructions are as follows :
(1) You have a perfect right to picket peacefully.
(2) Do not have more than three pickets together, because more might
constitute a nuisance or a menace.
• (3) If ordered by officers of the law to " move on ", move on. But
you ma}' return, and may pass any particular point as often as you like,
so often as you keep moving when ordered.
(4) You are at liberty to speak to anyone in order to give information
or to obtain it concerning the dispute. If the strikebreaker rejects your
advances leave him alone. It is in his system and an appeal to his manly
instincts will not move him. He probably hasn't any.
(5) Let no threats be made to others. Those who take the places of
strikers have a legal right to do so. The moral aspect of their conduct i&
another thing.
FREEDOM OF ASSOCIATION
144
§ 2. — T h e Right ïo Strike
SYMPATHETIC STRIKES
T h e section of the Criminal Code appertaining to the right to
strike (section 590) reads as follows :
No prosecution shall be maintainable against any person, for
conspiracy in refusing to work with or for any employer or workman, or for doing any act or causing any act to be done for the purpose
of a trade combination, unless such act is an offence punishable by statute.
T h e term " trade combination " m e a n s " any combination
between masters or workmen or other persons for regulating or
altering the relations between a n y persons being masters or workmen,
or the conduct of any master or w o r k m a n in or in respect of his
business or employment, or contract of employment or service ".
A s already shown, the r i g h t to combined action for trade
purposes t h u s generally laid down is restricted to a considerable
e x t e n t by the provisions respecting picketing. I t is also restricted in
so far as the sympathetic strike is concerned. T h u s , in Rex v.
Russell 1 it was held that :
The immunity provided by section 590 of the (Criminal) Code does
not extend to a general " sympathetic " strike. A conspiracy to bring
about a strike involving no trade dispute between the strikers and their
employers is illegal. The law of Canada applying thereto is the same
as it was in England before the Trade Disputes Act, 1906, to which there
is no similar enactment in Canada.
It is lawful for workmen to combine in a strike in order to get
higher wages, because that would be a combination to regulate or alter
the conduct of a master in his employment of his workmen. Persons
who aided or encouraged such a strike would not be committing an
unlawful act, because they were endeavouring to bring about something
that is legal. But supposing there is a strike by the moulders in A's
foundry and in order to assist the strike the employees of a cartage
company combine in a refusal to carry goods to or from A's foundry,
or the railway company's employees combine in refusing to receive or
handle A's goods ; neither of these combinations comes within the
protection afforded by section 590.
T h e Dominion Department of Justice has ruled in a similar
sense :
(6) Do not condone violence or anything like violence. The striker
who indulges in violence is no friend of his fellow-workers. He may be
a sp3'.
(7) While giving every respect to the law and its officers, do not let
them impose upon you. But do not take the law into your own hands in
any case. Remember, that the officer has to do his duty and to follow
his instructions, no matter how distasteful they may be to him.
1
(1920) 1 W . W . R . 624.
HS
CANADA
The decision of the English courts in Lyons v.Wilkins (1896), 1 Ch.
D. 811, Quinn v. Leathern (1901) A.C. 495, and in Giblan v. National
Amalgamated Labourers' Union, etc. (1903), 2 K.B. 6oo, make it clear that
at common law strikes of this nature are illegal, and assuming- that the
Criminal Code does not conflict, this is the present position of the law
in Canada '.
B R E A C H OF CONTRACT IN PUBLIC
UTILITIES
Under the Act of 1877 (Chapter 35) it is provided that in
general a breach of contract of service is to be regarded as a civii
w r o n g and not as a crime, but, on the other h a n d , " certain wilful
a n d malicious breaches of contract, involving danger to persons or
property, or grave public inconvenience " are punishable as crimes.
T h e provisions made accordingly now appear in the Criminal Code
in the following form :
499. Everyone is guilty of an offence punishable on indictment on
summary conviction before two justices and liable on conviction to a
penalty, not exceeding one hundred dollars or to three months'
imprisonment with or without hard labour, who
(a) wilfully breaks any contract made by him knowing, or having
reasonable cause to believe, that the probable consequence of his
so doing, either alone or in combination with others, will be to
endanger human life, or to cause serious bodily injury, or to
expose valuable property, whether real or personal, to destruction
or serious injury ; or,
(b) being bound, agreeing or assuming, under any contract made
by him with any municipal corporation or authority, or with any
compan}' to supply any city or any other place, or any part
thereof, with electric light, or power, gas or water, wilfully breaks
such contract knowing, or having reasonable cause to believe, that
the probable consequences of his so doing, either alone or in
combination with others, will be to deprive the inhabitants of
that city or place or part thereof, wholly or to a great extent, of
their supply of power, light, gas or water ; or,
(c) being bound, agreeing or assuming, under any contract made by
him with a railway company, or with His Majesty, or anyone on
behalf of His Majesty, in connection with a Government railway •
on which His Majesty's mails, or passengers, or freights are
carried, to carry His Majesty's mails, or to carry passengers or
freight, wilfully breaks such contract, knowing, or having reason
to believe, that the probable consequences of his so doing, either
alone or in combination with others, will be to delay or prevent
the running of any locomotive engine or tender, or freight or
passenger train or car, on the railway.
THE
INDUSTRIAL
DISPUTES
INVESTIGATION
ACT
Of the statutes placing definite restrictions on the right to strike,
the Industrial Disputes Investigation Act of 1907 is the one of chtef
1 Report of Trades and Labour Congress, 1921, p . 30.
Freedom of Association
146
FREEDOM OF ASSOCIATION
importance now in force '. F o r a time the scope of this Act was
somewhat uncertain owing to its having been declared by the British
Privy Council ultra vires of the Dominion Parliament. By the latest
a m e n d m e n t (1925) the Act is now made to apply to disputes relating
to employment on w o r k s within the authority of the Dominion
Parliament or not coming within t h e exclusive jurisdiction of any
province or occurring during a national emergency. I n addition it
is provided that the Act m a y apply to " any dispute which is within
the exclusive legislative jurisdiction of any province and which by
the legislation of t h e province is made subject to the provisions of
this Act ". To what extent the various provinces will take advantage
of this clause remains to be seen 2 .
T h e Industrial Disputes Investigation Act applies principally to
what are usually k n o w n as " public utilities ", the term " employer "
as used in the Act meaning " any person, company or corporation
employing ten or more persons and owning or operating any mining
property, agency of transport or communication, or public service
utility, including, except as hereinafter provided, railways where
operated by steam, electricity or other motive power, steamships,
telegraph and telephone, lines, gas, electric light, water and power
works ".
T h e Act as now in force applies to the following disputes only
(section 2a) :
(i) Any dispute in relation to employment upon or in connection
with any work, undertaking or business which is within the legislative
authority of the Parliament of Canada including but not so as to restrict
the generality of the foregoing :
(a) Works, undertakings or business operated or carried on for or
in connection with navigation and 'shipping, whether inland or
maritime.
(b) Lines of steam or other ships, railways, canals, telegraphs and
other works and undertakings connecting any province with any
other or others of the provinces, or extending beyond the limits
of the province.
(c) Lines of steamships Between a province and any British or
foreign country.
1
Other enactments placing some restriction on the right to strike are
the Nova Scotia Mines Arbitration Act of 1888, the Nova Scotia Industrial
Peace Act of 1925 {Legislative Series, 1925, Can. 3), the Ontario Railway
and Municipal Board Act of 1913, and the Quebec Municipal Strike and
Lockout Act as amended in 1921. The two last-mentioned Acts are still
In force. In scope and design they bear a certain similarity to the
Industrial Disputes Investigation Act.
2
Up to the present six of the nine Provinces •— British Columbia,
Saskatchewan, Manitoba, New Brunswick, Nova Scotia and Alberta —
have adopted the necessary legislation.
CANADA
i\7
{d) Ferries between any province and any British or foreign country,
or between two provinces.
(e) Works, undertakings, or business belonging to, carried on
or operated by aliens, including foreign corporations immigrating
into Canada to carry on business.
(/) such works as, although wholly situate within the province, have
been or may be declared by the Parliament of Canada to be for
the general advantage of Canada or for the advantage of two or
more of the provinces.
(g) Works, undertakings or business of any company or corporation
incorporated by or under the authority of the Parliament of
Canada.
(ii) Any dispute which is not within the exclusive legislative
authority of any provincial legislature to regulate in the manner provided
by this Act.
(iii) Any dispute which the Governor in Council may by reason of
any real or apprehended national emergency declare to be subject to the
provisions of this Act.
(iv) Any dispute which is within the exclusive legislative jurisdiction
of any province and which by the legislation of the province is made
subject to the provisions of this Act.
T h i s Act provides that " wherever any dispute exists between
an employer and any of his employees j and the parties thereto are
unable to adjust it, either of the parties to the dispute m a y m a k e
application to the Minister for the appointment of a Board of
Conciliation and Investigation, to which board the dispute may be
referred under t h e provisions of this Act " (section 5 ) .
T h e part of the Act dealing with strikes and lockouts lays down
t h a t " it shall be unlawful for any employer to declare or cause alockout or for any employee to go on strike on account of any dispute
prior to or during a reference of such dispute to a Board of
Conciliation and Investigation under the provisions of this A c t "
(section 56). Section 57 (adopted 1925) adds to this that " employers
a n d employees shall give at least thirty days' notice of an intended
or desired change affecting conditions of employment with respect
to wages or hours ; and in the event of such intended or desired
change resulting in a dispute, it shall be unlawful for the employer
to make effective a proposed change in wages or h o u r s or for the
employees to go on strike until t h e dispute has been finally dealt
with by a board ". I n both cases the penalty for infringement is a
fine for employers of not less than one h u n d r e d dollars nor more
t h a n one thousand dollars for each day or part of a day that any
illegal lockout or change exists, and for employees a fine of not less
t h a n ten dollars nor more than fifty dollars for each day or p a r t of
a day that such employee is on strike. Since prosecution is not
undertaken by the State b u t is left to the aggrieved party, very few
cases under this Act have come before the courts.
148
FREEDOM OF ASSOCIATION
I n the event of a dispute arising in an industry or trade not
included under the provisions of this Act, such dispute may be
referred to a board if both parties so agree (section 63). W h e r e any
strike or lockout has occurred, or seems to the Minister of Labour
t o be imminent, and in t h é public interest or for any other reason
the Minister judges it expedient, he m a y on the application of any
municipality interested, or on his own initiative w i t h o u t application
by either of the parties to the dispute, set u p a Board of Conciliation
and Investigation under this Act (section 63a).
A n important legal decision by the Divisional Court of Ontario *
considerably extended the apparent scope of the Industrial Disputes
Investigation A c t so far as the application of its provisions restrictive
of the right to strike are concerned. T h i s decision held that " the
prohibition by the statute of strikes or lockouts ' prior to or during
a reference of the dispute to a board, does not apply only to case
in which one of the parties to the dispute has made application for
the appointment of such a board, but makes all strikes and lockouts
illegal until there has been such a reference and the board has made
i t s report thereon ".
During the years following on the adoption of the Industrial
Disputes Investigation Act, the T r a d e s a n d Labour Congress of
Canada repeatedly asked for its repeal. I n 1919, however, the
Congress, while maintaining its attitude that the clauses relating to
penalties for striking pending the creation of boards or prior to their
decisions should be repealed, requested the Government to extend
the operation of the Act to employees in publicly owned utilities
including civic employees. Another resolution in 1920 asked that
t h e A c t should be extended to all districts upon t h e application of
either an organisation involved, an employer or a municipality, but at
the same time requested that the compulsory clauses restraining the
right to strike pending the decision of a board should be eliminated.
A s regards provincial legislation the Labour Laws of British
Columbia l specifically lay down that a trade union shall not be
liable in damages for any wrongful act in connection with any
strike, lockout or trade or labour dispute unless t h e trade union has
authorised or been a concurring party in such wrongful act. T h e
other provinces have no special legislation on this point.
1
Rex v. McGuire (1908), 16 OX.R. 522.
Labour Legislation in Canada 1Q20 :
Columbia ", p. 761.
2
" Labour Laws of British
CONCLUSION
From the foregoing study, the salient points concerning the right
of combination for trade purposes in Canada would appear to be
these :
First of all, the general similarity of the law on the question in
Canada and the law in Great Britain is to be noted — the provisions
relating to picketing, to the sympathetic strike, and to the right to
strike in public utilities (including mining and transport) being the
outstanding features of difference. Alongside this, there is the close
connection, so far as trade union organisation is concerned, between
Canada and the United States, the great majority of Canadian trade
unionists being organised in the so-called " international " unions.
The individual right to combine for trade purposes, while legally
unquestioned, is nevertheless restricted in actual fact, particularly
by the action of some few employers in refusing to employ trade
unionists, and by the action of a considerable number of employers
in refusing to recognise trade union representatives for purposes of
collective bargaining.
The right of combinations for trade purposes to exist may be
considered as definitely established. The most notable feature is the
strongly marked opposition on the part of the great majority of
Canadian trade unions to any form of incorporation.
The restrictions on the right of action of combinations for
trade purposes which have attracted most attention are those applying
to picketing and the right to strike in public utilities, including
mining and transportation". In the first case, the right of peaceful
picketing, once granted, has since been withdrawn, resulting in a
position acutely resented by Canadian trade unionists. In the second
case, under the provisions of the Industrial Disputes Investigation
Act, stoppages of work are forbidden in the industries specified during
such time as the questions at issue are being examined by a board.
The penal provisions of this Act, however, are. very infrequently
enforced, and would not appear in practice to constitute any very
serious inhibitions of trade union action.
BIBLIOGRAPHY
Annual Reports on Labour Organisation in Canada.
published by the Department of Labour of Canada.
Compiled and
Labour Legislation in Canada, 1920 and annually thereafter.
lished by the Department of Labour of Canada.
Canadian Labour Gazette.
Labour of Canada.
Pub-
Published monthly by the Department of
NATIONAL INDUSTRIAL CONFERENCE, Ottawa. 15-20 September 1919.
Official Report of Proceedings
ment of Labour of Canada.
Annual
and Discussions.
Issued by t h e Depart-
Reports of Trades and Labour Congress of Canada.
Bryce M. STEWART. Canadian Labour Laws and the Treaty. Chapter V, " Freedom of Association for Employers and Employed ". Columbia
University Press, 1926.
LATIN AMERICA
INTRODUCTION
The countries of I^atin America, although united by a common
language, tradition and culture, differ in the degree of their economic
development, in their social systems and consequently in the extent
and strength of their trade union movements.
Side by side with countries in which the industrial revolution
has been carried through are to be found others in a period of economic
and social transformation, and still others in a stage of agrarian
development with numerous vestiges of a deeply-rooted feudal system.
The trade union movement, which here, as elsewhere, is a
reflection of the degree of economic development, thus appears in
very different aspects as regards its forms of organisation, its
numerical strength, its opinions and its aims.
First of all there is diversity in the forms of organisation. In
the various countries, and sometimes even side by side in the same
country, will be found the most elementary forms of trade union
organisation (corporations, friendly societies, co-operative societies,
etc.), the most highly developed forms (federations of industries
centralised in national bodies), and the whole gamut of intermediate
types (mixed trade unions, works unions, and independent unions).
Secondly, there is diversity in numerical strength. In Mexico 1
the proportion of workers belonging to trade unions is over 60 per
cent., and in Chile, at least before the recent .dissolution of the
Central Trade Union Organisation, it lay between 40 and 50 per
cent. ; in Argentina and Brazil it falls to 10 per cent, and scarcely
exceeds 5 per cent, in the other countries.
This weakness of trade unionism is due, among other things,
to the relative youth of the workers' movement, the instability of
labour resulting from the extensive migration movement in all of
these countries, the political persecution to which organisations of
1
The study on Mexico will DP published later as a supplement to
this Volume.
I52
FREEDOM OF ASSOCIATION
a radical tendency were frequently exposed, and above all, to the
multiplicity of scattered unions.
Finally, there is the diversity of opinions. I t is not an uncomm o n thing to find in the same country numerous independent groups
and also several central organisations of varying shades of opinion :
Anarchist, pan-American, Communist, reformist and neutral.
Until just before the war the Anarchist trade union movement
predominated in most of the countries of L a t i n America. Even today it has strong roots almost everywhere. Generally speaking,
however, its influence has waned since 1918, giving place to that
of the Pan-American Federation of L a b o u r ( P . A . F . L - ) , the Red
International and the International Federation of Trade Unions of
Amsterdam.
The Pan-American
Federation
of Labour, founded in 1918 at
the instigation of the American Federation of Labour, has made
great efforts to spread its influence in all the countries of Latin
America. I t is accused by its adversaries of supporting United
States penetration into the countries of L a t i n America, while its
advocates vaunt it, on the other h a n d , as being the chief safeguard
of their economic and political independence. T h e P . A . F . L . h a s
won to its cause the majority of the countries of Central America
and all the northern part of South America, in which United States
penetration is most active.
I n 1926, in addition to the American Federation of Labour, the
following workers' organisations were members of the P . A . F . L . 1 :
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(n)
(12)
(13)
1
District Confederation of Workers in Mexico ;
Workers' Confederation of Salvador ;
Workers' Union of Salvador ;
" Progress ", the Workers' Union of Honduras ;
Workers' Federation of Nicaragua ;
Workers' Confederation of the Dominican Republic ;
International Workers' Union of Peru ;
Workers' Confederation of Ecuador ;
Workers' Federation of Guatemala ;
Central Trade Union of Workers of Colombia ;
Workers' Union of Venezuela ;
Brotherhood of Railwaymen of Cuba ;
Workers' Federation of Porto Rico ;
No responsibility is taken for the accuracy of the list, of organisations belonging to the General Confederation of Labour of the countries
of Latin America, and that concerning the Pan-American Federation of
Labour, since the instability of the trade union movement makes it
extremely difficult to know whether the various central organisations
of trade unions really représent a powerful body or not.
LATIN AMERICA
'53
I t will be noted that, despite the pressure brought to bear upon
them, the workers' organisations in the majority of the countries
of South America, such as Argentina, Bolivia, Brazil, Chile and
U r u g u a y , have not joined the Pan-American Federation of Labour.
T h e P . A . F . L . proposes to establish close co-operation between.
all the workers' organisations in the Pan-American countries, to
co-ordinate their efforts for improving working conditions, to draw
u p a programme of minimum demands on the basis of the principles
of the Labour Section of the Mexican Constitution *, to take all
legal means for the passing of social legislation and legislation for
t h e protection of t h e workers, more particularly for t h e benefit of
immigrant workers and native agricultural workers. I n addition to
this social programme, which is inspired by a moderate reformist
spirit, the Pan-American Federation has not hesitated to take action
in the political sphere. I n fact, and this is. doubtless the strongest
link which holds the various organisations together, the Federation
has protested against political interference in certain of the republics
of Central and South America 2 .
Quite recently the Red International
also tried to set u p a
General Confederation of Labour for the countries of Latin America,
and a Congress for this purpose was convened for 18 May 1929 at
Montevideo.
According to information supplied by the Red International the
following is the list of organisations said to belong to this new
central body :
(1) Argentina : Workers' Union of the Province of Cordoba ;
Independent Trade Union of Cordoba ; Federation of Workers in the
Metal Trades ; Federation of Masons ; Federation
of Carters ; several
other trade unions in towns of less importance 3 .
(2) Brazil : General Confederation of Labour of Brazil.
(¡\ Bolivia : Confederation of Labour.
(4) Venezuela : Revolutionary Workers' Union.
(5) Guatemala : District Federation of Workers.
(6) Colombia : National Federation of Workers and Peasants ;
Trade Union of Workers of Magdelena ; Federation of Workers of the
Atlantic Zone ; Federation of Workers of Bolivar.
1
Cf. Freedom, of Association in Mexico (see footnote, p. 151).
Cf. inter alia, the reports of the Third, Fourth and Fifth Congresses
of the Pan-American Federation of Labour, held in Mexico in Jan. 1921,
El Paso (Mexico) in Dec. 1924, and Washington in July 1928 respectively.
3
It will be noted that none of the three federations of trade unions
in Argentina — the Workers' Confederation of Argentina, the Federation
of Trade Unions of Argentina, and the District Workers' Federation of
Argentina — was represented at the Congress (cf. Argentine Republic,
p. 156).
2
154
FREEDOM OF ASSOCIATION
(7) Costa Rica : General Confederation of Labour.
(8) Cuba : National Confederation of Workers ; Peasants' Union.
(9) Mexico : Unitary Confederation of Mexico.
(10) Paraguay : Workers' Union of Paraguay ; Seamen's League.
(11) Peru : Committee of the General Confederation of Labour of
Peru ; Workers' Federation ; Peasants' Federation of the Incas ;
Textile Federation ; Federation of Workers in Breweries ; Trade Union
of Seamen of the Coasting Trade ; Association of Maritime Workers.
(12) Panama : National Federation of Workers and Peasants.
(13) Salvador : District Federation.
(14) Chile : Workers' Federation of Chile *.
(15) Uruguay : General Confederation of Labour of Uruguay ;
Federation of Maritime Workers.
(16) Ecuador : Workers' Federation ; Trade Union of Agricultural
Wage Earners and Peasants of the Province of Goayas.
T h e General Confederation of Labour of Latin America proposes,
in addition to the general Communist programme of action, to deal
with the reorganisation of trade unionism in each country on the
basis of local factory committees and national federations of
industries, and thereafter to e x t e n d recruiting to the mass of workers
generally neglected by the trade unions, that is, immigrant
wage earners and agricultural wage earners, most of whom are natives.
T h e International Federation of Trade Unions of Amsterdam has
also numerous adherents in the majority of t h e countries of South
America. T h e W o r k e r s ' Confederation of Argentina, which is perhaps the most representative organisation in South America, has
been a member since 1926, and attempts are at present being made
to create new central organisations in Chile and Cuba for the purpose
of winning these States to its cause. F o r this purpose a Committee
of W o r k e r s ' Relations between the Ibero-Arherican countries has
recently been instituted whose seat is at Buenos Aires and which is
composed of delegates from Argentina, Brazil, Chile, Cuba and
Uruguay.
I n completing this brief survey of trade union influences in the
countries of South America, it m a y be well to mention the negotiations
at present proceeding between the International Federation of T r a d e
Unions and, through t h e intermediary of the American Federation
of Labour, the Pan-American Federation of Labour, aiming at securi n g t h e adhesion of this latter organisation to t h e A m s t e r d a m
Federation ; it would, of course, be a condition that t h e organisation
of the N e w World would retain considerable local autonomy.
1
The Workers' Federation of Chile, which was by far the most
powerful in the country, was actually dissolved in 1928, and its reconstitution was prohibited by the Legislative Decree of 31 December 1928.
Cf. Chile, p. 188.
LATIN AMERICA
!55
Such are the bare outlines of the main characteristics of trade
unionism in the countries of Latin America. At present it seems
impossible to give a more complete picture on account of the extreme
instability of the trade union movement.
In the following chapters details are given, as far as the available
information permits, of the de facto and de jure position of the trade
unions in South America first of all and then in Central America.
Special monographs are devoted to a certain number of these
countries : Argentina, Brazil, Chile, Colombia, Peru, Uruguay,
Venezuela, Mexico and Cuba. For others, lack of information makes
it impossible to do more than give an analysis of the legislation
concerning trade associations. For yet others, such as Bolivia 1 ,
Ecuador, Paraguay, Nicaragua and Costa Rica, in which trade union
law is not distinct from ordinary law, the bare mention of this fact
here must suffice.
1
INTERNATIONAL LABOUR OFFICE : Legislative Series, 1920, Bol. :
Decree of 29 September 1920 concerning the settlement of strikes.
I.
SOUTH AMERICA
ARGENTINE REPUBLIC
CHAPTER I
HISTORY OF THE TRADE UNION MOVEMENT
§ 1. — The Workers' Trade Union Movement
If the few isolated attempts at organisation that were made since
1870 in certain skilled trades are left out of account, it may be said
that trade unionism in the Argentine Republic dates from 1882.
On 1 January of that year the Vorwaerts Club was founded on the
initiative of immigrant German workers, who adopted the programme
of German social democracy. On the model of this club, but on a
wider basis, the International Workers' Committee was founded a
few years later, in 1889. In that same year the International
Workers' Committee and the Vorwaerts Club together laid before
the Argentine Government the programme of labour demands drawn
up by the Third International Workers' Congress of Paris. This
demonstration is mentioned, not because of its intrinsic importance,
for it remained without effect, but because of the spirit inspiring it,
which was that of the international trade union movement.
The Vorwaerts Club and the International Workers' Committee,
as their names show, were only what might be called the general
staff of the movement. It remained to recruit the army and establish
its organisation. This work was undertaken by the Labour Federation of the Argentine Republic, founded on 29 June 1890. This
organisation, the first to deserve the name of a trade union centre,
recruited its early members solely among workers in the boot and
shoe and carpentry trades — that is to say, artisans rather than wage
earners proper.
In consequence of the serious economic depression from which
Argentina suffered in 1890, however, the basis of recruitment was
IS?
ARGENTINE REPUBLIC
widened. A number of militant unions were created throughout t h e
country, which soon joined t h e central body. By 1898 t h e Labour
Federation of the Argentine Republic had forty-seven affiliated unions
in Buenos Aires alone.
T h e Labour Federation did not confine i t s activities to
protecting t h e trade interests of members, b u t approached the public
authorities directly in labour questions. I n a m e m o r a n d u m addressed to t h e President of t h e Republic, it depicted t h e miserable
situation of t h e working classes created by t h e absence of all social
legislation, by low wages and by wretched housing conditions \ I t
demanded, in addition to the adoption of a series of labour laws,
various political reforms, such as t h e revision of the system of
taxation a n d t h e introduction of universal suffrage. B u t its action
had no effect, a n d t h e failure of this programme, which was inspired
by a moderate Socialism, n o doubt helped to turn the trade union
movement into a new direction towards t h e beginning of t h e twentieth
century.
I n 1901 a new trade union centre, t h e A r g e n t i n e Regional
L a b o u r Federation (Federación
Obrera
Regional
Argentina),
anarchist in tendency, took t h e place of t h e moderate organisation.
T h e first appearance of this new body on t h e scene w a s accompanied
by serious social struggles, in particular t h e first dock strike in
Buenos Aires. I n view of t h e bitterness of these disputes, t h e
Government decided to take action. T h e A c t of 23 November 1902,
concerning " t h e expulsion of foreigners ", gave the police the widest
powers to expel immigrant agitators. U n d e r this Act, dozens of
Spanish a n d Italian militant trade union leaders were expelled 3 .
T h e result of this repression was n o t only a certain drop in t h e
membership of the Federation, b u t the creation of a rival centre.
I n 1903 t h e General Federation of W o r k e r s (Unión
General de
Trabajadores)
was founded on the model of t h e Spanish organisation
of t h e same name 3 , which returned to t h e moderate traditions of t h e
first central trade union organisation.
1
For an account of the situation of the working classes towards the
end of the nineteenth and the beginning of the twentieth centuries, see
Dr. Jean BIALET-MASSÉ : Informe sobre el estado de las clases obreras,
2 vols., Buenos Aires, 1904.
- Cf. also the Act of 30 June 1910, concerning " social security ",
analysed below, Chapter II.
5
Cf.
INTERNATIONAL LABOUR
Vol. IV, Spain, p . 191.
O F F I C E : Freedom
of
Association,
I5&
FREEDOM OF ASSOCIATION
The foundation of the General Federation of Workers opened an
era of labour dissension in the Argentine Republic which has not
yet closed. From that date the history of Argentine trade unionism
is to some extent a history of the struggle between the tendencies of
the different trade union factions : anarchist, syndicalist and
reformist. The progress of this struggle may be briefly indicated.
In 1906 there was a split in the Socialist Party between reformists
and revolutionaries. The General Federation of Workers came
under the control of the latter, and adopted as a basis for its activities the programme of the French General Confederation of Labour
as defined in the Amiens Charter \ The Argentine Regional Labour
Federation followed suit by accentuating its revolutionary outlook,
and in the same year, at its Fifth Congress, adopted a definitely
anarchist programme, which in practice produced a recrudescence of
the strike movement, though in most cases the strike was a failure.
In view of these dissensions, which compromised the whole
labour movement, many unions withdrew from the central organisations and proclaimed their independence.
The attempts made during the following years to regroup the
forces of trade unionism succeeded partially in 1909. The General
Federation of Workers and the independent unions combined to form
a new central organisation, the fourth in date, namely the Argentine
Regional Labour Confederation (Confederación Obrera Regional
Argentina). A few years later, in 1914, this latter organisation was
in turn absorbed by the Argentine Regional Labour Federation.
Thus, unity was temporarily established under the anarchist flag.
But the struggle between the different tendencies, now transferred to the united organisation itself, soon led to renewed schism.
In 1915, at the Tenth Congress qf the Argentine Regional Labour
Federation, the syndicalists having triumphed over the anarchists,
the latter seceded in support of the purely anarchist programme
established by the Fifth Congress. From that date there were two
central trade organisations of the same name, distinguished only by
the date of their foundation and their tendencies : the syndicalist
Argentine Regional Labour Federation of the Tenth Congress (1915)
and the anarchist Argentine Regional Labour Federation of the
Fifth Congress (1906).
The war, which divided the Socialist Party and the trade union
1
Cf. Freedom of Association, Vol. II, France.
ARGENTINE REPUBLIC
ISC
centre between the advocates of intervention a n d those of neutrality,
and t h e Russian Revolution, which rendered the problem of international affiliation acute, also acted as disruptive elements in the
movement. T h e anarchist Federation joined the provisional International Council of Red T r a d e Unions, but withdrew w h e n the R e d
T r a d e Union International was finally founded.
T h e syndicalist
Federation, on t h e contrary, provisionally joined the International
Federation of T r a d e Unions of Amsterdam.
I n the meantime, the economic and social situation in Argentina
h a d changed considerably. During the war, industrialisation had
made great progress, which, in spite of the above-mentioned dissensions, was accompanied by a parallel progress in the membership
of the trade unions *. T h e prosperity of the war years came to an
end at t h e close of hostilities.
T h i s sudden disturbance- of
equilibrium led to a series of grave social disputes, which sometimes
degenerated into general strikes and riots, followed by ruthless
repression. I n these conditions, the restoration of labour unity was
felt to be essential. I n 1921 a W o r k e r s ' Unity Committee was set
u p , composed of five delegates from the syndicalist Federation, five
from the anarchist Federation, and five from t h e independent unions.
T h i s Committee succeeded in convening a T r a d e Union Unity
Congress in March 1922, attended by representatives of 320 unions
of various tendencies. T h e deliberations of t h e Congress led to the
foundation of a single trade union centre, the Argentine T r a d e
Union Federation [Unión Sindical
Argentina).
T h e only basis on which it had been found possible to establish
this unity was that of trade union neutrality with respect both to
political parties at home and to international federations abroad. But
this solution satisfied neither t h e anarchist elements, which remained
outside, nor the moderate elements, which again took refuge in
independence.
1
The following table shows the growth of the syndicalist Argentine
Regional Labour Federation from 1915 to 1920.
Year
I9!5
1916
1917
19*8
I9Ï9
1920
The anarchist
membership.
Number of unions
51
70
199
350
530
533
Federation
also had
Membership
59,400
/0,50O
79,800
83,999
100,100
118,200
a considerable
increase
in
16o
FREEDOM OF ASSOCIATION
The Argentine Trade Union Federation, which, at the outset,
had a membership of about 80,000 (the trade unions had lost
considerably in membership during the years after the war) rapidly
declined. In 1926 the membership had fallen to 15,926, in 1927 to
10,470. The same fate was suffered by the anarchist Argentine
Regional Labour Federation. The independent unions, on the
contrary, grew steadily stronger, and in 1926 they united to form a
new organisation called the Argentine Labour Confederation
(Confederación Obrera Argentina).
The influence of this organisation, which is based principally on the Railwaymen's Union, with
over 50,000 members, and the Union of Municipal Workers, has
grown steadily. When founded, it had a membership of 79,000, and
by 1929 this had risen to over 100,000. The Argentine Labour
Confederation, which is at present the most representative trade
union organisation in the Argentine Republic, is reformist in
tendency, and belongs to the International Federation of Trade
Unions of Amsterdam.
It may be added that negotiations with a view to amalgamation
were opened between the Argentine Trade Union Federation and the
Argentine Labour Confederation in March 1929, but that so far no
result has been reached.
Trade unionism among agricultural workers began to make some
progress only quite recently. In 1916 the Argentine Agricultural
Federation was founded, with only 860 members. By 1925 the
membership had risen to 14,855, since when progress has been
slow but sure'. The aims of this organisation include, in addition to
the protection of the trade interests of agricultural workers as against
large landowners, the organisation of co-operative societies and
mutual aid societies.
§ 2. — The Employers' Movement
The Argentine workers' movement has two characteristic
features ; first, its localisation in the capital, Buenos Aires, and
certain other towns in the interior, Rosario, Tucuman, Santa-Fé,
Mendoza, Cordoba ; and secondly, its extreme instability.
The employers' movement, on the contrary, not only covers all
the economic activities of the country, but is at the same time solidly
organised. The Argentine Rural Association, which in every respect
may be regarded as a true agricultural trade association, protects the
ARGENTINE REPUBLIC
IÓI
interests of large landowners and farmers. The Argentine Industrial
Federation fulfils the same need for industry, and, finally, the Commercial Defence League and the Confederation of Commerce and
Industry do the same for commerce.
The principal organisation, however, for the protection of
employers is the National Labour Association (Asociación del Trabajo) created in 1919 to withstand the labour movement. It consists
of employers of all kinds without distinction, heads of industry,
landowners, large and small traders. Every member of the Association is bound to contribute to the fund for combating strikes, and
in his relations with his workers to comply with the instructions drawn
up by the executive committee of the Association. This side of the
employers' activities is supported by the organisation of " free trade
unions " on the model of the Spanish free unions, which intervene in
labour disputes and take the place of strikers.
Freedom of Association
a
CHAPTER II
THE LEGAL STATUS OF TRADE ASSOCIATIONS
The Argentine Republic, like most other South American States,
has, as yet, no special legislation on the right of association for trade
purposes. This right is based at present on only three enactments
of a general nature : the Constitution, which in Article 14
guarantees the right of associations to exist ; the Civil Code, which
in sections 30-50 gives them legal personality under certain conditions ; and the Act of 10 June 1010 on social security, which
imposes certain limitations on their freedom of action.
§ 1. — The Constitutional Guarantee
Article 14 of the Argentine Constitution of 1853 is the principal
source of the right of association for trade purposes. This Article
says :
Ail inhabitants of the Republic (therefore including foreigners)
shall have the right to associate for all useful ends in accordance
with the laws governing the exercise of this right.
As no law has been passed to govern the application of this
constitutional principle, the right of association must be interpreted
according to the general law. That is to say, trade associations, like
all other associations, are completely free to organise and act, but
have no special rights, either in their civil relations or in their
relations with the public authorities. The Civil Code, however, by
granting trade associations legal personality under certain conditions,
makes up to some extent for this omission.
§ 2. — Legal Personality of Trade Associations
According to section 33, subsection 5 (Book I, Part I : Legal
Persons), of the Argentine Civil Code, associations whose principal
object is the public welfare, which have property of their own, and
ARGENTINE REPUBLIC
163
in virtue of their rules have capacity to own property and are not
dependent on State subventions, may be granted legal p e r s o n a l ^
and exercise all the rights conferred by t h e Code on physical
persons.
T h a t trade unions may make use of these provisions is shown
by the fact t h a t some of the most flourishing associations, such as
the powerful railwaymen's unions have applied for and obtained legal
personality. But in spite of the advantages derived from recognition,
such as the right to acquire and own property, to contract, to sue
and to be sued, etc., the example of those unions has not been followed by the majority of trade associations.
T h i s abstention may be explained by two k i n d s of reasons, the
same, it may be added, that make trade associations in all countries
hesitate before seeking this form of recognition. T h e trade unions
are afraid in the first place of the effects relating to property t h a t
automatically follow from the possession of corporate s t a t u s ; in other
words, the unlimited civil liability they incur in the event of failure
to carry out the obligations assumed, particularly in t h e event of a
breach of contract of employment by a strike 1.
Besides fearing financial bankruptcy in consequence of this
unlimited civil liability, the trade unions are afraid t h a t the executive
authority, in conferring legal personality — an act within its discretion to revoke, not only for violation of the law b u t for reasons of
public interest — m a y discriminate between the various associations
according to their politics or programme of action 2 .
1
It may be recalled that certain foreign laws have more or less radically modified these general principles in favour of trade associations.
Thus, the British Trade Disputes Act, 1906 (not repealed by the Act of
1927), exempts trade unions from liability to damages for any tortious act
done in contemplation or furtherance of a trade dispute (cf. Freedom of
Association, Vol. II, Great Britain, p. 74). Similarly, French trade union
law, as amended by the Act of 12 March 1920, in section 5, limits the civil
liability of trade unions by declaring that the land and buildings and
furniture necessary for their meetings, libraries and courses of technical
instruction, as also their special mutual aid and pension funds, are
exempt from distraint (cf. Freedom of Association, Vol. II, France, pp. 139
et seq.).
2
Here, too, special trade union legislation in other countries has
simplified the rules as to legal recognition. It may be recalled, for
instance, that the French Act of 1884-1920 on trade unions, which has
served as a model for many foreign laws, does not make the recognition
of the union depend on previous authorisation but only on the contract
on which the association is based (cf. Freedom of Association, Vol. II,
France, p. 130).
164
FREEDOM OF ASSOCIATION
To sum up, the trade unions, whether rightly or wrongly, regard
the system of recognition less as an advantage than as a danger to
their independence, and as a possible fetter on their freedom of
action.
§ 3. — The Social Security Act *
Recognised associations and de facto associations alike are subject to the Act of 30 June 1910. This Act was intended to prevent
and punish terrorist action* and anarchist propaganda, and all that
need be considered here are the provisions directly relating to the
right of association, assembly, and strike. Section 8 makes it
compulsory for societies, associations and private individuals who
wish to hold a public meeting, whether in the open or indoors, to
apply for previous authorisation from the local authorities. This
authorisation will be refused if the association or meeting proposes
to propagate anarchist doctrines or prepare for or incite to action
punishable by the law. If at a meeting, even one duly authorised,
facts become apparent which if previously known would have led to
the prohibition of the meeting, the local authorities may at once
dissolve it. Any person who opposes the order to dissolve the
meeting, or who participates in a prohibited meeting, is liable to
imprisonment of six months to one year. The promoters or leaders
are liable to the maximum penalty (section 9). An appeal against
the prohibition of an association or meeting may, however, be taken
to the local magistrate, who, after a summary enquiry, confirms or
dismisses the prohibition (section 11). Incitement to a strike or
boycott by means of insults, threats or violence is punished by
imprisonment from one to three years (section 25).
These penalties are imposed by summary jurisdiction, the accused being kept in detention during the whole proceedings (section 32).
If this Act were meant literally, it might seriously hamper
corporate action. In consequence, the new Penal Code (Part. V,
Reform Act, section 30)-, while not repealing the whole of the Act,
relaxes certain of its provisions. It protects the right of lawful
assembly, and reduces thé penalties for the offence of inciting to a
1
Cf. Código penal de la República Argentina, p. 95. Ley de seguridad
social, No. 7029, and Ley de reformas, sections 30, 31, 32, 33, pp. 90 and 91.
ARGENTINE REPUBLIC
I65
strike or boycott. According to section 30, subsection 1, any person
who compels a worker by violence or threats to take part in a strike
will be punished by imprisonment of three m o n t h s to a year.
Subsection 3 adds that any person who prevents or disturbs a lawful
meeting will be liable to the same penalty.
I n spite of these relaxations, t h e legal status of trade associations
still seems precarious in certain respects, and m a n y Bills have been
introduced, both by the executive authorities and b y Parliament
itself, with a view to defining the status of trade associations more
clearly. I t will be sufficient to enumerate these various Bills and
to summarise the principal features of the last in date, which is now
before Parliament.
§ 4. — Bills concerning the Right of Association for
Trade Purposes
During the twenty-five years that the question of trade union.
regulation has constantly been before Parliament, the Chambers,have
dealt with the following Bills :
Message and Bill of 6 May 1904 of the National Executive
Authority.
Bill of Deputies Dr. J. Justo, Dr. A. Palacios, Dr. M . Laurencena
(cf. Diario de Sesiones de diputatos, 1912, Vol. I, p . 284).
Bill of 25 September 1915 of Deputies Repetto, Dickmann, etc.
(Ibid., 1915, Vol. I l l , p. 513).
Bill of 3 J u n e 1918 of Deputies Justo, Dickmann, etc. (Ibid.,
1918, Vol. I, p . 255).
Declaration of 8 January 1919 of Deputies Repetto and Bravo,
asking the executive authority to include on the agenda of an
extraordinary session legislation concerning the recognition of
w o r k e r s ' trade unions (Ibid., 1918, Vol. I V , p p . 53 et seq., Vol. V I ,
p p . 201 et s e q . ) .
•
•
Bill of 8 J a n u a r y 1919 of Deputy G. del Barco, concerning
arbitration, and employers' and workers' associations (Ibid., 1918,
Vol. V , p . 23).
Bill of 28 May 1919 of Deputy M. Sanchez Sorondo
(Ibid.,
1919, Vol. I, p . 257).
Bill of 6 J u n e 1919 of Deputy C. Becú (Ibid., 1919, Vol. I,
p . 384).
Bill of 12 J u n e 1919 of Deputy C. Rodriguez (Ibid., 1919,
Vol. I, p . 529).
Bill of 3 August 1920 of Deputies Justo, Bunge, etc.
(Ibid.,
1920, Vol. I l l , p . 708).
Draft Labour Code of 8 January 1921 introduced by the National
E x e c u t i v e Authority, Part X V I I I , sections 452 to 481 : Trade
Associations.
166
FREEDOM OF ASSOCIATION
Bill of 4 July 1924 of Deputy Muncio (Ibid., 1924, Vol. II,
P- 393)To these Governmental and Parliamentary Bills may be added
a whole series of Bills drafted by private organisations, such as that
on trade associations approved by the Congress of Co-operation held
at Buenos Aires in October 1919 '.
This simple enumeration is enough to show the interest taken
in the problem of trade union regulation not only in Parliament but
also in certain sections of the general public.
In spite of all these efforts, so far it has not been possible to
solve the trade union problem, a fact that must be ascribed not
merely to its complexity but above all to the hostility of those most
directly concerned. Employers, or rather their great fighting
organisations such as the National Labour Association, have declared
against all regulation because they fear that legal recognition would
mean for them an obligation to recognise the revolutionary trade
unions. The workers' organisations, for their part, most of which
were until recently under the influence of anarchist doctrines, were
naturally opposed to all idea of regulation. In brief, until the last
few years the social atmosphere was not favourable to a settlement
of this question. In the historical section it was shown, however,
that this atmosphere has greatly changed. Since the foundation of
the Argentine Workers' Confederation in 1926, the relations between
workers' and employers' organisations have become closer, while at
the same time both organisations have come into more frequent
touch with the public authorities, so that it may now be expected
that the Bill at present before Parliament will be passed in the near
future.
According to a memorandum of the Legislative Division of the
National Labour Department (published by the Boletín de Servicios
de la Asociación del Trabajo; of 20 September 1928), the main
principles of this Bill are as follows :
The status of employers' and workers' trade associations would
be governed by a single Act consonant with the spirit of the
Argentine Constitution, which guarantees the right of association to
all inhabitants of the country without distinction. Employers' and
workers' associations would be bound to recognise each other with a
1
For the text of this draft see Thomas
fessionales, p. 247.
AMADEO
: Los Sindicatos pro-
ARGENTINE REPUBLIC
I67
view to facilitating the settlement of industrial disputes and concluding collective agreements. The Division further recommends the
authorisation of the formation of joint unions, particularly in
agriculture and small industry, where the distinction between
employer and wage earner is not very clear.
Trade associations would be founded on the principle of freedom
of organisation. In the opinion of the legislative Division,
compulsory organisation is not suited to the present economic
condition of the Argentine Republic.
Trade organisations would be authorised to pursue economic,
industrial, commercial, agricultural, moral and intellectual ends;
The Division considers it inexpedient to provide for a special
prohibition relating to the political activity of trade associations.
It would be permissible to exercise the right of trade union
action by any means not contrary to the laws and regulations for
the maintenance of public order.
The rules of trade associations would have to mention the name
of the organisation, its address and aims, the conditions of admission
and withdrawal of members, the composition and functions of its
administrative bodies, and the procedure for dissolution of the
organisation.
The Division further proposes that a clause concerning recourse
to conciliation must be compulsorily inserted in the rules.
Trade associations would be given legal personality, and would
have the right to represent such associations in bodies dealing with
questions of labour legislation, labour disputes, etc. In respect to
this last prerogative, the Division hopes that employers' and workers'
organisations will be given equal representation, under the chairmanship of a representative of the authorities, in all institutions
intended to prevent or settle labour disputes, and in all State advisory
bodies. It recommends, finally, that in the National Labour
Department joint advisory councils should be set up, which it would
be compulsory to consult before passing any social legislation or
amending any labour law.
These provisions show that the aim of the Legislature is not
merely to define the status of trade associations, but also to establish
their function as the official representative of the interests of the
whole trade, whether in the collective relations between employers
and wage earners, or in the relations of the organisations with the
public authorities.
CHAPTER i n
POSSIBILITIES OF TRADE UNION ACTION
§ 1. — Participation of Trade Associations in the
Administration of Social Legislation
In spite of the lack of legal recognition, the public authorities
have had recourse to trade associations for the enforcement of social
legislation.
Thus, the Act of 8 October 1912, organising the National
Labour Department 1 , provides for the establishment of joint labour
councils responsible for settling disputes arising out of the application
of social laws 2.
A Decree of 21 April 1917 authorises the workers' organisations
to submit to the National Labour Department any complaints
concerning contraventions of the social legislation in force, and
gives them the right to be informed of the effects of their intervention.
Finally, the Act of 30 September 1924, concerning the
employment of women and children 3, empowers trade associations,
through the medium of their executive committee, to institute legal
proceedings on their own account in cases of contravention of the
Act in question.
In all the cases indicated above the trade associations are not
merely given the power to collaborate with the Labour Inspectorate ;
they often take the place of the public prosecutor in the field of
social legislation. But in all these examples, the function of the
1
Cf. INTERNATIONAL LABOUR OFFICE : Legislación social de América
latina, Vol. I, pp. 38 et seq.
2
Cf. the Regulations of 2 January 1913 for the administration of this
Act, which in sections 11-27 defines in full detail the organisation and
functions of these councils (Crónica mensual del Departamento nacional
del Trabajo, No. 99, p. 1743).
* Cf. Legislación social de América latina. Vol. I. pp. 22 et sea.
ARGENTINE REPUBLIC
.
169
trade associations is after all limited to supervising the enforcement
of social legislation. The Homework Act of 8 October 1918 ', on
the contrary, extends this function in some measure to the work of
legislation itself.
By section 13 of this Act the National Labour Department must
appoint wages boards for every trade in which homeworkers are
employed whenever requested in writing to do so by at least fifty
workers in the trade or industry concerned. The work of these
boards is to fix minimum rates of wages by the hour or piece, with
reference to the maximum hours of work. The members of the
boards, whose duty it thus is to give effect to the principal provisions
of the Act, are not elected by all the workers in the trade, but
directly by the workers' and employers' trade associations in
proportion to membership. For the purpose of this election the
labour inspector must keep a register of workers' and employers'
associations. Section 15 of the Administrative Regulations of
30 December 1918 states that to be included in this register it is not
necessary for the trade association to have legal personality, nor
for its members to be workers or employers in an industry carried
on by homework.
This Act is a striking example of direct collaboration of the
trade associations in the execution of a social law, the only condition
being that the association is recorded in a register kept specially for
the purpose.
These few facts will show that even in the absence of legal
recognition, the de facto recognition of trade associations by the
public authorities is the rule in the Argentine Republic.
§ 2. — Bills concerning Collective Agreements,
Conciliation and Arbitration
The right of trade associations to intervene in the collective
settlement of conditions of work by way of collective agreements and
conciliation, on the contrary, has not yet been established by law.
All that can be done here, therefore, is to summarise the principles
that the Legislature proposes to sanction.
According to section 2 of the Collective Agreements Bill of
19 March 1919, still before Parliament, trade associations will be
1
Ibid., Vol. I, pp. 26 et seq.
170
FREEDOM OF ASSOCIATION
able to conclude collective agreements in the name of their members.
Their leaders, who have been duly authorised by the rules, will have
the power to represent the association or its members with respect
to third parties and to take any legal proceedings that arise out of
the enforcement of these agreements. Section 6 states that either
party to the agreement may take any proceedings, either in its own
name or in that of its members, to enforce the fulfilment of the
contractual engagement or to obtain compensation for damages.
Unless otherwise provided, the property of the association serves as
security for enforcement.
A collective agreement will cover all existing members of the
contracting associations, all persons subsequently joining the associations, and, unless otherwise provided, third parties within the
limits of the local or industrial application of the agreement.
For disputes arising out of the interpretation of collective
agreements, only the wages council set up by the contracting parties
will have competence. An appeal against the decisions of this
council may be taken within eight days to the competent judicial
authority, unless the parties have fixed in the agreement some other
appeal authority. After a period of ten days the decisions of the
wages councils, like those of the appeal authorities, will become
enforceable.
In addition to their functions concerning jurisdiction, the wages
councils will become responsible for wätcliiug uver lue enforcement
of the agreement, for suspending its application if there have been
substantial changes in the economic situation, and for preventing
strikes that threaten to break out.
During the whole period of the collective agreement the parties
are forbidden on pain of civil liabilities to have recourse to militant
action, such as strikes, lock-outs, boycotts, dismissals, etc. Trade
associations that assist members guilty of a contravention of this
kind are liable to the extent of their property for the consequent
damages.
A Bill concerning conciliation and arbitration, introduced in
Parliament on the same date, which provides for the introduction of
a system of compulsory conciliation and arbitration in labour disputes, is also still pending. One part has been given practical effect
by a Decree of 20 December 1922, by which joint arbitration courts
were set up for the railways '.
1
Legislación social de America latina, Vol. I.
ARGENTINE REPUBLIC
I71
To sum up, legislation on trade associations, collective
agreements, conciliation and arbitration is still lacking. The fate
of the Bills on collective agreements and conciliation and arbitration
seems, moreover, to depend on that of the Bill on trade associations.
It may be added, however, that recently a new draft Labour Code
was introduced in Parliament which would deal with all of these
three problems at once.
CONCLUSION
In the absence of special legislation in the matter, the right of
association for trade purposes in the Argentine Republic rests solely
on three general enactments : the Constitution, which in Article 14
guarantees the right of association to all inhabitants of the Republic ;
the Civil Code, which in sections 30 to 50 makes it possible for
associations to acquire legal personality ; and the Act of 30 June
1910 concerning social security, amended by the new Penal Code,
which, although principally directed against anarchist agitation,
limits or is capable of limiting the freedom of action of trade
associations.
For a period of some twenty-five years Parliament has had
before it a series of Bills on trade associations, but hitherto none of
these has obtained legislative sanction.
According to the last of these Bills, now before Congress, trade
associations would be free organisations endowed with legal personality and powers to conclude collective agreements, intervene in
conciliation and arbitration proceedings ÍÍI cuiuieuíion with labour
disputes, and represent its members in State advisory councils.
It should be added that the draft Labour Codes also before Congress
propose to deal with all the aspects of the trade union question.
BIBLIOGRAPHY
I. — OFFICIAL PUBLICATIONS
Constitución Política de la República Argentina.
Código civil de la República Argentina, 1921, Book I, Part I, sections
30 to 50. De las personas jurídicas.
Código Penal, Ley de Seguridad social (No. 7029, 30 June 1910L
Ley Orgánica del Departamento Nacional del Trabajo (No. 8999,
8 October 1912) ; INTERNATIONAL LABOUR OFFICE : Legislación social
de América latina, Vol. I.
Reglamentación de la Ley orgánica del Departamento Nacional del
Trabajo (No. '8999, 2 January 1913).
Ley sobre el trabajo a domicilio (No. 10505, 8 October 1918). INTER: Legislación social de América latina, Vol. 1.
NATIONAL LABOUR OFFICE
Reglamentación de la Ley sobre el trabajo a domicilio (30 December
1918).
Decreto del tribunal arbitral para cuestiones ferroviarias (22 December
1922). INTERNATIONAL LABOUR O F F I C E : Legislación social de América latina, Vol. I.
Act of 30 September 1924, concerning the employment of women and
young persons. INTERNATIONAL LABOUR OFFICE : Legislative Series,
1924, Arg. 1.
II. — GENERAL LITERATURE
AMADEO,
Tomás. Los Sindicatos profesionales. Buenos Aires, 1922.
BIALET-MASSÉ, Dr. J. Informe sobre el estado de las clases obreras.
2 vols. Buenos Aires, 1904.
FERRARAZZO, E. J. " La acción obrera. " Revista de Ciencias Económicas, December 1926, January, February, March, April, May, 1927
MASPERO CASTRO,
A. La Cuestión social. Buenos Aires, 1919.
PALACIOS, Alfredo L. " E l Código civil argentino y los obreros. "
Rev. de C. E., July 1919.
El Nuevo derecho. Buenos Aires, 1920.
Rurz
I925-
MORENO,
J. A. Legislación social argentina.
Buenos Aires,
FREEDOM OF ASSOCIATION
174
UNSAIN,
Dr. A. Leyes obreras argentinas, 1917.
Manual de Legislación obrera argentina, 1918.
Legislación del Trabajo. 3 vols. Buenos Aires, 1925 and 1928.
Legislación social argentina.
Aires, 1919.
Diccionario elemental.
Buenos
•
" Derecho de asociación profesional ". Rev. de C. E., January,
February, March, April, 1928.
Boletines de la Revista de Ciencias Económicas, January to April,
1920 : Encuesta sobre la cuestión social. Articles by : Dr. Enrique DICKMANN, Dr. José INGENIEROS, Dr. Juan B. JUSTO, Dr. Alfredo PALACIOS, and
Dr. Alejandro UNSAIN.
" Información sobre la Federación obrera regional Argentina. "
Rev. de C. E., July 1927.
" Información sobre la Unión sindical argentina. " Rev. de C. E.,
July 1927.
" Estatutos de la Confederación obrera argentina. " Rev. de C. E.,
October 1927.
Proyecto de Código del trabajo, 8 June 1921.
Proyecto de Código del trabajo por el Dr. Carlos
SAAVEDRA LAMAS,
1927-1928.
Proyecto de Código del trabajo por el Senador MOI.INARI, 1928.
BRAZIL
CHAPTER I
HISTORY OF THE TRADE UNION MOVEMENT
The labour movement in Brazil chiefly takes the form of mutual
aid and co-operative societies.
This preponderance of mutual aid and co-operative organisations
over trade unions in the strict sense of the term is due to economic
and political reasons.
Among the economic reasons are the great area of the country,
the relatively small density of the population, particularly in the
States of the interior, the inadequate means of communication, the
preponderance of agriculture over industry, the extreme instability
of the population on account of the intense migration movement and
the diversity of the racial elements. All these factors and others have
prevented the development of trade unionism — which cannot achieve
tangible results except over a considerable period — and have at the
same time favoured the institution of mutual aid organisations which
can procure immediate advantages for their members.
There are also political reasons. The Brazilian Government,
while always very strict in dealing with revolutionary trade unions,
has been lavish in its favours to societies and organisations for the
purposes of mutual, aid and social solidarity. This can be clearly
seen from the analysis of trade union legislation (cf. Chapter I I ) .
Under these conditions it can be easily understood why trade
unionism has never played a very important part in Brazil.
The first manifestations of trade union activity appeared towards
the last decade of the nineteenth century. About 1890 a workers'
club (political rather than trade union in character) was founded
for opposing the Government plans for inserting in the Federal
176
FREEDOM OF ASSOCIATION
Constitution provisions prohibiting strikes. Once it had achieved
its aim the club went out of existence.
A short time later the first workers' trade union for purposes
of resistance was set up in the shipbuilding yards. As a result of
an abortive strike, however, it also was dissolved. It was only in
the beginning of the present century that the trade union movement
began to be of some importance. Under the influence of immigrant
workers trade unions began to be set up in various parts, chiefly in
the most important industrial centres : Rio de Janeiro, Sâo Paolo
and Pernambuco.
In 1906 the regional federation of Rio de Janeiro convened a
national trade union congress in order to unite on a national basis
the organisations which were scattered over the different parts of
the country. The deliberations of this congress finally gave rise to
a central organisation, the General Confederation of Labour
(Confederaçâo Geral do Traballio).
This Confederation was no sooner founded than it began to be
split up by conflicting doctrines. At the second congress held at
Rio de Janeiro in 1912, the anarchists took over the direction of the
Confederation. The reformist elements seceded and founded a rival
general confederation. Both these organisations, however, were
short-lived. The reformist confederation was dissolved in 1914 and
the anarchist organisation in 1915.
The organisations belonging to these two trade union federations
naturally continued their independent existence. A certain number
of them, such as the federations of railwaymen, dockers, seamen,
iron and steel workers, textile workers and building workers, actually
grew to be of some considerable importance, particularly after the
war. Lack of unity in management, however, led even the soundest
of these organisations to break up periodically into a number of
scattered local trade unions. Thus the Seamen's Federation, which
at one time had a membership of about 100,000, was divided into
several sections and lost two-thirds of its membership. The same
occurred with the Railwaymen's Federation, which in 1920, before
the general railway strike, claimed to have 120,000 members, and
which has now only a third of that number.
There has been no lack of efforts to reunite the trade union
forces, but they have always been wrecked by the stubbornness of
the various factions existing in the trade union movement. The
work of unification has been made still more difficult in Brazil since
BRAZIL
177
the Act of 12 August 1927, concerning the suppression of Bolshevism,
granted full powers to the police authorities to dissolve any organisation of workers which they considered dangerous to the public
order.
In April 1929 a national workers' congress was convened at the
instigation of the various railway federations, and the General Confederation of Labour was revived. This revival can only be looked
upon as temporary, however, it being impossible to predict whether
the new central organisation will be able to overcome the economic
and political obstacles which bar its path.
The organisations of salaried employees, on the other hand,
have reached quite a high stage of development, especially in the
capital. The Association of Commercial Employees in Rio de Janeiro
has some 35,000 members, and the Union of Commercial Employees
has 18,000.
There are also three central organisations of employers : the
Commercial and Industrial Association (Centro Comercio e Industria), the Industrial Association of Brazil (Centro industrial do
Brasil), and the Federation of Commercial Associations of Brazil
(Federaçao das associaçdes commerciaes do Brasil) which defend the
occupational interests of Brazilian employers.
Freedom of Association
12
CHAPTER II
LEGAL SYSTEM GOVERNING TRADE UNIONS
Brazil was the first country in South America to recognise trade
unions. The federal Constitution of 24 February 1891, in Article
72, paragraph 8, contained, amongst other statements of fundamental
liberties, the right of association without previous permission.
As the trade unions developed, however, particularly towards
the beginning of the Twentieth Century, it became clear to the
legislator that the general law, to which the trade unions were
exclusively subject — as, in fact, are all other associations — was
no longer sufficient to meet the necessities of collective organisation
and action. For this reason, special legislative regulations were
issued, first of all for agricultural trade unions (Act of 6 January 1903)
and subsequently for other trade unions (Act of 5 January 1907).
The first Act on this subject, which was obviously inspired by
the Belgian Act of 31 March 1898 concerning trade unions 1. referred
to agriculture. This special care for agriculture can be easily
understood when it is remembered that, in the early twentieth
century, agriculture was still the basis of the national economic
system of Brazil. It was necessary to encourage land settlement
by liberal regulations for agricultural associations. As this Act also
applies to agricultural workers, who form an important proportion
of the working classes in Brazil, it will be briefly analysed here.
§ I. — Agricultural Trade Unions Act (6 January 1903)
a
According to this Act, the agricultural unions are associations
of persons exercising some occupation in agriculture, or in any kind
of rural industry, for the defence of the common economic, social
and moral interests of the members. Those engaged in agriculture
1
Cf. INTERNATIONAL
Vol. II, Belgium.
LABOUR OFFICE
: Freedom of Association,
2
INTERNATIONAL LABOUR OFFICE : Legislación Social de America
Latina, Vol. I, Brazil, p. 146. Lei dos syndicatos agrícolas.
BRAZIL
*79
are taken to be landowners, farmers, tenant farmers, métayer cultivators, cattle rearers, day workers, agricultural labourers, and all
persons employed in agricultural building, as well as all corporations
formed for agricultural work or for the development of rural industrv.
All classes of those engaged in agricultural work may therefore
enjoy the provisions of this Act, and form (the Act gives them the
choice) either trade union organisations for each special branch of
agricultural work or associations taking in several branches. The
Act refers more particularly to the latter form — the mixed trade
union — as is shown by certain provisions which could hardly be
taken advantage of by trade unions composed exclusively of agricultural workers. Section 9 states that the trade unions may undertake
all kinds of credit operations for their members, may make any necessary purchases of occupational requirements, and may sell the
produce of their holdings on behalf of the members. They may,
in addition, set up within the trade union producing and distributive
co-operative societies, agricultural credit funds, insurance societies,
provident funds and friendly societies. It is provided, however, that
these institutions must always maintain their complete financial
autonomy.
These provisions show clearly the aim of the legislation in
question, viz. to encourage by every possible means co-operation
between all the different elements of agricultural life.
The conditions for the constitution and working of agricultural
unions are purely formal. According to section 2, trade unions may
be set up without the authorisation of the Government, and they are
not liable to any restrictions or taxes. In order to obtain incorporation and enjoy the advantages granted by the Act, all that is required
is that two copies of the rules, a copy of the foundation deed and
a list of the names of the members, should, under the responsibility
of the executive, be deposited with the Registrar of Mortgages. The
same procedure must be followed whenever the rules are revised.
The rules must mention the headquarters, form and aims of the
association, the period for which it is set up, its method of management, conditions of admission and exclusion of members, and the
method of dissolution. Freedom to withdraw from the association
is guaranteed to the members, who may withdraw at any time, but
automatically lose all the rights and advantages inherent in their
membership. The member is at the same time compelled to fulfil
any obligations contracted towards the association. If, however,
18o
FREEDOM OF ASSOCIATION
the trade union has set up insurance or provident institutions, a
member retiring from the union may nevertheless continue to belong
to these institutions.
The trade union may not be dissolved unless the number of
members has fallen below the legal minimum of seven, or if dissolution is decided upon unanimously by the members.
In case of dissolution the assets of the trade union are liquidated
in the courts, and the product used for purposes of utility to
agriculture.
The agricultural unions may unite in trade union federations,
which are subject to the same conditions and enjoy the same
privileges as ordinary trade unions.
§ 2. — Trade Unions Act of 5 January 1907 '
As soon as the Act of 6 January 1903 concerning agricultural
associations had proved its value, legislative action was taken to
extend the privilege of legal recognition to associations of other
occupations. This extension was carried out by the Trade Unions
Act of 5 January 1907, which is based in large measure upon the
French Act of 21 March 1884 2 .
SCOPE OF T H E A C T
According to section 1 of this Act, all persons exercising
similar occupations, including those engaged in any of the liberal
professions, may form trade unions for the purpose of the study,
defence and development of the general and occupational interests
of their calling and of the members.
Aliens enjoy the same advantages as nationals under this Act.
The only distinction that is made is in section 2, paragraph 2,
according to which only Brazilians by birth or naturalisation, who
have been resident in the country for more than five years, and are
in full possession of their civil rights, may act on the executive of
trade unions.
1
Cf. Legislación Social de America Latina, Vol. I, Brazil. Decree
No. 1637 : Créa syndicates profissionaes ' e sociedades cooperativas.
2
Freedom of Association, Vol. II, France.
I8l
BRAZIL
Persons who have exercised an occupation for five years are
considered as still belonging to that occupation, even when they have
ceased to be employed, provided that they have not taken u p any
other occupation, and have been resident in the country for three
years.
W h e n the Bill was laid before the Chamber of Deputies,
section i contained an additional provision according to which the
right to form a trade union was extended to officials, salaried
employees, and workers employed by the Union, the Federal States,
and the municipalities, provided that they were not " invested w i t h
any share of public authority ". T h i s was opposed by the Senate,
and was deleted from the final text. T h e question arises whether
all classes of public officials are deprived of the right of occupational
association. I t would seem — and this is the point of view taken
u p by the authorised representatives of the Senate * — that while
associations of officials are not entitled to take advantage of the
special Act referring to trade unions, they are nevertheless free to
avail themselves of the provisions of the Constitution, which
guarantees the right of association to all inhabitants of the country,
without exception.
T h e agricultural unions are still subject to the special Act of
6 J a n u a r y 1903.
CONDITIONS AS TO F O R M
T h e conditions laid down in the Act of 5 J u n e 1907 for t h e
constitution and working of trade unions are taken with a few slight
variations from those of the Act on agricultural unions.
According to section 2, trade unions m a y b e formed freely,
without permission from the Government. I n order to enjoy t h e
advantages of t h e Act, t h e rules, the foundation deed a n d t h e list
of the names of all the members of the Committee, of the Council,
and of every other body engaged in the management of the association or t h e administration of its property, showing their nationality,
age, residence, occupation, and whether they are full or honorary
members, must be communicated in triplicate to the Registrar of
Mortgages in the district in which the organisation is set u p .
T h e Registrar of Mortgages must, within a week of this date,
send a copy of the rules to the Commercial Council of the State
1
Cf. Documentos
parlamentares
syndicates
profissionaes.
I82
FREEDOM OF ASSOCIATION
concerned (junta commerciale do Estado respectivo) and another to
the Attorney-General of the Republic. T h e latter must, within a
period of three months of receipt of this communication, send an
acknowledgment and certify that the regulations have been complied
with. If the Attorney-General does not reply within this period, any
irregularities which m a y exist are thereby removed.
Registration must be repeated whenever the executive or the
rules are changed.
T h e rules must state, on pain of being considered null a n d void :
( i ) the headquarters, duration, form and aims of the
association ;
(2) the conditions for admission and exclusion of members,
t h e n u m b e r of whom m a y never fall below seven full
members ;
(3) the methods of administration and the conditions of
dissolution ;
(4) the purpose for which the social capital is to be
employed ; it should, generally be used for some
institution of value to the occupation concerned.
T h i s section states t h a t no person will be compelled t o belong
to a trade union on any pretext whatsoever. Similarly, any member
of a trade union is free to withdraw at any time, but in doing so h e
sacrifices any contributions which h e m a y have paid, and all the
rights, concessions and advantages arising from his membership. I t
is only when the trade union has set u p separate institutions for
m u t u a l aid, provident work, the g r a n t i n g of credit, etc., that a
member who retires does not lose his contributions or t h e other
advantages offered.
T h e right of the trade unions to form federations was strongly
opposed in the Senate, b u t was finally granted in t h e following
terms : trade unions are entitled to form federations or central trade
unions, irrespective of territorial areas. T h e federations have separate
civil liability, and enjoy the same rights and advantages as ordinary
trade unions.
CHAPTER III
POWERS OF RECOGNISED TRADE UNIONS
Trade unions which are constituted in conformity with the
provisions of the Act are recognised as bodies corporate, and may
appear in court as plaintiffs or defendants ; they may acquire as a
gift, or for a consideration, real or personal property without any
limitation ; they may organise within their own union, and for the
benefit of their members, mutual aid, provident or co-operative
institutions, provided that the latter remain completely independent
financially.
Moreover, according to section 8, trade unions, which are formed in
a spirit of harmony between employers and workers, and which have
permanent conciliation and arbitration boards for settling labour disputes, will be considered as the legal representatives of the working
class as a whole, and may in this capacity be consulted on any matter
referring to their occupation. This provision deserves to be
emphasised, because it is very characteristic of the purpose of the
legislation. It was strongly opposed in Parliament, because it was
alleged to be in contradiction to the principle of freedom of
association enunciated in other sections of the same Act. Furthermore, the Committee of the Senate on matters of justice and
legislation had proposed that it should be suppressed. It was,
however, maintained, and gives a monopoly of legal representation
to joint unions or trade unions aiming at class co-operation.
The practical bearing of this provision may be variously
considered from the point of view of the trade union in its dealings
with the public authorities, or in its private affairs. In dealing with
public authorities, the trade unions certainly have the exclusive
privilege of legal representation, as is explicitly stated in the Act.
This privilege is of real value now that a National Labour Council
has been set up by the Act of 30 April 1923 1 for the purpose of
1
Cf. Legislación Social de América Latina, Vol. I, Brazil, pp. 157
et seq.
184
FREEDOM OF ASSOCIATION
preparing and supervising t h e whole of labour legislation. T h e
joint unions are represented on this Council b y four members out
of twelve (two workers' a n d two employers' representatives) and m a y
therefore play an effective part in guiding t h e social a n d trade union
policy of the Government.
On t h e other hand, it does not seem that this privilege can b e
applied in t h e private sphere, at least in t h e present state of t h e
legislation. I n fact, until a number of definite provisions have been
adopted a n d a n appropriate organisation set u p for transferring labour
relationships from t h e sphere of private law to that of general law
(as has been done in certain other countries *) t h e agreements
concluded by trade unions of this type, whether for fixing labour
conditions or for settling disputes, will remain for third parties res
inter alios acta 2 .
However that m a y be, t h e general aim of this legislation is
important, tending as it does to encourage joint unions, or at
least trade unions for class co-operation, which supplement their
work of defending vocational interests by various provident institutions such as friendly societies a n d co-operative societies. I n this
connection t h e characteristic fact should be noticed that i n one A c t
the position of trade unions a n d t h e position of co-operative societies
were regulated simultaneously. T h i s trade union policy can be seen
not only in legislation b u t also in Government practice. T h u s t h e
Federal Minister of Agriculture, I n d u s t r y a n d Trade instituted a
special propaganda service for promoting the formation of trade
unions, co-operative societies a n d friendly societies.
•During 1926 this body published detailed instructions defining
its methods of work. T h i s document shows that t h e propaganda,
which is free from p a r t y bias, is carried on b y t h e publication of
1
Cf. in particular Freedom of Association, Vol. IV, Italy and Spain.
Brazil has no legislation on collective agreements or on conciliation
and arbitration. In the State of Sao Paolo, however, rural courts have
2
been set up by the Act of 10 October 1922 (cf. INTERNATIONAL LABOUR
OFFICE : Legislación Social de America Latina) for the purpose of
settling disputes between agricultural landowners and settlers. These
courts consist of a district judge and two other members, one of
whom is appointed by the landowners and another by the settlers. Cf. also
the Bill brought forward by Mr. Lacérela concerning compulsory arbitration (2 July 1917) and a Bill concerning the right to strike brought
forward by the same person on 26 November 1917, both of which are
reproduced in Documentos parlamentares : Legislaçâo Social, Vol. I I ,
PP- 583-596.
BRAZIL
185
books and newspaper articles, by lectures, consultations, courses
given in the halls of workers' associations, schools, workshops,
factories, farms, etc.
For this purpose officials are recruited from among the workers and
other competent persons to carry out propaganda. These officials advise
any workers who wish to set up trade unions or co-operative societies,
and subsequently provide useful assistance to these associations in
carrying out all their operations.
When a society of this type is formed, it submits its rules to the
Minister, and when they have been approved the society obtains official
assistance.
The principles which induced the Government to develop the institution of such associations are based on the idea of social solidarity. The
trade union is the indispensable basis, the primary institution which alone
can receive incorporation, and which has the power to organise cooperative societies or friendly societies. On this basis have been built up
gradually the distributive co-operative societies, reserve funds, and finally
producing co-operative societies.
The aim of the Government in promoting this propaganda is to give
satisfaction to the reasonable claims of the working class by creating an
instrument of a pacific
nature which is likely to lead to harmony between
capital and labour 1.
T h u s , officially recognised trade unions receive extensive favours
from the Government, while, on t h e other h a n d , revolutionary
organisations are very strictly supervised. I t will be remembered,
indeed, that, according to an Act of 12 A u g u s t 1927, for the " suppression of Bolshevism ", the Government is authorised to dissolve
any workers' organisation which it considers contrary to public
order.
1
Extract from a report presented to the International Immigration
and Emigration Conference at Rome by Mr. Bandeira de Mello.
CONCLUSION
i
The right of occupational association, which is guaranteed by
the Federal Constitution of Brazil of 1891, has been organised by
special regulations, first of all by the Act of 6 January 1903
concerning agricultural unions, and subsequently by the Act of
5 January 1907 on trade unions in general.
Trade unions, whether in agriculture, industry or the liberal
professions, may be freely formed, and are not subject to any
previous authorisation. In order to enjoy the advantages conferred
by the Acts, it is sufficient to fulfil certain formal conditions :
notification of the rules, of the foundation deed and of the list of
members. The purpose of these formalities is to make the fact of the
creation of the trade unions publicly known.
Once the trade unions have been set up in conformity with the
Act, they become incorporated, and are entitled to appear in the law
courts, to acquire real or personal property, .and to organise mutual
aid, prüviueiií. and co-operative institutions. Joint unions and trade
unions for class co-operation enjoy the further privilege of legal
representation of all the working class.
The Brazilian Government has set up special propaganda institutions for encouraging legally recognised trade unions by every means
at its disposal. Revolutionary unions, on the other hand, come
under the Act of 12 August 1927 for the suppression of Bolshevism,
which authorises the Government to dissolve all organisations
considered dangerous for public order.
BIBLIOGRAPHY
OFFICIAL TEXTS
Constituiçâo politica da República Brasileira. 1891.
INTERNATIONAL
LABOUR OFFICE
: Legislación social de America
latina. Volume I, Brazil :
Lei dos Syndicates agrícolas (6 January 1903), pp. 146 et seq.
Decree (5 January 1907) : Crea Syndicatos profissionaes e Sociedades cooperativas ; pp. 147 et seq.
Decree (30 April 1923): Crea o Consèlho Nacional do Traballio ;
pp. 157 et seq.
Act (10 October 1922): Crea Tribunas ruraes no Estado de Sao
Paulo.
Código penal brasileiro (sections 205 and 206).
Documentos parlamentares : Legislaçâo social. Volume IL Syndicatos profissionaes, pp. 382-479.
Collection : Boletim do "Ministerio da Agricultura, Industria e Commercio.
Collection : Revista do Conselho Nacional do Traballio.
CHILE
CHAPTER I
HISTORY OF T H E T R A D E U N I O N M O V E M E N T
§ I. — The Workers' Movement
T h e original Constitution of Chile, dating back to 1833,
guaranteed in Article 10, paragraph 6, the freedom of association for
peaceable purposes to all citizens, without the necessity of any special
permission. I n addition the Chilian Civil Code of 1857 permitted
trade associations to be recognised as bodies corporate, with all the
advantages which that implies. T h a n k s to these liberal provisions the
trade union movement could from the very beginning develop without
let or hindrance. As in all other countries, the movement was first
developed in the form of mutual aid societies \ I n the first period
from 1853 to 1870 progress was slow, and it is easy to follow the
successive steps. I n 1853 the printers of Santiago founded the first
m u t u a l aid society w i t h t h e title P r i n t e r s ' Association ; this society
was later changed and took the title P r i n t e r s ' Union. I n 1855 the
printers of Valparaiso followed their example, and in the same city
in 1858 a society of craftsmen was set u p which took its members
from various crafts in the town. I n 1862 two similar societies were
formed, one in Santiago and the other in L,a Serena. I n 1870 there were
thirteen friendly societies throughout the country which were.
recognised as bodies corporate.
From this date onwards the rate of development was more rapid ;
there were 39 recognised friendly societies in 1880, 76 in 1890, 240 in
1
O. PARRAO : Historia de la mutualidad en Chile, 1923 ; Poblete
TRONCOSO : La Organización sindical en Chile y otros Estudios sociales,
1926 ; IDEM : Labour Organisations in Chile, Washington, 1928.
CHILE
189
1900 and 600 in 1925. These figures include only officially recognised
friendly societies which are bodies corporate. It should be noted that
there are a number of mutual aid institutions which have not applied
for recognition and which are therefore not included in the official
census.
The great majority of friendly societies belong to the Workers'
Social Congress of Chile (Congreso Social Obrero de Chile), a national
organisation with its headquarters at Santiago, which was instituted in
1926 for the purpose of co-ordinating the work of the various mutual
aid societies. It includes 350 societies with a total of 50,000 members.
The Catholic Friendly Societies, with 4,000 members, united
in 1908 to form the Federation of Societies of the National Union.
These figures show that the mutual aid movement covers a considerable proportion of the wage-earners in Chile, and the reasons for
this fact are not hard to find. In addition to material reasons, such
as we find everywhere when industrialism springs up and which led
first the master-workers and then the wage-earners to organise
themselves for protection againsttherisksof their existence, there were
and still are legal and administrative reasons. Recent social legislation
in Chile,and particularly trade union legislation, has tended to encourage
organisations of this type. Moreover, a Decree of the President of the
Republic dated 1928 dissolved for reasons of public order all trade
union organisations of a revolutionary nature, such as the Workers'
Federation of Chile, and the Industrial Workers of the World. The
suppression of these two main trade union organisations will doubtless
lead the wage-earners to a greater extent even than formerly to seek
the benefits of social solidarity in the friendly societies.
It is only at the beginning of the twentieth century that one can
speak of a trade union movement in the strict sense of the term. The
reasons for this are the late development of industrialism in Chile,
the distance between this country and the important centres of the
labour movement and the almost complete absence of immigration
during the earlier period.
The earliest " resistance " organisations, no longer designed solely
for the purposes of mutual aid, were set up in 1900 in the large
industrial centres, Santiago, Valparaiso and Antofagasta. Most of
these organisations, however, were short lived, being formed merely
for the purposes of strikes and dissolved immediately afterwards. The
trade union movement only took definite form in 1909 when the first
central organisation was set up : the Workers' Federation of Chile
(Federación Obrera de Chile). The Workers' Federation, formed on
ICO
FREEDOM OF ASSOCIATION
the basis of a mutual aid society (thus showing the close connection
between the trade union movement and the friendly societies), originally pursued a policy of social collaboration and the improvement of
working conditions. According to the rules drawn up in 190g and
approved by the Executive in 1911, the main aims of the Workers'
Federation were : to co-operate in organising joint arbitration tribunals
under a neutral chairman for the settlement of labour disputes ; to
obtain the creation of Labour Offices for establishing uniform working
conditions throughout the different occupations in the country ; to
cultivate the most cordial relations with the public authorities in order
that the chief claims of the workers, such as the eight-hour day and
the minimum wage, might be adopted in legislation.
The Workers' Federation was recognised as a body corporate by
the Decree of 11 September 1911.
The original programme of the Federation changed as its
influence extended to the whole country and as the development of
industrialism led to larger and more frequent industrial disputes.
The various congresses held since 1911 show the stages of this
development. At the Congress of Valparaiso in 1917 one of the
decisions taken was to open the membership of the Workers' Federation to all wage-earners in the country without distinction of sex,
nationality, race or political or religious convictions. At the Congress
of Concepción in 1919 the programme of action-of the Federation was
completely revised. According to the statement of principle contained
in the preamble to the new rules the Workers' Federation proposes
inter alia to protect the wage-earners against all forms of capitalist
exploitation and State oppression, to abolish the capitalist system and
in due course to undertake the administration of production and
exchange. Two years later, at the Congress of Rancagua, the
Workers' Federation of Chile decided to join the Red International.
At the same Congress the internal structure of the organisation was
altered. The local unions (Consejos Federales), which up to that
time had been organised in the main on an occupational basis, were
reorganised by industries. All professions, crafts, arts and occupations
were affiliated to one of the following six groups ; foodstuffs, manufactures, transport, building, public services and mines. This centralisation of the working class movement in the industrial federations
on a national basis was accompanied by trade union concentration as
regards the administrative basis of the movement. The local unions
were more closely bound than formerly, in the first place to the
departmental unions and in the second place to the provincial unions.
ICI
CHILE
T h e Congress, which meets every two years, is the sovereign body in
the Federation, and decisions taken by simple majority, provided t h a t
70 per cent, of the affiliated unions are represented, are binding on
all members of the Federation. Similarly, this Congress elects t h e
executive council of the Federation.
I n 1928 the W o r k e r s ' Federation of Chile included seven provincial unions a n d nine national industrial federations. T h e following
table gives some idea of the strength of the most important Federations
affiliated to the central organisation before it was recently dissolved :
Members
Building Federation
Iron and Steel Federation
Mining Federation, comprising three national
unions :
Saltpetre mines
Coal mines
Iron and copper mines
Various unions :
Clothing, foodstuffs, agricultural workers,
State employers and workers, transport
workers, etc
36,000
16,000
30,000
8,000
20,000
20,000 to 30,000
T h e W o r k e r s ' Federation of Chile had a total membership of
136,000. I t was by far the most representative organisation of the
workers in Chile.
T h e Confederation of Railwaymen, while not belonging to the
W o r k e r s ' Federation of Chile, followed a similar policy. I t was also
affiliated to the Red International.
I t was instituted in 1914,
reorganised at the Congress of San Bernardo in 1925 and in 1928
consisted of sixteen unions with 22,000 members.
I n addition to the W o r k e r s ' Federation, mention must be made
of the Industrial Workers of the World. T h i s was organised on the
model and under the influence of the association of the same n a m e
in N o r t h America and recruited its members chiefly from among
seamen and dockers. It was anarchist in tendency, rejecting political action and advocating the general strike, boycotting, sabotage
and the trade union label. I n 1928 it included seven unions w i t h
9,000 members.
A s already mentioned, the W o r k e r s ' Federation of Chile and the
Industrial Workers of the W o r l d were dissolved in 1928 for reasons of
public order and their leaders were deported. T h i s step will no doubt
benefit the Catholic trade unions, which at the Congress of 30 J u n e
1925 united to form the Confederation of White T r a d e Unions (Confederación de los sindicatos blancos).
T h i s organisation, whose main
192
FREEDOM OF ASSOCIATION
aims are mutual aid and social reform, has at present some
7,000 members.
In recent years the movement for trade association has als.o
advanced among private employees and to some extent in the liberal
professions. In 1924 the various unions of salaried employees,
particularly the Association of Commercial Employees, the Union of
Bank Employees and the Association of Commercial Travellers, united
to form the Union of Salaried Employees. This Union has branches
in all the larger towns and has a membership of 7,000.
Among the associations in the liberal professions reference may
be made to the Association of Elementary School Teachers, the
National Union of Intermediate School Teachers, the Medical Association of Valparaiso, the Engineers' Association of Chile and the
Central Association of Architects.
§ 2. — The Employers' Movement
The associations of employers which were instituted as a reply
to the workers' movement have been amalgamated since 1921 in the
Chile Labour Association (Association del Trabajo de Chile). This
association was recognised as a body corporate by the Decree of
20 December 1921 and includes industrial, commercial and agricultural employers and associations. Its aim is to defend the interests
of its members, to assist in the selection of staff, to intervene in
collective labour disputes, to represent the interests of the community
in dealings with the public authorities, etc.
In addition to the Chile Labour Association there is also an
association of traders in Valparaiso and an association of saltpetre
producers. The latter includes all employers and undertakings in the
saltpetre industry, which employs almost 40,000 workers.
CHAPTER II
PRESENT LEGAL POSITION OF TRADE ASSOCIATIONS
T h e development of the organised trade union movement has led
to the adoption of a large number of social laws, particularly since
1924 l . T h i s legislation, which freely granted most of the claims of
t h e trade unions, hoped by so doing to guide the workers (who, as
was seen in the historical section of this study, had to a great extent
been won over to revolutionary doctrines) towards a policy of social
co-operation. T h i s aim is particularly clear in the new trade union
legislation pf the same period. T h e Act of 8 September 1924 g r a n t s
to the trade unions, in exchange for a somewhat detailed system of
regulations, a certain number of privileges, in particular that of legal
recognition.
Originally this system, as is clear from the text of t h e Act, was
optional, and the trade unions were free to choose between the special
system set u p by the Act of 8 September 1924 and the system under
general law defined by Article 10, paragraph 5, of the new Constitution. T h i s Article states : " T h e inhabitants of the Republic of Chile
have the right of association without special authorisation in
conformity with the law. " T h i s guaranteed the trade unions t h e
right of existence b u t did not grant them any special r i g h t s . T h u s
by the privileges extended to them by the Act of 8 September 1924
the Government hoped that the trade unions would abandon t h e
independent organisations which were permitted but which h a d no
privileges, and would adopt the method of organisation suggested b y
the trade union legislation. A s has been seen, however, a large proportion of the working classes in Chile continued to belong to the
1
Acts of 8 September 1924 on the contract of employment, 4 August
1924 on night work in bakeries, 8 March 1925 on industrial accidents,
22 January 1926 on sickness and old age insurance, 21 April 1927 on
occupational diseases, 20 March 1925 on maternity work and 11 November
1925 on private employees.
Freedom of Association
15
194
FREEDOM OF ASSOCIATION
revolutionary organisations, which, in the opinion of the Government,
constitute a permanent menace to public order. Thus the Government was led to dissolve the most representative trade organisations
in Chile. In order to prevent the recurrence of a situation which was
considered dangerous for the established social order, a Decree of
31 December 1928 instituted a compulsory system of regulation for all
trade associations. Since that date the system under general law as
defined by the Constitution is really suspended. That this is the case
is clearly shown by section 12 of the Decree of 31 December 1928,
which states that all the existing trade associations, whether of
employers or workers, must within a period of sixty days conform to
the provisions of the new regulations.
The general provisions referred to in section 12 may be
summarised as follows.
The trade unions must be organisations for mutual collaboration
between the various factors of production. Consequently, all organisations likely to disturb public order or industrial discipline are
considered illegal. Persons wishing to unite into trade unions may
obtain the assistance of the competent social welfare offices. The
officials who give them their instructions or provide them with the
necessary facilities are entitled to be present when the trade union is
constituted.
As soon as a provisional executive committee is formed the trade
union must notify the social welfare office in writing and must publish
its foundation deed in three successive issues of the most widely
circulated newspaper or periodical in the district.
In order to prevent the trade union activities from flowing into
undesirable channels and to maintain order and discipline in industrial
undertakings, the trade unions will be subjected to supervision by the
administrative authorities and the social welfare offices. The authorities may in person or by some official appointed for this purpose take
the chair at meetings of trade unions, examine all documents and, in
short, supervise the various activities of the trade union.
The social welfare offices will keep registers and statistics of all
trade unions within their area.
The trade unions must send monthly, information to the competent
social welfare office regarding all changes in their organisation, and in
addition must present an annual record of their work, accompanied by
a copy of the balance sheet.
Finally, according to section n , membership of the trade unions
is prohibited for any person suspected by the authorities as dangerous
CHILE
!95
to public order. State workers and salaried employees, as well as those
employed by t h e municipalities and public services, are ipso facto
excluded from the right of association \
Subject to these general conditions the workers are free to
organise themselves either in the form of works unions or in the form
of trade unions. These two types of organisation will be studied
successively.
§ 1. — Works Unions
T h e institution of works unions, which is peculiar to Chilian
legislation, is modelled on the company unions of the United States.
I n both cases the actual aim is to replace trade unionism on t h e basis
of industries, which places in the foreground the defence of t h e
interests of the collectivity of workers as a social class, by a type
of trade unionism restricted to the undertaking and p u t t i n g in t h e
foreground the community of interests between the employers and
wage earners. I n both countries this community of interests finds
expression in a series of similar institutions : works agreements, conciliation of disputes, mutual benefit, and welfare work and profit
sharing, all of. which are intended to bind the wage earners to t h e
undertaking which employs them, and to give them an interest in its
prosperity.
But — and this is the feature which distinguishes the t w o institutions — the company union in the United States is formed freely
at the desire of the parties concerned, while in Chile it is subject to
strict regulation 3 . T h e rules governing the constitution, organisation
and activity of the works unions will be examined in the following
paragraphs.
CONSTITUTION OF T H E W O R K S UNIONS
T h e wage earners are entitled to choose between the trade union
and the works union. Once they have decided in favour of the latter
form of organisation, they are, ipso facto, obliged to refrain from
1
Cf. Administrative Regulations for trade union legislation,
Diario Oficial, 31 December 1928, Chapter I, " Trade Unions in General ".
3
Cf. Administrative Regulations for trade union legislation, Diario
Oficial, 31 December 1928, Chapter II, " W o r k s U n i o n s " , and Legislative Series, 1924, Chile 3 : Trade Unions Act, Chapter I, Works Unions.
196
FREEDOM OF ASSOCIATION
organising themselves on a trade union basis. A specified majority
(55 Per cent, of the workers employed in the undertaking) is sufficient
to decide the question, and this decision is binding for the minority.
Section 14 of the Decree of 31 December 1928 states that in all
undertakings employing more than twenty-five workers over eighteen
years of age of either sex, the works unions may be set up and must
be joined by all workers in the factory, with the exception of those
persons who are debarred from being members of a union (cf. above,
section 11), provided that 55 per cent, of the staff employed in the
undertaking desire such an institution.
In order to enjoy the rights and privileges granted by the Act, the
works unions must first obtain recognition from the Ministry of Social
Welfare. For this purpose, an application for approval of the rules
of the union must be sent by the provisional executive committee to
the Intendant or Governor of the Province. This application must be
accompanied by a copy of the foundation deed of the union, stating
the number and names of the members, and the names and positions
of the members of the executive, as well as three copies of the rules
for approval by the Government. Once these formalities have been
complied with, the Intendant or Governor of the Province requests
the chief of police to supply information with regard to all the
members of the union. This information, with a detailed report by the
Social Welfare Office, is transmitted to the Ministry of Social Welfare,
which, within a period of fifteen days, must approve or reject the
application.
As soon as the provisional executive is set up, the works unions
are also obliged to give written notice of this fact, to the Social Welfare
Office and to the head of the undertaking concerned. From this
moment the head of the undertaking may no longer dismiss the
members of the executive of the works unions, except for those reasons
which are- expressly mentioned in the Act and are considered valid
by the conciliation and arbitration boards.
INTERNAL ORGANISATION OF T H E WORKS UNIONS
The internal organisation of the works unions is also regulated
down to the smallest details. Each union shall act through an
executive consisting of five members, representing the various classes
of wage earners or salaried employees in the undertaking.
The members of the executive must satisfy the following conditions : be over twenty-one years of age, able to read and write, of
CHILE
I97
Chilian nationality, employed for at least six. months in the undertaking, resident for at least a year (except when special permission
is granted) in the town, province or district in which the union has
been set up ; they must never have been convicted of any crime or
misdemeanour, they must be enrolled in the proper identification
register, and they must have fulfilled their legal obligations for
compulsory military service.
The executive is elected by a cumulative vote at the general
meeting of the wage earners in the undertaking. The chairman of this
meeting is a representative of the administrative authority, with the
right to settle without appeal all disputes arising in connection with
the election.
The electors include not only wage-earning workers, but also
salaried employees whose salary is not more than 400 pesos a month.
Wage-earning or salaried employees who have completed three years'
continuous service in the undertaking are entitled to two votes and to
one additional vote for every additional two years thus served.
By the same method of plural voting the executive elects a
president and secretary-treasurer.
ACTIVITIES OF T H E W O R K S UNIONS
The works unions are constituted for the following purposes :
(1)
To conclude collective agreements with the undertaking,
and to enforce the rights possessed under these contracts by
wage-earning employees (cf. later, " Collective Agreements ", page 305).
( 2 ) To represent the wage-earning employees in the carrying
out of individual contracts of employment, if so requested
by the persons concerned.
(3) To represent the workers in collective disputes and
especially before conciliation and arbitration authorities, and
in all matters connected with the defence of the economic
interests of the workers, and the peaceful settlement of
differences of an industrial character which may arise
between members of the union and the employers (cf. later,
" Settlement of Collective Disputes ", page 206).
(4) To take action for the purposes of mutual benefit and cooperation, chosen by the members and prescribed in the
rules of the union.
In view of this last task with which the union is entrusted, the
io8
FREEDOM OF ASSOCIATION
legislation grants wide facilities for constituting its funds. According
to section 8, the assets of the union consist of the following items :
(i)
(2)
(3)
(4)
(5)
(6)
Contributions levied by the general meeting on its members
in conformity with the rules, to supply t h e needs of the
wage earning employees in the case of unexpected or arbitrary stoppage of work, sickness or old age, or for other
purposes of general interest ;
Voluntary contributions made to it by the undertaking, the
wage-earning employees or other persons, and bequests to it;
Income from the property of the union ;
T h e sum due to the works union from the distribution of the
moneys accumulated in the National Savings Bank, from
fines imposed on the employers by the Act relating to the
contract of employment ' ;
F i n e s imposed by t h e executive upon the wage-earning
employees, in virtue of its right to exercise disciplinary
powers under section 554 of the Civil Code ;
T h e moneys accruing to the union, in conformity with the
provisions of section 16 relating to profit sharing (cf. l a t e r ) .
On the other hand, the purposes to which these funds are p u t ,
their movements and their administration, are very strictly regulated.
According to section 33 of the Decree of 31 December 1928, the funds
of the unions must be devoted exclusively to organising credit, producing and distributive co-operative societies, setting u p industrial and
vocational schools, r e m u n e r a t i n g if necessary the members of the
executive, and u n d e r t a k i n g educational propaganda. I n no case must
the funds of the union be employed for purposes of resistance (strike
funds) or for any other activity likely to be prejudicial, either directly
or indirectly, to the interests of the undertaking to which the union
belongs.
T h e movements of the funds are subject to triple supervision by
the Social Welfare Office, the general meeting and each of the
members. All the moneys of the union must be deposited !as
they are received, in the branch of the National Savings Bank nearest
to the centre of the works carried on by the undertaking, and the
members of the executive are jointly and severally responsible for
compliance w i t h this requirement.
T h e administration of the funds of the union is in the hands of
1
§ 46.
Cf. Legislative
Series,
1924, Chile 2 : Contracts of Employment,
CHILE
I99
the executive. The members of the executive are jointly and severally liable for any minor faults in the exercise of their managing
boards, without prejudice to their criminal liability.
All investments of the funds must have the approval of the
union, and in the case of the investment of sums exceeding 10,000
pesos, the permission of the Social Welfare Office must also be
obtained.
The balance sheet is drawn up once in six months, and a copy
sent to the Ministry of SociaKWelfare.
The moneys of the union do not belong to the wage-earning
employees of which the union consists, nor to the undertaking in
which they work. They are the property of the union, and must be
employed solely for the purposes stated in the Act.
If the undertaking is closed, or if, as a result of changes of a
permanent nature such as a change in the work or restriction of
output, employment is given for six months to less than twenty
workers, the union in question must be wound up and the moneys
divided between the persons who are members of the union at the
time, in proportion to the contributions paid by them, while the
moneys set apart for mutual benefit purposes are transferred to an
institution specified in the regulations, which will carry on the
services connected therewith.
PROFIT SHARING
The works union, constituted as shown above, was entitled to
share in the profits of the undertaking according to section 2 of
Chapter 1 of the Trade Union Act. The Decree of 31 December 1928,
containing administrative regulations for the Act of 8 September 1924,
has made this right subject to additional conditions. According to
section 21 of this Decree, the Social Welfare Office, in agreement with
the administrative authorities, has henceforward the right to authorise
profit sharing and to supervise its application.
The Office will not grant such authorisation unless the union has
been recognised by the Ministry of Social Welfare, has been in
existence for one year, and has submitted to the Social Welfare
Office its last half-yearly balance sheet.
Those works unions which, in the opinion of the administrative
authorities of the province, have been guilty of "subversive activities",
are excluded from a share in the profits during the current year,
without prejudice to any other penalties which may be applicable
to the case.
zoo
FREEDOM OF ASSOCIATION
The following are the methods according to which profit sharing
is organised. Undertakings which are subject to the Act and which
show a net profit, must grant their workers a share in this profit.
" Net profits " mean the profits remaining after deduction from the
total receipts of the expenses of management and operation, salaries
and wages of all kinds, allowances for depreciation of machinery and
doubtful debts, and a sinking fund of adequate amount in view of
the nature of the business, together with interest at 8 per cent, on the
moneys invested in the undertaking in any form, and 2 per cent, for
unforeseen requirements of the business.
The sum granted to the workers as a share of the profits is
calculated as follows. Unless there are any provisions to the contrary
in the agreement and unless there are labour shares which are the
property of the union of salaried and wage-earning employees, an
annual sum equal to 6 per cent, of the salaries and wages paid during
the year to the salaried and wage-earning employees belonging to the
union must be paid to those concerned, provided always that this sum
can be paid out of the net profits, up to a maximum of 10 per cent.
thereof.
Half the share is paid to the union through the Social Welfare
Office for mutual benefit purposes. The executive must, within a
period of thirty days, submit to the Social Welfare Office a detailed
plan for the application of these funds.
The other half is divided by the undertaking smraig the wageearning and salaried employees who are members of the union and
who have been employed in the factory or undertaking for not less
than 220 days during the preceding year, in proportion to their
salary or wages and the days worked by them.
Any difference which may arise in connection with the administration of these rules is settled without further appeal by the
conciliation and arbitration boards (cf. later, " Settlement of Collective
Disputes " ) .
For the purpose of checking the balance sheet, the books of the
undertaking may be examined by an expert appointed by the conciliation and arbitration board; this official is sworn to secrecy. Failure
on the part of the employers to comply with these provisions is
punishable by a fine of from 100 to 2,000 pesos,' which is paid to
the works union.
These are the characteristic features of the system of works
unions, but it remains to be seen what exactly is their scope. From
1924, the date of their institution, until December 1928 when they
CHILE
201
were reorganised, it must be admitted that the results were slight '.
In fact, this system, which grants considerable privileges to the
wage earners at the price of very strict regulation, is still in its
experimental stage. Only the future can show whether this new
form of occupational organisation is likely to continue and to
develop.
§ 2. — Trade Unions '
Chapter II of the Act of 8 September 1924 recognises in addition
to the works union a second type of occupational organisation : the
trade union. As this part of the Act is in the main borrowed from
French legislation 3 , it will be sufficient here to point out the
differences.
According to the Act of 8 September 1924, trade unions are
taken to mean the associations constituted by salaried and wageearning employees in the same trade, industry or employment, or in
similar or related trades and industries or employments to deal
exclusively with the study, promotion and legitimate defence of the
general economic interests of their members.
The same Act permits associations of employers and of persons
engaged in various industries or trades and joint associations of
employers, persons engaged in industries and trade, and salaried
or wage-earning employees.
The officers of trade unions must be actually engaged in the
occupation for which the trade union was set up. Section 32 states
that every wage-earning employee who ceases for more than six
months to work in the industry on which the trade union is based
shall cease to belong to the trade union and shall not be qualified
to represent the union or to hold any executive post therein.
The trade union, like the works union, is considered to be
legally constituted only if it has previously obtained Government
recognition. In order to obtain such legal recognition the association must submit to the executive through the General Labour
1
The number of industrial and mining undertakings which had
adopted a system of profit sharing in 1928 is estimated at twelve, and the
total amount of profits distributed at approximately 1,000,000 pesos.
2
Cf. Legislative Series, 1924, Chile 2, Chapter II, a Trade" Unions ",
and also Administrative Regulations of 31 December 1928, Diario Oficial,
Chapter III : " Trade Unions ".
3
Cf. Freedom of Association, Vol. II, France.
202
FREEDOM OF ASSOCIATION
Directorate an application signed by not less than twenty members
and two copies of the rules by which the union is governed.
The said application must contain the following particulars :
(i)
(2)
(3)
head office ;
number and nationality of the members and the trade or
trades in which they are engaged ;
surname and forename, nationality, occupation and address
of each of the members who in any capacity direct or
manage the union or are responsible for representing it,
provided that the said members must be adult Chilians.
After consultation with the General Labour Directorate, the
executive grants or refuses the incorporation applied for. If it is
refused, the reason must be stated ; and refusal may not be based
on any other reason than that the rules of the association are contrary
to the Constitution, to the laws, or to morality or decency, or that
the association has contravened or failed to comply with any provisions of the Act.
The Government has the right to require the association making
the application to carry out the amendments in the rules or the
material alterations which are considered necessary conditions of the
granting of incorporation. For the whole period of their working the
trade unions are subject to the general regulations for supervision
contained in the Decree of 31 December TOP.S (cf. above page 194).
It may be added that the trade union funds must be devoted
exclusively to the purposes mentioned explicitly in the Act and in the
rules of the organisation.
Trade unions which do not conform to the provisions of the Act
or which have been instituted for purposes considered illegitimate are
dissolved. Compulsory dissolution is ordered by the administrative
authorities : (1) if the trade union has infringed the rules, or the
provisions of the Act or of the administrative regulations ; (2) if the
trade union does not comply with the decisions of the industrial
courts or the conciliation or arbitration boards set up by agreement
between the two parties to the dispute (cf. below, page 206) ;
(3) if the number of members falls below twenty, which is considered
as the minimum for the existence of an association. In case of irregularity in the utilisation of the moneys of the association, the incorporation of the association is cancelled by the Government and the
case referred to the ordinary courts for the purpose of the enforcement
of any liabilities which may exist.
CHILE
203
In addition to the loss of incorporation, which deprives the trade
union of its existence, the following penalties are provided for the
members of the executive or officers of the association. According
to section 44, these officials are personally responsible for contraventions of the Act by the association. Each of the said members
or officers is liable to a fine of not less than 50 and not more than
100 pesos for each contravention, and not less than 100 and not more
than 200 pesos in case of repetition of the offence. These fines are
fixed and imposed summarily by the competent judge for the department in question.
Fines collected in pursuance of these provisions are deposited in
the National Savings Bank to the account of the General Labour
Directorate which distributes them annually subject to the approval
of the President of the Republic, giving half to the general workers'
insurance funds and half to the trade unions of the Provinces from
which they were derived in proportion to the number of members
of these unions.
CHAPTER III
SCOPE AND LIMITS OF TRADE UNION ACTION
Legal recognition, subject to the conditions mentioned above,
not only grants incorporation to the trade union,, but also gives it the
right to organise social work, the privilege of concluding collective
agreements, the right to intervene in settling collective labour disputes, and, in general, the right to represent its members before
third parties and public administrative authorities.
§ 1. — Incorporation
In virtue of their incorporation which follows ipso facto from
their legal recognition, the trade unions may acquire property of
all kinds on any grounds. They may not, however, be entitled to
hold real property acquired by them except in the manner prescribed
in section 556 of the Civil Code.
T h p tradp unions may. in flddit'OT>;
bring an action at law whenever the general or common economic
interests of the association are involved. Moreover, the legal provisions in force with regard to corporations under ordinary law apply
to trade unions as soon as the latter ceases to carry out their purpose or
to conform to the legislation.
§ 2. — Social Work
In this sphere the trade unions may organise elementary or
vocational classes and schools, social museums, co-operative societies
of all kinds, stores and warehouses, employment agencies, and, in
general, all services connected with education and welfare work which
are compatible with the purposes of the association.
Mutual benefit, pension and insurance funds established by trade
unions are under the supervision of the General Labour Directorate in
respect of their organisation and working. The Directorate shall
ascertain whether the levies or contribution or premiums allocated
CHILE
205
exclusively to this purpose are sufficient for the discharge of the
liabilities towards the members participating.
I n case of irregularity in the utilisation of the moneys of t h e
association, the Government may cancel the incorporation of the association.
§ 3. — Collective Agreements
l
T h e most important privilege enjoyed by recognised trade
unions and works unions is that of concluding collective agreements.
Section 20 of the Administrative Regulations for the Act relating to
the contract of employment shows clearly that this privilege is
reserved exclusively to recognised unions. T h e article states : " Collective agreements are valid only when concluded on the workers'
side by a legally constituted trade union of workers. "
Section 24 of the Act of 8 September 1924 defines the collective
agreement as a written agreement concluded between an employer or
an association of employers and a trade association of workers (duly
recognised) for the purpose of fixing certain common labour and wage
conditions either in a particular undertaking or in a group of undertakings or industries. A copy of the collective agreement must be
deposited in the office of the competent factory inspector.
The
employers must, in addition, post u p the t e x t of the collective
agreement in various spots in the workrooms where it can be clearly
seen.
T h e provisions of a collective agreement become compulsory
clauses or an integral part of all individual contracts of employment
concluded during the period of operation of the collective agreement.
T h e collective agreement m u s t state explicitly t h e occupations,
crafts or industries to which it applies, and the date on which it
comes into force. I t is binding upon employers and workers w h o are
parties to it, and also on all employers and workers who belong to the
associations represented at the conclusion of t h e agreement, provided
that they have not given notice of their withdrawal from the association within a fortnight of t h e conclusion of the contract. If t h e y
1
Cf. Legislative Series, 1924, Chile 2 : Act of 8 September 1924 on
the contract of employment, sections 24 to 26, and the Administrative
Regulations for this Act dated 22 April 1925. Legislación Social de
America Latina, Vol. I, pp. 199 to 206, Chapter III ; " Del Contrato
Colectivo ".
206
FREEDOM OF ASSOCIATION
withdraw at a later date, they remain bound by the contract for the
whole period of its duration. The collective agreement is also
applicable to all persons who become members of the organisation at a
date subsequent to its conclusion.
The trade union is directly, jointly, and severally responsible for
the obligations undertaken by each of the workers belonging to it,
and in turn it has the necessary powers for exercising the rights
belonging to these workers. The funds of the union, even during the
year following its dissolution, serve as a guarantee fund, unless there
is any clause in the collective agreement which expressly relieves the
union of all responsibility. The dissolution of the union in no way
affects the rights or obligations of its members resulting from the
collective agreement. All disputes concerning the interpretation or
application of collective agreements must be brought before the conciliation and arbitration boards (cf. below). Infringements of the
provisions of the Act or of the Administrative Regulations render the
offender liable to a fine of not less than 50 and not more than 500
pesos in the case of employers, and not less than 50 or not more than
100 pesos in the case of workers.
§ 4. — The Settlement of Labour Disputes *
The settlement of collective labour disputes in Chile is based on
the trade union legislation. The works unions in their own sphere
and the trade unions in their sphere have the duty of representing the
workers in collective disputes. This duality in the trade union organisation corresponds with a certain dual organisation of conciliation
and arbitration.
In the first place, there are the workers' delegations in each
undertaking which must co-operate with the representatives of the
employer to prevent any threatened disputes in a given undertaking.
In the second place, there are permanent conciliation boards for the
purpose of arriving at an amicable settlement of any disputes affecting
several undertakings or industries.
WORKERS'
DELEGATIONS
The system for dealing with collective labour disputes is based
on the idea of compulsory recourse to conciliation. In every
1
Cf. Legislative Series, 1924, Chile 5. Act of 8 September 1924 on
arbitration and conciliation, and the Regulations concerning the organisation and working of conciliation and arbitration boards (Diario Oficial,
No. 303, 15 May 1925).
CHILE
207
undertaking employing more than ten workers, whether a mine,
quarry, nitrate undertaking, factory, workshop, or a commercial
establishment, no stoppage of work may occur either on the initiative
of the employers or on the initiative of the workers until the resources
of conciliation proceedings have been exhausted. The refusal of either
of the parties to submit a difference to the permanent conciliation
board entails a fine amounting in the case of an employer to not less
than 500 or more than 1,000 pesos, and in the case of the workers
to not less than 50 or more than 500 pesos, which is enforced against
the union to which the worker belongs. The winding up of the trade
union may also be ordered.
When a difference liable to give rise to a collective dispute
affecting all or part of the staff occurs in an undertaking employing
more than ten workers, or when such a dispute has broken out, the
workers concerned must appoint a delegation to approach the head
of the establishment or his representative with a view to bringing
about a settlement of the difference in question.
The members of the workers' delegations must be over twenty-one
years of age, have been employed for the last six months in the
undertaking, and never have been sentenced for a crime, a misdemeanour or drunkenness.
Preference is given in making the appointments to depositors in
the savings bank or owners of real property. The number of votes
obtained by these persons is automatically doubled. Although it is
not laid down in the Act, it is generally the leaders of the works
unions who are appointed to the workers' delegations.
The number of delegates may not exceed five, but in
establishments employing more than 500 workers belonging to
different trades, each trade may appoint one additional delegate.
While the workers are obliged under every circumstance to
appoint a workers' delegation, the employer, on his side, is bound
to receive the workers' delegation either in person or through his
representative within twenty-four hours after a request to this effect
has been made by the workers. The employer or his representative
may not delay his reply by more than five days unless a longer period
is fixed by agreement with the delegates. An employer or manager
who, without sufficient reason, fails to receive the workers' delegates
is liable to a fine of not less than 500 and not more than 5,000 pesos.
Similarly, any employer who puts obstacles in the way of the
delegates in carrying out their duties is liable to a fine of not less
than 50 and not more than 1,000 pesos. An important provision is to
208
FREEDOM OF ASSOCIATION
the effect that, from the outbreak of a dispute onwards, it is not lawful
to suspend any worker from employment unless he commits an
offence against the property of the undertaking or incites the general
public to refrain from using the products of the undertaking. The
only exception to this rule is in the case of a strike or lock-out in an
undertaking or service, the stoppage of which directly imperils human
life, public health or the economic and social life of the country.
In such a case the Government may take steps to replace the strikers
in the manner necessitated by public interests, previously issuing a
special Decree stating the grounds for such measures. In this case,
the substitute workers may not be engaged on worse terms than those
laid down by the award of the permanent conciliation board.
PERMANENT CONCILIATION BOARDS
The permanent conciliation boards are not only conciliators, but
also act as judges in a certain number of cases connected with the
provisions of the Trade Union Acts and the Acts on labour contracts.
The conciliation boards, to the number of ten, are set up by the
President of the Republic as circumstances require. Their jurisdiction
extends to all industries within the administrative area assigned to
them in the Decree by which they are instituted. Each board
consists of six members, three of whom are elected by the employers
and three by the workers, with six substitutes (three employers and
three workers) appointed in the same way.
The election of the delegates of the employers is undertaken by all
the employers representing not less than 50 per cent, of the industries
and undertakings concerned, and as regards the workers, by at least
50 per cent, of the total workers employed in the various industries
or undertakings. If a second meeting is required, the quorum is
reduced to 40 per cent, and in a third meeting the election is made
by a simple majority of those present.
The chairman of the conciliation board is the factory inspector,
who does not possess a vote, or failing him, an employers' delegate
and a workers' delegate on the board alternately.
The boards meet for ordinary sessions on several days each week,
and for an extraordinary session whenever a strike or lock-out occurs
in their respective areas.
The competence of the boards is a double one. In the first place,
they take cognisance as conciliators of any collective labour disputes
which arise between employers and workers in undertakings within
CHILE
209
their jurisdiction if these disputes have not been settled by the procedure of workers' delegations. In the second place, as judges and
without appeal, they take cognisance of disputes to which the administration of the Acts on conciliation and arbitration, trade unions and
contracts of employment may give rise. In this latter capacity, the
permanent board appoints two of its members in rotation for a
week at a time, one being an employers' delegate and the other a
workers' delegate. The board may appeal to the competent judges
of the Department to enforce their decisions.
Conciliation
Proceedings
Since conciliation proceedings are compulsory in collective labour
disputes they are begun automatically within forty-eight hours of the
outbreak of the dispute ; the conciliation board requires both parties
to submit the case to it under penalty of certain fines (cf. above).
In the first instance the board hears the employers and the
workers separately. Subsequently, after the necessary discussion, it
undertakes conciliation, and for this purpose it may hold sessions at
which both parties are represented. When an agreement is arrived
at it must be recorded in writing and a copy of the document forwarded to the Labour Directorate. If an agreement has been arrived
at and one of the parties refuses to carry it out, the chairman of
the permanent board must at the request of any person concerned, or
at the request of the Labour Office, order the publication of a report
stating the causes of the dispute, giving an extract of the negotiations
by which an agreement was arrived at, and containing the full text
of the agreement concluded by the parties. This report is published
in the official journal and is also brought to the knowledge of those
concerned by insertion in local newspapers and by posters exhibited
in suitable places.
If the parties fail to resort immediately to arbitration when the
methods suggested by the board to conciliate them have been tried in
vain, and in any case when a strike or lock-out occurs, the board
must draw up a report on the particulars of the case, including an
extract of the discussions and a statement of the causes of the dispute
and the difficulties involved, and of the duties which in the opinion
of the board are incumbent upon each of the parties in respect of the
various points in dispute.
These provisions show that during the conciliation phase,
whether the question at issue is a difference of principle between the
Freedom of Association
_
,.
210
FREEDOM OF ASSOCIATION
parties or a refusal to accept an agreement which has been concluded,
no sanctions are imposed except those of a moral character resulting
from the publication of the discussions.
Arbitration
Proceedings
When conciliation has failed, the parties may by agreement
submit the dispute to arbitration. In case of failure of the parties to
do this, recourse to arbitration is proposed by the chairman of the
permanent conciliation board. The arbitration court, however,
cannot take cognisance of the dispute until work has been resumed,
if it has been suspended by a strike or lock-out.
The arbitration court consists of one or three arbitrators
appointed by agreement between the parties, or, in case of failure
by one of the parties to do this, by the Ministry of the Interior.
The arbitrators may make any investigations which they consider
desirable to elucidate the points in dispute, and make the necessary
inspections of the workplaces ; they may likewise procure the
assistance of a competent labour inspection office or of experts on
the various matters submitted to them, provided that they shall in
any case be assisted by the members of the conciliation board who
took cognisance of the dispute in question. The arbitration award
is adopted by a majority vote within thirty days ; this period may
be extended by the court by not more than a further thirty days. The
arbitration award is binding on both parties under pain of a fine
for at least six months from the date of its issue. An employer who
refuses to accept the arbitration award is liable to a fine of not less
than ioo and not more than 1,000 pesos, and a worker to a fine of not
less than 50 and not more than 500 pesos. Moreover, during the
period in which the award is in force, the employer may not engage
any workers under conditions inferior to those laid down by the
award. If the workers fail to accept the award, those who resist may
be dismissed immediately from their employment without being
entitled to compensation. A trade union which acts thus is wound up.
REGULATIONS CONCERNING STRIKES AND LOCK-OUTS
Even if all the methods prescribed for the settlement of disputes
have failed, the trade union is not entitled to declare a strike unless :
(1)
the term of notice for the termination of a collective
agreement has expired ;
CHILE
(2)
21 I
the strike has been agreed upon by an absolute majority
of the persons voting at a ballot in which at least two-thirds
of the members of the union took part, and
(3) a delegate or a representative appointed by the permanent
conciliation board within whose area the case falls has
ascertained that the formalities and requirements of the
Conciliation and Arbitration Act have been complied with.
For this purpose the executive of the union must notify the
competent permanent conciliation board not less than two days in
advance of the taking of the ballot. Failure to comply with any of
these formalities nullifies the declaration of the strike.
The same provisions apply to employers' associations when
declaring a lock-out.
When the legal conditions have been fulfilled and the principle
of the strike is voted, the workers must appoint a strike committee
of five members elected from among persons over twenty-one years of
age who are able to read and write, and who have been resident in
the locality for at least one year.
The stoppage of work is binding not only on all members of the
union, but also on all wage-earners in the undertaking or undertakings
concerned.
The stoppage of work can be ordered only for a particular union
in respect of the work covered by the union, and consequently a
partial strike in special branches may not be declared by trade unions,
or their federations.
The leaving of work without the calling of a strike renders the
union liable for the damages and torts committed, unless the union
has taken disciplinary measures to prevent them.
In addition to the civil offence constituted by a strike, the
Conciliation and Arbitration Act provides for and suppresses offences
against the liberty to work.
The following actions are considered as offences against the
liberty to work :
(1) the exercise upon the worker by the employer or the
employers' association or the union or federation to which
the worker belongs of pressure by means of threats ;
(2) any action which prevents workers performing work in
case of a stoppage of work which has not been lawfully
ordered ;
(3) any actual or attempted destruction of the means of work
or damage to them.
212
•
FREEDOM OF ASSOCIATION
Offences against the liberty to work entail imprisonment of not
less than one a n d not more t h a n sixty days, without prejudice to
heavier penalties which m a y be entailed under the law. T h e penalty
of imprisonment cannot be commuted for a fine 1.
1
According to statistics for 1928, there were twenty-two disputes,
but none developed into a strike since all were settled by the labour
tribunals.
CONCLUSION
Up to a very recent period the trade union movement in Chile
developed in complete liberty under cover of the constitutional
guarantee of the right of association. It originated about the
beginning of the century and was consolidated in 1909 when the first
central trade union, the Workers' Federation of Chile, was formed.
In the post-war period its development has been vigorous.
The progress of the trade union movement led to the legal
recognition of trade unions. The Act of 8 September 1924 recognised
not only the traditional form of trade unions, but also a type of
organisation which is peculiar to Chilian legislation : the works'
union.
Originally this legal system was optional. It was hoped that the
privileges granted by the Act of 8 September 1924, and especially the
right to profit-sharing, would lead the trade unions, a majority of
which had been won over to revolutionary doctrine, to abandon the
independent unions and adopt the type of organisation proposed in the
new legislation. This hope was disappointed, and the Government
felt itself compelled in 1928 to dissolve the revolutionary organisations,
the Workers' Federation of Chile and the International Workers of
the World, and subsequently to bring all trade unions under a
compulsory system.
According to the Decree of 31 December 1928 which instituted
this system, the trade unions should be organs of mutual collaboration between the various factors of production. Organisations
likely to disturb public order or factory discipline are considered
illegal, and membership of trade unions is forbidden to all persons
suspected by the administrative authorities as being dangerous to
public order.
Finally, in order to prevent the trade unions' activities from
flowing into undesirable channels and to maintain order and discipline
in industrial undertakings, the trade unions are subjected to supervision by the administrative authorities during their formation,
working and the whole of their activity.
214
FREEDOM OF ASSOCIATION
In compensation for these strict regulations, the recognised trade
unions enjoy a certain number of privileges : incorporation, power
to conclude collective agreements and the right to intervene in the
settlement of collective disputes.
The right to declare strikes and lock-outs is only conditionally
recognised. In fact, conciliation must be resorted to before work
is stopped under pain of a fine, and if necessary under pain of dissolution of the trade unions concerned. Even when the conciliation
proceedings have broken down, a strike can be decided upon only by a
secret ballot and a majority vote of those concerned. Once these
formalities have been complied with, however, the strike is compulsory
for all members of the occupation concerned.
Trade union experience in Chile, which can be summed up in
the phrase : social collaboration on the basis of legal and administrative supervision, is on the whole too recent for any prediction
to be made at present as to the effects which it may have, either on
the development of trade unionism, or on the social movement as
a whole.
BIBLIOGRAPHY
I. — OFFICIAL PUBLICATIONS
Act No. 4057 of 8 September 1924 on works' unions and trade unions ;
Legislative Series, 1924, Chile 3.
Administrative Decree for the Act of 8 September 1924, dated 10 March
1928. Diario Oficial, No. 15021, p. 1180.
Administrative Decree of 31 December 1928. Diario Oficial of 31
December 1928.
Act No. 4056 of 8 September 1924 concerning disputes between capital
and labour. Legislative Series, 1924, Chile 5.
Regulations concerning the organisation and working of conciliation
and arbitration boards. Diario Oficial, No. 303, 15 May 1925.
Act No. 4053 of 8 September 1924 concerning the contract of
employment : Sections 24 to 26 concerning collective agreements. Legislative Series, 1924, Chile 2.
Administrative Regulations for the Act on the contract of employment, dated 22 April 1925.
INTERNATIONAL LABOUR OFFICE :
ción social de America Latina.
" Del contrato colectivo ".
Legisla-
Volume I, pp. 199 to 206, Chapter III :
IL — O T H E R W O R K S AND STUDIES
Constitución Politica de Chile 1833.
Constitución Politica de Chile 1925.
Proyecto de Código del Trabajo y de Prevision Social, 1921.
PARRAO, Oscar.
Historia de la mutualidad
en Chile. Santiago, 1923.
SILVA, Gustavo. La Cuestión Social y la Legislación Social en Chile.
Santiago, n.d.
TRONCOSO, Poblete. La Organización
Estudios sociales. Santiago, 1926.
Labour Organisations
in Chile.
sindical
en Chile
Washington, 1928.
y
otros
COLOMBIA
CHAPTER I
THE TRADE UNION MOVEMENT
The first attempts at organisation on a national basis date only
from 1923, when the Central Association of Workers (centro obrero
profesional) convened a Workers' Congress at Bogota, at which it
was decided to set up a central trade union organisation. Such a
body was actually founded with the title " Central Workers' Union
of Colombia " at the Second National Congress, held in the capital
on 20 July 1925.
From the outset, however, this new organisation was divided
by conflicting opinions : during the early years of its existence, the
moderates, that is, the Liberal Party, were strongest ; the other
group was Radical, and, in the sphere of politics, was represented
by the Revolutionary Socialist Party. This difference of opinion is
reflected in the sphere of international relations. A part of the
organised workers' movement, the Workers' Central Trade Union of
"Colombia, belongs to the Pan-American Federation of Labour, while
the other section, the National Federation of Workers and Peasants,
is affiliated to the General Confederation of Labour of the countries
of Latin America.
The membership of the various organisations amounts to a total
of approximately 11,000.
CHAPTER II
„
LEGAL POSITION OF TRADE ASSOCIATIONS
§ I. — Freedom to Combine for Trade Purposes
Certain provisions concerning the right to combine for trade
purposes, which are at present not distinct from ordinary law, are
contained in Book II, Chapter VII, of the Draft Labour Code which
has been before the Congress since 1925. According to this Draft
Code, trade unions or trade associations may be granted incorporation
and certain other privileges if they conform to the regulations
summarised below.
The sole aim of the trade unions must be : (1) the study, defence
and development, by any legal means, of the economic, social,
industrial, commercial and agricultural interests of their members ;
(2) sickness, invalidity and unemployment insurance for their
members ; (3) the representation of trade union interests in dealings
with the various public authorities.
The trade unions are forbidden, on pain of dissolution, to interfere in politics or to undertake any activities other than those
connected with their trade.
The rules of trade associations must be submitted to the Ministry
of Industry for approval. Refusal to grant approval can be based
only on the following reasons : violation of the law, offences against
public order or contra bonos mores, inadequate guarantee of the
rights of the members.
Regally recognised trade unions are entitled to conclude collective
agreements, to bring any action in law concerning the exercise of
their trade without pleading that they have received.a special mandate
to do so, and to defend the interests of their members in dealing
with political, judicial and administrative authorities.
These are the chief provisions of the Draft Code, which will
doubtless form the basis of future legislation on trade unions. While
2l8
FREEDOM OF ASSOCIATION
the problem of the recognition of trade unions is still merely in this
stage, the right to strike, on the other hand, has been regulated by two
Acts : the Act of 19 November 1919 concerning strikes, and the
Act of 4 October 1920 concerning conciliation and arbitration ; these
two are complementary, and will therefore be examined together.
§ 2. — The Right to Strike and the Settlement
of Labour Disputes
According to the Act of 19 November 1919, a strike is illegal
unless : (1) its object is to improve working conditions or maintain
the existing conditions when they are in danger of being reduced ;
(2) the stoppage of work is carried out and continued by peaceful
means, and (3) (a condition added by the Act of 4 October 1920)
the conciliation procedure has been exhausted before work is
suspended.
The procedure for settling disputes consists of three stages :
direct settlement, conciliation, and arbitration.
DIRECT SETTLEMENT
OF
DISPUTES
In the case of a dispute likely to lead to a strike, the workers
or wage earners concerned must appoint a delegation of three persons
to submit their claims directly to the head of the undertaking. The
right to belong to such a delegation is open only to Colombians who
are of age and have been employed for at least six months in the
undertakings affected by the strike ; in practice, this usually means
that trade union officials are excluded from the negotiations. The
head of the undertaking affected must receive this delegation of his
workers within twenty-four hours of being requested to do so.
Unless the parties agree to the contrary, his reply may not be
postponed for more than five days under penalty of a fine of between
10 and 100 dollars. If the parties arrive at an agreement, a statement
to this effect will be drawn up in writing and a copy transmitted
to the political authorities. The conditions arrived at by this
agreement will be binding for the period mentioned therein.
CONCILIATION
Any dispute not settled by direct agreement is compulsorily
subject to conciliation either by a third person appointed by the
COLOMBIA
219
two parties or by two persons each appointed by one of the parties.
Conciliators, who must be of Colombian nationality, acquainted with
the affairs of the undertaking and over twenty-one years of age,
must begin work within twenty-four hours. They immediately
convene representatives of the parties and invite them to produce
proof of their arguments.
The representatives of the parties are bound to comply with
every request made by the Conciliation Board, and provide all
information asked for. Such information is considered confidential,
and the conciliators may not make any use of it unless authorised
by the parties concerned.
The conciliators must endeavour to arrive at a settlement within
a period of forty-eight hours unless an extension is agreed to by
both parties.
In principle, the decisions of the conciliators are not binding,
but if an agreement is arrived at between the parties, a statement to
this effect is drawn up in writing and has the value of a collective
agreement.
In case of failure to arrive at a settlement, the conciliation board
shall notify those concerned and shall state whether the dispute
can be passed for arbitration.
ARBITRATION
Arbitration is optional except in those cases which will be
mentioned later. A dispute cannot be laid before the arbitration
board unless both parties, employers and workers, agree to do so.
In this case, each of them must appoint an arbitrator, who may be
one of the former conciliators. A third arbitrator is appointed jointly
by the two parties, or, failing an agreement, by the most important
political official of the district.
The arbitration board is entitled to summon the parties and
undertake any investigations, including a visit to the workplaces ;
it cannot continue its deliberations unless every member is present,
and it must give its decisions within a period of eight days. This
decision is immediately brought to the notice of those concerned.
Strikes and lock-outs are prohibited during the whole period of
the arbitration proceedings.
Arbitration is, however, compulsory in all cases where the
stoppage of work affects public health or safety, the economic and
220
FREEDOM OF ASSOCIATION
social life of the community, etc. This is the case, for example,
when a strike occurs in the transport service : railways, tramways,
river and sea transport ; in the water, gas and electricity services ;
in the health and hospital services ; or in mines.
In the event of a strike in one of these undertakings, the
Government may itself take over the working of the undertaking in
agreement with the management.
The enforcement of the procedure for the settlement of disputes
is guaranteed by a complete system of penal sanctions.
Any individual hindering the conciliators or arbitrators in the
exercise of their duties or any person summoned by the conciliation
and arbitration boards, and failing, without valid excuse, to comply
with the summons, shall be liable to a fine of between io and ioo
dollars, or to equivalent imprisonment at the rate of one day per
2 dollars.
Any arbitrator who, without valid excuse, fails to attend all the
meetings for hearing witnesses or passing judgment, is liable to a
fine of from ioo to 500 dollars.
Whosoever, in cases where arbitration is compulsory, publicly
incites workers to strike is Hable to a fine of from 10 to 100 dollars.
The same penalty is imposed on anyone who, in defiance of the
provisions of this Act or in defiance of the decision of the arbitrators,
incites others to strike or, by word or action, injures the members
of the arbitration court while lliey arc exercising their functions.
The " Alcade " is competent to impose the fines mentioned by this
Act after a summary hearing. An appeal may be lodged with the
superior officials.
L I M I T S TO T H E R I G H T TO STRIKE AND TO DECLARE
A LOCK-OUT
Strikes and lock-outs, if they are to be legal, must comply not
only with the conditions mentioned above, but also with a series
of provisions contained in the Act of 19 November 1919, which aim
at protecting the liberty to work on the one hand, and public order
on the other.
According to section 4 of this Act, the political authorities must
undertake the protection of persons and property. They shall
prevent, and, if necessary, dissolve, any illegal meeting. They shall
also protect workers who are not on strike, and all those engaged
in the place of strikers. Those responsible for any acts not connected
COLOMBIA
221
with the strike and capable of being interpreted as aggression or
threats against persons or property, or guilty of using violence to
prevent the free exercise of trade or employment, shall be arrested
and handed over to the competent authorities to be dealt with.
Release shall be refused, until the strike has terminated, to all
persons committing an offence under this section, even if, according
to ordinary law, they are entitled to be set free.
Foreigners taking part in meetings or assemblies under pretext
or on the occasion of a strike shall be deported, without prejudice
to any other sanctions which may apply.
The heads of undertakings, for their part, may not declare a
lock-out, except in case of vis major, unless they have given their
workers at least one month's notice. In default of such notice, the
head of the undertaking must pay one month's wages or salary to
the workers concerned.
BIBLIOGRAPHY
INTERNATIONAL LABOUR OFFICE :
Latina.
Legislación
social
de
América
Vol. II (Colombia). Geneva, 1929.
Act No. 78 of 19 Nov. 1919. Sobre huelgas, p . 14. (Cf. Compilación de leyes obreras, 1905-1907, pp. 27-32. Leyes vigentes, 1925,
p. 788.)
Act No. 21 of 4 Oct. 1920. Sobre conciliación y arbitraje en los
conflictos colectrvos del trabajo, p . 22. (Cf. Compilación de leyes
obreras, 1905-1927, pp. 32-39.
Proyecto de Código del Trabajo, Cámara de los Representantes,
1925, Libro II, Capítulo VII : " De las asociaciones obreras y de los
sindicatos profesionales. "
PERU
CHAPTER I
THE TRADE UNION MOVEMENT
The most characteristic fact about the trade union movement
in Peru is the extensive organisation of native agricultural workers.
In the pre-war years the Peasant Federation of the Incas stated that it
had nearly a million members. Although it is much weaker to-day, it
still represents a force of great importance.
As in all the countries of Latin America, the movement among
industrial workers is very divided. Among the most important
central organisations mention may be made of the International
Federation of Workers of Peru, affiliated to the Pan-American Federation of Labour, the District Workers' Federation of Peru, which
is syndicalist in opinion, and the Committee of the General
Confederation of Labour of Peru, which belongs to the General Confederation of Labour of the countries of Latin America. The total
membership of the various trade union organisations in Peru at
present does not exceed 25,000.
CHAPTER II
LEGAL POSITION OF TRADE UNIONS
§ 1. — Freedom to Combine for Trade Purposes
Chapter IV, Article 37, of the Constitution of Peru of 19 June
1920, which is entirely devoted to social guarantees, recognises the
right to combine for trade purposes. It adds : " The nature of this
right and the consequences of its exercise shall be determined by a
special Act. "
The Decree of 6 November 1920, organising the Labour Service,
which was created by Decree of 30 September 1919 and is attached
to the Ministry of Public Works (Fomento), instructed this body :
(1) to guarantee and encourage the normal development of workers'
associations ; (2) to keep a register of officially recognised trade
unions ; (3) to grant official recognition to these associations provided
that their objects áiid rules conform to the conditions to be laid
down by Acts or Decrees and that they are not contrary to public
order or contra bonos mores.
In accordance with these two texts providing for regulating the
right to combine, an Act was promulgated on 29 January 1921
recognising trade associations, provided their main object was to
serve the interests of the community and that they were not dependent
on State subsidies. This Act grants incorporation to trade unions
and then confers on them the right of owning and acquiring property
and bringing an action at law within limits compatible with their
aims, provided that their rules have previously received the approval
of the Government.
From these provisions it follows that only those associations
which are considered to be in the interests of the community and
whose rules have received Government sanction may enjoy recognition
and protection by the public authorities and be granted incorporation.
PERU
225
§ 2. — The Right to Strike and the Settlement
of Labour Disputes
T H E SETTLEMENT OF DISPUTES
The settlement of disputes, like the right of combining for trade
purposes, is based on the Constitution. Article 48 states : " Labour
disputes shall be subject to compulsory arbitration. " It should be
noted, however, that in the Peruvian system for the settlement of
disputes, compulsory arbitration means that disputes must be
submitted to arbitration and not that the decision of the arbitration
courts is binding, unless subject to certain provisions which will be
analysed later.
The Labour Service, which, as has been seen, plays a certain
part in organising trade associations, has also been entrusted with
the settlement of disputes by the Decree of 6 March 1920, amended
by the Resolution of 27 March 1920, and the Decrees of 9 April 1920,
14 September 1920 and 18 June 1921.
As in Colombia, the settlement of disputes passes through three
phases : the conciliation board, the arbitrator and the arbitration
court ; in each case the proceedings are compulsory. The following
is a brief outline of the conciliation and arbitration procedure.
The Conciliation Board
Every workers' association or group of workers forming a party
to an agreement and submitting any claims to the head of an undertaking or a group of undertakings, must notify the Labour Service of
this fact and must include a copy of their claims. The Labour Service shall then institute within forty-eight hours a conciliation board
consisting of two workers' representatives and two employers' representatives under the chairmanship of the chief of the Labour Service
or his substitute, who shall not have a vote.
The heads of undertakings are obliged, on pain of a fine of between two and ten pounds, or twenty pounds in case of a second
offence, to provide the Labour Service with any information which
it requests. If an agreement cannot be arrived at by a majority
the dispute is submitted to an arbitrator.
The
Arbitrator
The arbitrator is appointed directly by the parties.
Freedom of Association
If they
r;
326
FREEDOM OF ASSOCIATION
are unable to agree, he will be appointed, in the case of Lima, by
the Ministry of the Interior, and in the provinces by the prefects.
The arbitrator must give his decision within four days. If he fails
to achieve conciliation between the parties or if the dispute is of such
a nature or takes such a form that any attempt at conciliation is
doomed to failure, then the arbitration court may take direct cognisance of the. dispute. This conciliation procedure in two phases,
the conciliation board and the arbitrator (who is, after all, really a
conciliator), was intended as a compulsory preliminary to arbitration,
but it presupposes the voluntary and active collaboration of the
parties concerned. The mere abstention of one party was sufficient
to impede the whole procedure. Experience soon showed that the
system was ineffective, and a Resolution adopted by the President
of the Republic on 27 March, 1920, modified the Decree of 6 March
1920 by providing that the failure of one of the parties to appear
should no longer prevent the arbitration proceedings from working.
From this date onwards, if either of the parties to the dispute or
both parties together placed obstacles in the way of conciliation, the
dispute could be directly submitted to the arbitration court.
The Arbitration
Court
This court consists of two arbitrators, appointed one by the
workers and one by the employers, and a third arbitrator, who shall
be a magistrate, appointed by the Supreme Court in the District of
Lima and in other districts by the high courts.
If the parties refuse to appoint their arbitrators, the Ministry of
Public Works (Fomento) shall do so and the parties shall be liable
to a fine of from five to twenty pounds or imprisonment for from
ten to thirty days.
The court, which must be set up within twenty-four hours,
summons the parties to appear and endeavours to arrive at a compromise. If it fails it must give its decision within a period of eight
days, on the basis of law if possible, or, if not, according to equity.
During the whole period of the conciliation and arbitration
proceedings, the parties and their representatives must abstain from
any act calculated to injure the interests of the other party, on
penalty of a fine of from five to twenty pounds, or, if the offence
is repeated, from twenty to one hundred pounds.
The observance of the decisions of the arbitration court shall,
PERU
2?7
however, be binding only in certain clearly defined cases : (i) if the
parties agree in advance to accept the decision ; (2) if the dispute
affects the public services ; (3) if the Government decides, on account
of the duration of the dispute and the impossibility of terminating
it by a compromise, that the decision shall be binding ; (4) if the
decision is made binding by an Act, Decree or Resolution of the
President of the Republic.
In connection with this last possibility it should be noted that,
according to a Decree of 4 March 1920, in disputes arising between
landowners (hacendados) and agricultural workers
(yanacones),
arbitration is compulsory and the decision is binding. All those who
contravene the provisions concerning the settlement of disputes are
liable to imprisonment of from six to thirty days or a fine of from
five to twenty pounds, which may be increased in proportion to the
injury caused by such non-observance.
T H E R I G H T TO STRIKE
It follows from this analysis that the right to strike is abolished
in all cases in which the observance of the arbitration decision is
binding, and is suspended during conciliation and arbitration
proceedings.
The exercise of the right to strike is further regulated by the
Decree of 12 May 1920 concerning strikes. Section 1 states that
only peaceful stoppages of work, unaccompanied by any act of
constraint or violence, shall be considered to be legal. Disorderly
meetings convened under pretext of a strike but not of a legal nature
shall be immediately dissolved and their promoters prosecuted for
sedition under sections 133, 138 and 141 of the Penal Code. Section 2
prescribes arrest for all individuals, whether strikers or not, who
intervene in a strike in order to provoke disorder. Strikers who are
guilty of acts not connected with the stoppage of work and calculated
to endanger the freedom of the individual or property, or of using
violence to prevent the continuation of work in factories or undertakings, shall also be arrested and handed over to the courts.
The authorities must grant complete protection to persons and
property and also to workers who are not on strike or who are
engaged in the place of strikers.
For certain categories of wage earners, the right to strike is subject
to special restrictions. Thus, employees in transport undertakings
228
FREEDOM OF ASSOCIATION
may not declare a strike until they have completed their journey,
on pain of being compelled to make good any damage caused, not
only to the undertakings but also to third parties. Similarly,
employees and workers in gas undertakings, railways, electric tramways and the postal, telegraph and telephone services, must give
three days' notice of their intention to strike. Public officials are
categorically forbidden to strike. Public employees taking concerted
action under pretext of a strike to abandon work shall be summarily
dismissed and deprived of all their rights. Aliens taking part in
meetings or assemblies under pretext or on the occasion of a strike,
and leaders or ringleaders inciting to the declaration, extension, or
continuation of a strike, shall be immediately deported.
BIBLIOGRAPHY
INTERNATIONAL
Latina.
LABOUR OFFICE :
Vol. II (Peru).
Legislación
social
de
América
Geneva, 1929.
Constitución de la República del Perú, de 27 de diciembre de
1919, promulgada el 19 de enero de 1920. (Título IV : Garantías
sociales.) (La Constitución del Perú, por OLAECHEA, Lima, 1920.)
Reglamentación de las huelgas (Decreto supremo de 27 de enero
de 1913).
Decreto supremo de 27 enero 1913, que reglamenta las huelgas
(Legislación del Trabajo y Previsión Social, p . 46).
Decreto supremo de 12 mayo 1920 : reglamenta las atribuciones
de las Autoridades en caso de huelga. (Legislación del Trabajo y
Previsión Social, p . 50).
Resolución suprema de 27 de marzo de 1920 : amplía los artículos
7o, 8o y 9o del Decreto supremo de 6 de marzo 1920, reglamentario
de la Dirección del Trabajo. Por ella se establece la procedencia del
juzgamiento arbitral sin el trámite previo de la conciliación. (Legislación del Trabajo y Previsión Social, p . 21).
Decreto supremo de 9 abril 1920 : amplía el de 6 marzo del mismo
año, y establece la Presidencia del Tribunal arbitral y la forma de
votación que éste debe observar en los fallos (Legislación del Trabajo
y Previsión Social, p. 27).
Decreto supremo de 14 septiembre 1920 : amplía el de 6 marzo
1920 (Legislación del Trabajo y Previsión Social, p . 31).
Decreto supremo de 18 junio 1921 : elevación de multas en casos
de fallos arbitrales (Legislación del Trabajo y de Previsión Social,
P- 33)Decreto supremo de 4 marzo 1920 : ordena que los conflictos
que se susciten entre los hacendados y sus yanacones se sometan a
arbitraje, y el fallo, en este caso, sea acatado obligatoriamente.
(Reglamento de la Legislación de Trabajo y Previsión Social, p. 20).
Ley sobre reconocimiento de personería jurídica a las Sociedades,
aplicable a las Organizaciones obreras mutualistas (Ley no. 4223 de
29 enero 1921). (Ley de Trabajo y Previsión Social, p . 64.)
URUGUAY
CHAPTER I
THE TRADE UNION MOVEMENT
The trade union movement in Uruguay is subject to the same
divisions as that in the majority of the countries of Latin America.
From its origin, about 1898, up to 1918, it was completely under the
influence of Anarchist theorists. It reached its zenith in 1919, when
the central organisation, the Regional Workers' Federation of Uruguay
(R.W.F.U.) had a membership of 25,000. In 1923, the Federation
of Trade Unions of Uruguay was formed, on the model of the
Federation of Trade Unions in Argentina, and included all the nonAnarchist elements. In 1927 the revolutionary unions broke off from
the Federation of Trade Unions and founded a Workers' Union, which
•recently adopted the title of " General Confederation of Labour of
Uruguay ".
The trade unions were considerably weakened by all these
schisms, and their membership has now fallen to about 10,000,
distributed as follows over the various central organisations : General
Confederation of Labour (Communist) : 4,500 members ; Federation
of Trade Unions of Uruguay (Syndicalist) : 2,500 members ; Regional
Workers' Federation of Uruguay (Anarchist) : 1,500 members ;
Independent Trade Union (Reformist) : 2,000 members.
CHAPTER I I
LEGAL POSITION OF TRADE UNIONS
The Constitution of Uruguay guarantees the right to combine
for trade purposes and to meet without previous permission. The
legal position of trade unions, however, is not distinct from the
regulations under ordinary law concerning associations in general.
Among the numerous legislative steps which have been proposed
for regulating the position of trade unions, it will be sufficient to
mention that included in the draft Labour Code which has been
before Parliament since December 1927. Since this Code, when
adopted, will give legal sanction to some of the most advanced
principles of trade union activity, and since it already forms the
basis of Government practice in dealing with trade unions, it is
desirable to analyse it briefly here.
PROPOSED REGULATIONS FOR TRADE ASSOCIATIONS
Conditions of Existence
of Trade Unions
The regulations for the constitution, the working, and dissolution
of trade unions are borrowed, from French legislation 1, and it will
therefore suffice to give a brief summary.
Constitution
According to the draft Code, unions of employers or wage
earners, mixed unions and federations of trade unions for one
occupation or for similar or connected occupations, set up for the
purpose of studying, developing and defending the common occupational and social interests of the members, will be granted incorporation, provided they apply for recognition to the National Labour
Institute, submitting a copy of the foundation deed, the rules and
the names of the executive.
1
Cf. Freedom of Association, Vol. II, France.
232
FREEDOM OF ASSOCIATION
The rules must mention the name, domicile and headquarters of
the association, the conditions for admission and resignation, the
procedure for appointing and dismissing the executive, the period
of office of the executive, which may not exceed two years, the
method of administering the capital of the association, the sanctions
provided for infringements of the rules and of trade union decisions,
the procedure for revision or modification of the rules, and the
procedure for the voluntary dissolution of the association. Recognition of the trade association is confirmed by its rules being included
in a register kept for this purpose by the National Labour Institute.
Working
The trade unions are
concerning their working :
(i)
(2)
(3)
also subject
to certain
regulations
To keep accounts, correspondence files and registers of
their members ;
To communicate to the National Labour Institute any
change in the committee of management or in the administrative or supervisory bodies • connected with the trade
unions ;
To provide the National Labour Institute with full information as to the tasks with which it is entrusted.
Subject to these reservations, the trade unions are entirely independent. Moreover, resolutions adopted by these trade unions are
binding on all the members of that occupation, provided certain
formal conditions are complied with : that a general meeting of the
members has been convened twenty-four hours in advance and
notice of the agenda given ; that the vote should be individual and
by secret ballot ; that an absolute majority of the active members
should be present ; that representatives of the National Labour
Institute should be present and supervise the proceedings.
As in French legislation, the property and furniture necessary
for meetings, libraries, courses of instruction and social welfare work
are not distrainable.
Dissolution
Incorporation may be withdrawn from the trade union (which
is equivalent to forced dissolution) if it violates the provisions of the
Labour Code or the administrative regulations or of a collective
2
33
URUGUAY
agreement; if it does not comply with • compulsory arbitration
decisions ; if it declares an illegal strike, and finally, if the number of
members falls below the statutory minimum. The withdrawal of
incorporation is pronounced by a special Decree. Provided there
are no express stipulations to the contrary, the decree of dissolution
pronounced against a federation of trade unions does not involve the
dissolution of the various member unions.
Associations of employers are formed, work, and are dissolved
according to the same rules as workers' associations. The employers
are bound to recognise trade unions and deal with their representatives when any problem arises connected with the collective
regulation of labour conditions.
Such are the provisions which will in future control trade union
activity. It should, however, be noted that the trade unions will
remain entirely free to choose between the system under ordinary
law guaranteed by the Constitution and involving no formalities but
at the same time granting no privileges, and the special system
instituted by the draft Labour Code. As will be seen in the following
chapter, the advantages granted are such as are likely to lead to
the trade unions applying for recognition.
The Possibilities and Limits of Trade Union
Activity
As in most other systems of legislation concerning incorporation,
recognised unions have in the first place the rights automatically
implied therein (right to acquire and possess property, to conclude
contracts and to appear at law) and in addition, the right to organise
vocational courses and schools, social museums, co-operative societies,
employment exchanges, and all social welfare services compatible
with the aims of the association. The privileges of recognition,
however, can be seen most clearly in connection with more important
rights, such as that of concluding collective agreements, fixing
minimum wages, settling labour disputes and sharing in the
government of the State. In all these matters, indeed, recognised
trade unions have the right of legal representation of the interests
of the whole trade, including in certain cases those of third parties
who are not members of the trade unions.
Collective
Agreements
The recognised unions are in the first place the only organisations
entitled to conclude collective agreements. This is clearly shown by
234
FREEDOM OF ASSOCIATION
section 47, which defines collective agreements. It states that the
collective labour agreements concluded by an employer or an
association of employers and a trade union of employees or wage
earners, exists for the purpose of establishing certain minimum
working conditions in an undertaking or a group of undertakings,
and these conditions must of necessity become compulsory clauses
in the individual contracts concluded between the employer and
the members of the contracting union or unions.
An agreement concluded by a trade union, which includes an
absolute majority of the workers in the trade, covers not only the
contracting parties, persons who later become members, and persons
who join the agreement of their own free will with the consent of
the parties (principles which are recognised in most legislation on
collective agreements), but all undertakings and wage earners in
that branch of industry.
The conclusion of a collective agreement, which is to play such
an important part in regulating working conditions, is naturally a
formal act, and as such subject to certain conditions of content,
form and publicity. It must be drawn up in writing, lodged with
the National Labour Institute, and must contain a certain number
of facts : the names and addresses of the parties, the names of the
undertakings to which the agreement will apply, its duration (which
may not exceed two years), the date of coming into force, the
method of fixing working conditions, the form and nulice to be
given for withdrawal from the agreement, an undertaking to submit
disputes to arbitration, and the usual guarantees for the observance
of the agreement.
When one employer has concluded several collective agreements
with various trade unions, the provisions of the least favourable
contract shall automatically be replaced by those of the most
favourable one, in order that there may be equality of treatment in
the trade.
The methods of fixing minimum wages also falls within the
sphere of activity of the recognised trade unions. The wages committees for fixing minimum wages consist of a chairman representing
the National Labour Institute, three employers' delegates and three
workers' delegates, appointed by legally recognised trade unions.
The trade unions, as a consequence of their incorporation, may
take any legal action for the observance of agreements which have
been arrived at, or for claiming damages resulting therefrom.
URUGUAY
2
35
The trade union is responsible to the extent of its capital for
the acts of workers who are members of it. Moreover, the capital
of a trade union which is being dissolved will continue to be used
as a guarantee for the observance of a collective agreement until
this agreement expires.
It should be added that works regulations must be submitted
to the trade unions for approval. Any provisions of the regulations
which are in whole or in part contrary to the provisions of a collective
agreement are declared void and automatically replaced by the
corresponding provisions of the collective agreement.
The Settlement
of Disputes
In addition to the privilege of concluding collective agreements
and sharing in fixing minimum wages, the recognised trade unions
have also the right to intervene in the settlement of labour disputes.
Just as in Chile, Colombia and Peru, the conciliation and arbitration
system in Uruguay has three stages : (i) works committees for
preventing disputes ; (2) conciliation boards ; (3) arbitration courts.
Works committees on a joint basis must be set up in each undertaking
employing more than fifty workers. The workers' delegates on
the committee are appointed by the trade union concerned, while
the head of the undertaking appoints the representatives of the
management. The purpose of the works committees is to examine
any complaints by the workers, to interpret their demands to the
head of the undertaking, and in general to prevent any disputes which
are threatening to break out.
Disputes which cannot be avoided by the works committees
are compulsorily submitted to the conciliation board. It follows that
work may not be stopped while the conciliation proceedings are in
progress.
The conciliation board consists of a chairman, a delegate of the
staff for each undertaking and a delegate for each employer. The
staff representatives are appointed according to the rules laid down
in the collective agreement, or failing such an agreement, by the
trade union concerned. The collective agreement may also create
permanent conciliation boards. When there is no collective
agreement and no trade union the National L,abour Institute will
appoint representatives of the staff and of the undertakings to the
conciliation board.
The results of the discussions on the conciliation board, which
¿36
FREEDOM OF ASSOCIATION
may not last more than three days, are published in thè Diario oficial,
this being the only sanction — a moral one, as can be seen — involved
in the conciliation proceedings.
The third stage — arbitration — is in principle optional. With
regard to arbitration, the Code makes the same distinction as has
been seen in Peruvian legislation for the settlement of labour disputes.
In certain cases it is compulsory to siibmit the disputes to arbitration,
but the parties are left free to accept the decision or not. In other
cases the parties are obliged both to submit the dispute to arbitration
and to comply with the decision given.
Arbitration is compulsory if it is made so by the collective
agreement, or if, when no such agreement exists, one of the parties
appeals for arbitration to the National Labour Institute. In these
two cases the parties are not bound to observe the decision, and the
only sanction, which is purely moral, as in the case of conciliation,
consists in the publication of the decision in the Diario oficial and
in its being posted up in the workshops.
On the other hand, the arbitration decision is binding on pain
of penalties fixed by the Court itself : (1) if the parties undertake
in collective agreements to settle disputes by arbitration ; (2) if in
default of a collective agreement the two parties agree to appeal to
the arbitration court ; (3) if the dispute occurs in public undertakings
or services.
The arbitration court is composed in the same way as the
conciliation board, with this difference, however, that the workers'
and employers' representatives must not be connected with the
dispute. The collective agreement may also provide for permanent
arbitration courts. The arbitrators may undertake any investigation
which they consider necessary, including a visit to the undertaking,
examination of the accounts, etc.
The decision is given by a majority vote and must be arrived
at within fifteen days.
If the decision is binding, employers are not permitted to
engage their staff under conditions less favourable than those
mentioned in the decision, nor are the workers permitted to carry
out propaganda in favour of a strike.
The decision remains in force for one year. Any provisions
of the collective agreement or the works regulations contrary to that
of the Order are replaced by the latter.
This brief survey shows that the procedure adopted in Uruguay
URUGUAY
237
for the settlement of disputes limits to some extent the right to strike.
Thus a strike is illegal during the period of conciliation (three days).
It is expressly forbidden if, in terms of an agreement between the
parties (collective agreement) or according to an Act (public services)
the dispute has to be submitted to and settled by an arbitration court.
Apart from these specific cases, the right to strike not only exists,
but is in certain circumstances compulsory. It is compulsory not
only for the members of the trade union, but also for all members
of the trade whose conditions of work are regulated by a collective
agreement. This is the case when the following conditions are
fulfilled : (1) when a special meeting has been held, to which ail
those immediately affected by the dispute have been personally
convened twenty-four hours in advance ; (2) when the majority of the
wage earners concerned have been present at that meeting ; (3) when
two-thirds of those present have decided in favour of a strike ;
(4) when the National Labour Institute has been represented at the
discussion and has supervised the results.
While the strike is general in the undertaking or undertakings
directly affected, it is on the other hand limited to the workers directly
concerned. Federations of trade unions are, in fact, prohibited from
declaring strikes, for they are not parties to collective agreements 1 .
As soon as a stoppage of work has been decided upon, a strike
committee of five members must be set up for the purpose of informing the associations of the state and development of the strike,
distributing strike relief, acting as intermediaries between the
strikers and the employers, and calling a general meeting if necessary
for ending the strike. Even after a strike has taken place, an appeal
to arbitration may be made, provided that work is first of all resumed.
The following acts are considered as offences against the liberty
to work, and are punished by imprisonment up to a maximum of six
months : inciting to strike by persons not connected with the dispute ;
illegal pressure by an employer on the wage earner or vice versa by
means of gifts or threats ; all acts tending to destroy machinery or
tools, to diminish their value or to damage them in any way whatsoever ; any coalition or agreement or any verbal or written
propaganda for the same purpose.
Finally, the effective and systematic representation of occupa-
1
Cf. above, Chile : Regulations concerning strikes and lock-outs.
238
FREEDOM OF ASSOCIATION
tional interests is ensured by the fact that recognised trade unions
take a share in the work of the National Labour Institute, which
has very extensive powers for the preparation, supervision and
administration of labour legislation.
BIBLIOGRAPHY
Proyecto de código del trabajo.
Montevideo, 1927.
Cámara
de
los
representantes,
Libro I : Title III : Convenciones colectivas del trabajo.
Title I : Sindicatos de empleados. Title II : Sindicatos de empleadores. Title III : Conflictos industriales.
Libro II : Cap. II : Del salario minimo.
Libro I : Title III : Convenciones colectivas del trabajo.
Libro V :
Instituto nacional del Trabajo.
VENEZUELA
GENERAL SUMMARY
In Venezuela the right to strike and the right of association for
trade purposes are both summarily regulated by the Labour Act
of 23 July 1928, Chapter IV : " Fixing of wages and salaries, and
the relationship between masters and employers and their salaried
employees and workers ". It will be sufficient to outline this measure.
According to section 37, wages and salaries are fixed by
voluntary agreement between the employers and the wage earners,
thus obviously prohibiting the trade unions from taking part in
regulating labour conditions.
Workers in any undertaking who cease work cannot oppose the
engagement of other wage earners. This is a general prohibition
of boycotting in its various forms and of picketing.
According to section ¿y, violence, threats and any acts calculated
to interfere with the liberty of trade or of work, or to constrain a
person to abandon or resume work, are forbidden and liable to
penalties under the Penal Code.
Employers, unless there is any provision to the contrary in their
contracts, are entirely free to close their factories and dismiss the
whole or a section of their workers in order to impose their own
conditions of work.
The Presidents of States and the Governors of federal districts
or federal territories act as arbitrators in any disputes arising from
the application of the legal provisions concerning the working day,
hours of work, occupational risks, or the fixing of wages, provided
that these disputes have been submitted to them by the two parties
and that they have led or are likely to lead to a strike or lock-out in
one or more undertakings. Either party may appeal against the
decision of the arbitrator to the Minister of the Interior, whose
decision shall be final.
VENEZUBLA
241
The freedom to combine for trade purposes is granted subject
to a double reservation. In the first place, associations of workers
and employers are not permitted to become affiliated to foreign
organisations, or to take part in or be represented at international
congresses or committees, on pain of dissolution of the association
by the administration and a fine varying from 100 to 1,000 bolivars
imposed on the heads of these associations. In the second place,
the same sanctions apply to associations carrying on Communist
propaganda and those calculated to interfere with public order or
considered contra bonos mores.
Freedom of Association
16
BIBLIOGRAPHY
INTERNATIONAL LABOUR O F F I C E :
Legislación
social
de
America
Latina. Vol. II : Ley del trabajo of 23 July 1928. Chap. IV : De la
fijación de los sueldos, salarios y de la relaciones entre dueños o patronos
y empleados u obreros.
II. - CENTRAL AMERICA '
GUATEMALA, NICARAGUA, COSTA RICA,
SALVADOR, HONDURAS, PANAMA
CHAPTER I
T H E TRADE UNION MOVEMENT
Among the different Central American Republics the similarity
of geographic and climatic conditions has been instrumental in
creating common interests, which have been strengthened by their
common desire to maintain their independence in the face of foreign
influence and by the fact that their economic conditions are very
similar. These common interests obviously include the subject of
combination for trade purposes.
The representatives of the trade unions of the Central American
Republics, conscious of the community of their interests, met together in 1911 in San Salvador at a labour congress at which common
principles for the organisation of trade combinations were adopted.
In fact, the central trade union organisations of these countries : the
Guatemala Federation of Labour (6,000 members), the Nicaragua
Federation of Labour (5,000 members), the Costa Rica Federation
of Labour (4,000 members), the Labour Union of Salvador (3,000
members), the Panama Federation of Labour, and the different unions
in Honduras (6,000 members), which have not yet formed a central
organisation, are all organised on the same basis and their activities
are governed by the same principles.
In the matter of trade union organisation they resemble each
other in that, in addition to defending the interests of their members
1
-cee footnote, p. 151.
244
FREEDOM OF ASSOCIATION
as workers, they have organised provident institutions and mutual
benefit and co-operative societies in order to enable their members
to reap benefits not yet conferred on them by law and which can be
secured by means of combined action. Further, they hold the same
doctrines as regards trade union action, for all of them profess their
faith in equality, adopt the co-operation of all classes as a guiding
principle and desire to achieve reform, especially agrarian reform,
by peaceful means.
In the political field the trade unions are sometimes supported
by the Labour Parties, as in Costa Rica, but more frequently by the
Liberal Parties.
In so far as the Central American trade union organisations have
developed regular international relations, they are affiliated to the
Pan-American Federation of Labour.
It should be added that in all of the Republics there exist organisations with Communist views, but they are of little importance.
To sum up, it may be said that so far the attempts made to
organise stable organisations possessing any real unity have not met
with success, partly because the Republics are essentially agricultural
States in which the system of big plantations still prevails, but chiefly
because a great many of the native wage earners are still opposed to
the idea of trade union organisation.
CHAPTER II
THE LEGAL POSITION OF TRADE ASSOCIATIONS
Owing to the relative unimportance of the trade union movement
it has not been found necessary to pass Acts specially dealing
with trade unions. With the exception of Guatemala, which has
regulated labour disputes, and Salvador, which has established procedure for the registration of trade unions, the Central American
countries have made no regulations regarding the position and the
activities of trade associations.
In Chapter IX of the Guatemala Labour Act of 30 April 1926
(sections 44 to 61) conciliation committees and arbitration boards are
set up with the duty of settling labour disputes of a collective nature.
According to section 47 all disagreements or disputes which arise
between wage-earning or salaried employees and employers respecting
the conditions of employment must be submitted to a conciliation
committee and, if the latter fails to bring about an agreement between
the parties, to an arbitration board for its award.
For this purpose the persons concerned must submit in writing
to the Director of the National Labour Department :
(a) A brief statement of the cause of the dispute ;
(6) The names and addresses of the parties concerned ;
(c) The names and other particulars of six persons nominated
by the applicants as members of the conciliation committee.
The Director of the National Labour Department, through the
justice of the peace, notifies the other party of the conciliation proposal, and the latter then also nominates six persons as members of
the conciliation committee.
These twelve representatives are
convened by the Director of the National Labour Department, who
chooses by lot three representatives of each party who are finally to
constitute the conciliation committee. The conciliation committee
thus constituted meets under the chairmanship of the Director of the
National Labour Department and endeavours to settle the difference.
24-Ó
FREEDOM OF ASSOCIATION
If agreement is reached, it is embodied in a report which is communicated to the parties. If, on the other hand, the committee fails to
reach agreement, the parties submit the dispute to one or more
arbitrators.
The award of the arbitrators is definitive and is binding for a
period of not less than one nor more than three years.
Section 65 states that while a labour dispute is pending the
existing conditions or situation shall not be altered, wage-earning or
salaried employees shall not be dismissed, and a strike or lock-out
shall not be declared.
To this, section 66 adds that the parties concerned in a dispute
shall not make official or semi-official declarations intended to intimidate any of the officials to whom the Act entrusts the duty of
settling labour disputes, nor declarations respecting refusal to accept
or comply with the decisions which are about to be issued.
According to section 67, strikes and lock-outs must be announced
publicly a fortnight in advance in the case of public services (railways,
harbours, power supply or services for the supply of the necessaries
of life) and a week in advance in all other cases.
Acts committed contrary to the provisions of sections 65, 66
and 67 are deemed to be offences against public order and are
punishable by correctional imprisonment for three years. The
punishment for acts of intimidation or violence directed against
persons or property which are committed by persons taking part in
a strike is a penalty exceeding by one-third the penalty provided
for the act in question under the general law.
In the case of a lock-out or strike in public services or public
utility services, the executive authorities take over the management
of those services for the duration of the lock-out or strike.
The Salvador Decree of 28 October 1927 on the registration of
workers' associations and trade combinations requires all associations
wishing to avail themselves of the rights and privileges conferred
on them by legislation to be registered.
For the purpose of registration the associations, through the
representative of the association, must submit a request to be
registered to the conciliation committee of their Department. This
request must contain the following particulars : the name of the
association, its headquarters, the date on which its rules were
approved by the executive authorities and the date on which they
were published in the Diario oficial, the number of members and
CENTRAL AMERICA
247
of affiliated members, the n u m b e r of national and foreign members
being stated separately.
I n 1929 t h e Government of Panama submitted a draft Labour
Code to t h e Congress, which deals in Chapter I X with t h e legal.
position of trade associations. I t r u n s as follows :
All persons shall be entitled to combine for the purpose of defending
their individual or collective interests and to form trade unions or other
associations.
These trade unions or other associations shall possess legal personality, including the power to enter into contracts and to exercise any
right and to bring any action arising out of or relating to the same,
provided that they comply with the following conditions :
(a) Where they are composed of employers these trade unions
or other associations shall have at least twenty members engaged
in the same industry or in a similar industry in the same industrial
district.
(b) Where they are composed of wage-earning or salaried
employees these trade unions or other associations shall have at
least twenty members employed in the same trade or in a similar
trade in the same industrial district.
(c) They shall set up a committee composed of at least a president, a treasurer, a secretary and two other members.
(d) They shall forward a written copy of their constitution to
the National Labour Department.
(e) They shall comply with the regulations issued by the
National Labour Department l .
Finally, it is interesting to note, as an indication of t h e trend
of trade union development, that t h e Governments of t h e Central
American Republics intend to give effect to an agreement concluded
in Washington on 7 February 1923 between Guatemala, Nicaragua,
Salvador, H o n d u r a s a n d Costa Rica, b y virtue of which each of t h e
parties undertakes, among other obligations, to encourage t h e institution a n d development of joint associations
of employers and
workers, as also of co-operative societies for wage earners a n d
agricultural labourers.
1
Cf. Código administrativo
de Panama, 22 Aug. 1916, Chapter V,
section 4, and INTERNATIONAL LABOUR O F F I C E :
Legislación
America Latina, Vol. II, p. 343 : " De las huelgas. "
social de
BIBLIOGRAPHY
INTERNATIONAL LABOUR O F F I C E :
Latina,
Legislación
social
de
América
Vol. IL
Guatemala : Ley del trabajo, 30 April 1926. Chapter I X ; De
los conflictos del trabajo y de la manera de resolverlos, pp. 267
and seq.
Salvador : Registro de agrupaciones obreras y gremiales (Decree of 28 October 1927).
Industrial and Labour
Legislation in Panama.
Information,
Vol. X X I X , p . 192 : Proposed
TRONCOSO, Poblete. " Labour Legislation in Cuba and Certain
Central American Countries. " Monthly Labour Review, Sept. 1929,
pp. 7 et seq.
III. - CUBA
CHAPTER I
THE TRADE UNION MOVEMENT
Though in certain industries in Cuba the workers' movement is
already well developed, it is not yet organised on a national scale.
Among the most important organisations should be mentioned the
federations of railwaymen, tobacco workers and woodworkers, which
are affiliated to the International Federation of Trade Unions in
Amsterdam, the federation of dock labourers, and the unions of
seamen, tramway employees, compositors and printers, and of café
and hotel workers which have their central offices at Havana.
So far the main characteristic of the Cuban trade unions has
been their extreme instability, but at present efforts are being made
to create a central national organisation which will be affiliated with
the International Federation of Trade Unions.
The associations of salaried employees are, on the other hand,
numerous, thriving and firmly established. Most of them were
founded by members of the Spanish colony who grouped themselves
according to the districts from which they originally came. These
organisations are for the most part mutual benefit and provident
societies rather than trade unions as the term is generally understood.
Thus the Association of Commercial Employees, which has 42,000
members, has organised a savings fund, a pensions fund and a
convalescent home. The " Centro-Asturiano " with a membership
of 72,000, has a bank, a savings fund, a commercial school giving
vocational training to 1,400 pupils, a hospital, medical services,
dispensaries, sanatoria and homes for old people.
The other employees' organisations, such as the Galician,
Balearic, Catalan, Andalusian and Basque societies are modelled on
the " Centro-Asturiano ".
250
FREEDOM OF ASSOCIATION
The employers have also formed a strong central organisation,
the " Asosiación Patronal de Cuba ". The Association makes itself
responsible for settling all labour disputes affecting its members.
In accepting its rules employers undertake to abide by any decisions
concerning such disputes taken by the executive committee or the
general assembly in order that problems confronting members of
the Association in their dealings with their employees may be quickly
and equitably solved.
CHAPTER II
THE LEGAL ORIGIN OF TRADE ASSOCIATIONS
I n Cuba the right of association is governed exclusively by Acts
dating from the time of Spanish domination 1.
Article 28 of the Cuban Constitution of 1901, which reproduces
word for word Article 13 of the Spanish Constitution, lays down the
right of assembly and association in the following terms :
All inhabitants of' the republic have the right to assemble peacefully
and unarmed and to associate with others for all lawful purposes of
human life.
T h e right of assembly was specially regulated by a Spanish Act
dated 15 J u n e 1880, extended to Cuba on December 1881. According
to this Act the right of peaceful assembly, guaranteed to all citizens
by Article 13 of t h e Constitution, is subject to t h e following
restrictions only :
The promoters of a public meeting [the Act defines a public meeting.
as one attended by more than twenty persons which is held outside the
ordinary domicile] must notify the public authorities in writing of the
purpose, time and place of the meeting. Demonstrations and processions
on the public highway must be authorised in advance. The representatives of the public authority may attend meetings but not take part in
the discussions. The public authorities have the right to dissolve all
meetings held contrary to these provisions or dealing with other matters
or held at other places than those defined in the notification, as well as
those likely to interfere with communications. Other than peaceful
assemblies, as well as those at which offences are committed or it is
decided to commit offences, are also prohibited. In the last case the
authorities notify the Government and institute proceedings before the
ordinary courts.
Similarly, t h e right of association is defined b y t h e provisions of
a Spanish A c t of 30 June 1887 promulgated in Cuba on 2 July 1888.
Section 1 of the Act enumerates the associations to which t h e
1
Freedom of Association,
Vol. IV : Spain, Chapters I and II.
25 2
FREEDOM OF ASSOCIATION
Act applies, stating that among others its provisions apply to trade
associations, mutual benefit and provident societies, charitable
foundations and co-operative societies for production, credit or
distribution.
The founders or organisers of an association are bound, one
week before constituting the association, to submit to the Governor
of the Province where the headquarters of the association will be
situated, two copies of the rules, regulations, contracts or decisions
by which the association is to be governed, stating its name, objects,
headquarters, form of administration or management,. the funds with
which it proposes to cover its expenses, and the use to be made of
its funds or capital in the event of dissolution.
Similar formalities must be fulfilled for the foundation of branches, and for any change in the constitution or headquarters of the
principal association or its branches.
The legal existence of all associations is attested by means of
certificates, issued on the basis of the register of trade associations,
which the directors, presidents or representatives of the association
are entitled to demand.
In order that each association may retain its separate individuality, section 8 of the Act provides that no association may take
a name identical with that of another association already registered
in the Province or so similar that the two associations might easily
be confused.
Section g of the Act requires twenty-four hours' notice to be
given before the holding of general meetings. The founder, director,
president or representative of any association must give notice in
writing to the Civil Governor in the provincial capitals, and the local
authorities in other towns, of the place and date on which the
association holds its ordinary meetings, twenty-four hours before the
first sitting. General assemblies are subject to the provisions of the
Act concerning public meetings 1, if they are held elsewhere than on
the premises of the association, or on days other than those specified
in the rules or resolutions communicated to the authority, or if thev
deal with matters not relating to the purposes of the association, or
if persons not belonging to the association are permitted to be present.
The Government authorities may at any time enter the headquarters of an association and the places where its meetings are held,
1
Cf. above.
CUBA
*53
and order the immediate suspension of any meeting or assembly at
which any of the offences specified in the Penal Code is committed.
In section io the Act makes it compulsory to keep a list of
members and one or more account books in which, under the control
of persons exercising managing or directive functions, all the receipts
and expenditure of the association must be entered, showing clearly
the sources of the receipts and the various items of expenditure.
Further, the associations which collect or distribute moneys for the
relief or assistance of members or for charitable, educational, or
other similar purposes, must-draw up every six months an account
of their receipts and expenditure, present a statement thereof to the
members and forward one copy to the Provincial Governor within
five days of its being drawn up.
Two penalties can be imposed on trade associations which fail
to observe the provisions of the Act : suspension and dissolution.
Suspension is a provisional measure and may apply either to meetings
or assemblies, or to the operations of the association itself. As
already shown, section 12 of the Act provides that the representatives
of the Government authorities may at any time enter the headquarters
of an association and the places where its meetings are held, and
order the immediate suspension of any meeting or assembly at
which any of the offences specified in the Penal Code is committed.
The same section provides for the suspension of the association
itself. The Governor of the Province may also order the suspension
of the activities of any association, stating clearly his reasons for
doing so, if it appears from the resolutions adopted by the association
or from the actions of its individual members that there is sufficient
ground for considering that its activities must be deemed to be unlawful or that offences have been committed Which would justify its
dissolution. The suspension is without effect, however, until it has
been submitted to and confirmed by the ordinary Courts.
Only the judicial authorities are competent to order the dissolution of the associations set up in conformity with the Act : (1) in
accordance with the general law on unlawful associations ; (2) as
a penalty for offences committed in fulfilment of decisions of the
association ; (3) as a penalty for offences committed by members of
the association, provided that the complicity of the association itself
has been proved.
The compulsory dissolution of a trade association has the following effects : if the dissolution of an association has been ordered
254
FREEDOM OF ASSOCIATION
by irrevocable sentence, it shall not be lawful for another .association
to be formed with the same name or for similar purposes if those
purposes have been declared unlawful. If they have not been declared unlawful and another association with similar name or purposes
has been formed, it shall not be lawful for individuals on whom a
penalty has been imposed by the above-mentioned sentence to belong
to the new association.
As regards the property of associations, section 18 of the Act
provides that in the event of dissolution associations are subject to
the provisions of the civil law respecting collective property. If the
dissolution of an unlawful society has been pronounced, its property
is handed over to charitable institutions at the headquarters of the
society or, failing this, in the province.
CHAPTER III
POSSIBILITIES AND LIMITATIONS IN REGARD
TO TRADE UNION ACTION
The Act of 9 June 1924 respecting conciliation machinery for the
settlement of collective disputes in maritime occupations lays down
rules for the fixing of wage scales on the one hand and for the
settling of collective disputes on the other.
According to this Act, a conciliation board is set up in every
port of the Republic in which there are workers employed in maritime
occupations.
The local judge of first instance, or, in default of such, the
municipal judge for the district, acts as chairman of the board, which
consists of equal numbers of employers and workers.
Where there is a workers' organisation, the said organisation
represents the workers ; where not, the workers concerned are
summoned to a special meeting at which they elect their representatives on the board.
To facilitate the election of the members of the board its chairman
keeps a register in which the individuals and bodies which apply for
registration as employers or workers are entered. In ports where
the workers are not organised and where there are no bodies
representing them, the workers are entered individually in the
register kept for this purpose.
The duties of the boards are twofold : to adopt wage scales
and rules of employment, and to settle any differences arising with
regard to the application of regulations made by them.
Wage scales are fixed as follows. The chairman of the board
summons the representatives of the employers and workers to a
meeting to consider a draft resolution containing rules of employment
and a wage scale. The different clauses of this draft are submitted
for discussion and put to the vote.
After the rules of employment and wage scales have been discussed and adopted, the chairman convenes meetings of employers
256
FREEDOM OF ASSOCIATION
and workers separately.
At these meetings the resolutions
may be approved or rejected. If the resolutions are rejected because
they are contrary to the general interests of the organisation, it is
necessary for the organisation concerned to pass a vote of confidence
in its representatives before the board. If it fails to do so, a new
board is appointed, which again discusses wage scales and rules of
employment. If, on the contrary, a vote of confidence in the
members of the board is passed and if all or part of the resolutions
are rejected, an appeal against them may be lodged with the
Secretary of Agriculture.
The resolutions finally adopted are
binding and must be carried out.
When the Decree issuing rules of employment and wage scales
for a port has been published, the board has accomplished its first
duty and its sittings are suspended for the time being. It does not
meet again except for the purpose of conciliation and arbitration In
disputes arising with regard to the application of the rules made.
The procedure for the settling of differences varies according
as to whether the dispute in question has led to a stoppage of work
or whether it has not yet resulted in an open rupture of relations.
In the latter case the procedure is as follows. When a difference
arises between workers and employers or between an individual
worker and an undertaking, the body or individual making the complaint makes a declaration thereof to the police authorities, stating that
he is exercising his rights under the Conciliation Act. The clerk of
the police office to whom the declaration is made draws up a statement,
which is signed by the person making the declaration and the witnesses, and transmits it directly to the judge who holds the office of
chairman of the conciliation board.
On receipt of this statement the chairman of the board sends it
to one of the members of the conciliation board, requesting him
within forty-eight hours to investigate the case and to submit a report
recommending the solution which seems to him equitable. When
the statement has been returned with the report of one member of
the board, it is transferred for the same period to another member
representing the other group on the board, in order that he in his
turn may investigate the case, submit a report and propose a solution.
The chairman of the board, having considered the reports, issues his
decision within three days.
In the case of a strike the following procedure is adopted. If
a stoppage of work occurs in a port as a result of demands put forward
CUBA
257
by the workers or of failure to comply with the agreement, a statement
is drawn up by the party putting forward the demands, giving the
reasons for the dispute, and the clerk of the police office reports the
matter at once to the chairman of the board. The latter immediately
convenes a meeting of the conciliation board, which then sits as a
permanent committee.
As soon as the conciliation board has been constituted it summons the parties concerned in the dispute and records the statements
of each party, indicating clearly and specifically the reasons for the
demands put forward and the reply made thereto by the representatives of the other party to the dispute.
The board calls upon the parties to respect the agreements
reached and to resume work while the demands are investigated.
Any body which causes a dispute by its failure to observe the
provisions of a contract of employment or the rules of employment
or wage scales, and when called upon to observe them refuses to
do so, is guilty of the crime of disobedience to the authorities
punishable by detention for thirty-one days.
If the party called upon to resume work while the case is
pending fails to do so, the chairman notifies the Secretary of the
Interior that a state of strike has been declared, and at the same
time informs the chief of police of the district, calling upon him to
take steps to maintain public order, without compelling workers who
do not desire to work to do so. On the other hand workers must
not be prevented by force from exercising their right to work. The
chief of police is also required to report all events which may occur
to the Secretary of the Interior.
If the workers agree to resume work, the judge, without interrupting the proceedings, causes all necessary enquiries to be made
with a view to establishing the claim or proving that it is unfounded ;
when he has all the data in his possession, he convenes the conciliation board and submits the decision in the matter to the vote. When
the decision in settlement of the dispute has been made it is binding
on all parties and is communicated to them and to the Secretary of
the Interior.
When the decisions of the board have become definitive, the
chairman transmits to the President of the Republic a copy of the
agreement in order that it may be published by means of a Presidential
Decree in the Gaceta Oficial as the only legal set of rules of employment and wage scales for the port for which the board is competent,
Freedom of Association
•7
258
FREEDOM OF ASSOCIATION
and any previous rules of employment and wage scales thereupon
cease to have effect.
All resolutions and decisions of the boards being binding, failure
to observe or comply with them constitutes the crime of disobedience
to the authorities punishable by imprisonment for thirty-one days.
The board need not take this penal measure if it does not consider
it advisable or desirable.
It should be noted that the Act of 9 June 1924 concerning
machinery for the settling of disputes applies only to maritime occupations, and further that the penal code of Cuba — which reproduces
the old Spanish Penal Code — continues in section 567 to prohibit
all combinations and strikes calculated to affect the price of
merchandise or wages.
BIBLIOGRAPHY
Leyes de Reuniones publicas y asocianones vigente en Cuba. Havana,
i9!9Constitución de la República de Cuba, igoi.
INTERNATIONAL LABOUR OFFICE.
Legislación Social de América
Latina. Vol. II (Cuba): Ley creando las Comisiones de Inteligencas.
9 June 1924, p. 139 {Legislative Series, 1924, Cuba 1).
TRONCOSO, Poblete. " Labour Legislation in Cuba and Certain
Central American Countries. " Monthly Labour Review, Sept. 1929,
pp. 7 et seq.
SOUTH AFRICA
CHAPTER I
EVOLUTION AND PRESENT POSITION
OF TRADE UNIONISM
Previous to the South African War, 1899-1902, trade unionism
in South Africa was practically negligible. Towards the close of the
nineteenth century the first branches of certain " international "
(i.e. British) unions were established, the earliest recorded being that
of the Amalgamated Society of Carpenters and Joiners (now the Amalgamated Society of Woodworkers) in 1881. In 1893 three branches
of the Amalgamated Society of Engineers (now the Amalgamated
Engineering Union) were established in Durban, Kimberley and
Johannesburg. The Iron Moulders' Society was established in 1896,
and the South African Typographical Union and the South African
Engine Drivers' and Firemen's Association in 1898. In the majority
of cases these unions were established by men who had come from
overseas, and in the case of the international organisations had
retained their membership until permission was secured 'for the
opening of local branches. These trade unions did not have much
power, nor were their activities very widespread until the advent of'
the industrial upheavals of 1913-1914. As far back as 1889, however,
a strike over wages and hours occurred in the engineering shops in
Johannesburg, and it is interesting to note that the pickets were
charged by the mounted police with drawn swords—as it happened,
without casualties.
For the first 13 years of the present century, the trade union
movement made slow but steady progress throughout South Africa.
For a number of years the organised workers in the Transvaal, or
2Ò2
$\
FREEDOM OF ASSOCIATION
more particularly the Witwatersrand, were represented by the Witwatersrand Trades and Labour Council. At the same time the
political aspirations of the workers were catered for by an organisation
known as the Labour Representation Committee. In 1911 the Transvaal Federation of Trades (reorganised in 1914 as the South African
Industrial Federation) was established, taking over the work of the
Witwatersrand Trades and Labour Council. Practically all the
representative organisations at that time in existence in the Transvaal
became affiliated to the new organisation.
In May 1913 a strike occurred at the Kleinfontein Gold Mine as
a result of an attempt on the part of the management to compel five
of their mechanics who were employed underground to work on
Saturday afternoons. This strike eventually spread, and on 4 July
developed into a general strike comprising all classes of workers in
the Witwatersrand gold mines, as well as many other industries.
Attempts by the Government to prevent certain meetings from being
held were resisted by the workers. Martial law was proclaimed and
the ensuing conflicts between the police and strikers resulted in a
number of lives being lost. A settlement was finally effected by a
conference between three members of the cabinet and representatives
of the Federation of Trades. The immediate' result of this strike
was a rapid increase both in the membership and in the number of
trade unions.
In January 1914, another upheaval took place in connection with
a strike of railway workers, and on this occasion the Federation was
instrumental in calling a sympathetic strike which was most effective
in the Witwatersrand gold mines, and which spread also to other
centres throughout South Africa. Martial law was again proclaimed,
police and defence units were called up and the general strike
collapsed.
As a result of this upheaval, the trade union movement suffered
a most severe setback, many of the more recently established
organisations went out of existence, and the older unions lost
heavily in membership.
Increased industrial activity from 1914 onwards as a result of
the World War, and a feeling of discontent on account of the rise
in the cost of living, had its reflex action on the trade union movement, which again became active, although membership was small
compared with what it had been.
In 1915 for the first time, the Transvaal Chamber of Mines
263
SOUTH AFRICA
recognised the trade union movement, and a conference was held to
discuss certain demands which had been put forward through the
South African Industrial Federation (formerly the Transvaal Federation of Trades) on behalf of its affiliated unions. This method of
joint negotiation continued, so far as the mining industry was concerned, through the whole of the war period until the strike of 1922.
The action of the Transvaal Chamber of Mines in thus recognising
the trade union movement considerably influenced other employers
of labour, and recognition throughout the country became more or
less general. The progress of trade unionism during these years may
be seen from the following table :
Year
Number of trade
unionists
Year
Number of trade
unionists
1900
3,836
1916
15.367
!9°5
6,343
1917
39,153
1910
9,178
1918
77,819
I914
11,941
. 19*9
"3,707
i^i5
10,538
1920
^.^o
From 1911 till 1920, the South African Industrial Federation
was generally accepted as the most representative organisation in
South Africa. Subsequently, a number of trade unions seceded
from the Federation, and during 1922 and 1923 attempts were made
to form a new central organisation. These attempts, however, did
not prove successful. At the present time an organisation known as
the South African Association of Employees' Organisations l , set
up in 1925, is considered as the one most representative of the
organised workers in South Africa, although the South Afridan
Industrial Federation still continues in existence.
From 1920, and particularly after the general strike of 1922, the
membership of trade unions decreased considerably. With the advent
of the Industrial Conciliation Act of 1924, however, a certain amount
of interest was revived and in many instances trade unions have been
resuscitated by the assistance of the Labour Department. The follow1
The name of this organisation has been recently changed to the
South African Trades Union Congress.
264
FREEDOM OF ASSOCIATION
ing table shows the n u m b e r of trade unionists in the various classes
of occupation on 31 December 1925 * :
Class of occupation
Membership
Mining
9,681
Engineering and metal working
3,509
Building
5.923
Printing, bookbinding, etc.
3,204
General manufacturing
2,889
State services (excluding teaching)
26,414
Teaching services
8,130
Municipal and tramway services
6,938
Trading and clerical
6,208
Miscellaneous
Total
20,707
93,603
Some idea of the extent of trade union organisation in South
Africa, as compared with the working population, may be gained
from the fact that, according to the South African
Year
Book,
25,221 Europeans and 241,644 non-Europeans were employed in
m i n i n g in 1922, and 59,995 Europeans and 110,956 non-Europeans in
factories in 1921-1922.
1
The total membership of trade unions in 1926 was 116,231, the
apparent increase being largely due to revision of lists. (Official Year
Book, 1926-1927, p. 216.)
CHAPTER II
PRESENT POSITION OF THE RIGHT OF ASSOCIATION AS
REGARDS TRADE UNIONS
There has never been any legal restriction in .South Africa on the
liberty of the individual to combine or refrain from combining on
a vocational basis. In the past there have been occasions when
employees were dismissed on account of their having become members
of a trade union. In other cases employees have been dismissed on
account of active participation in trade union work as officials.
Recent agreements entered into by employees and employers in
accordance with the provisions of the Industrial Conciliation Act,
1924 \ have included provisions that employers, members of
employers' organisations, may only employ men who are members of
a trade union and vice versa.
LEGISLATION AFFECTING T H E R I G H T OF ASSOCIATION
Previous to the passing of the Industrial Conciliation Act, 1924,
the Transvaal Industrial Disputes Prevention Act, 1909, required that
one month's notice of any proposed alteration in wages or working
conditions should be given, and if within the month application was
made and a Board appointed, no change could be made (except by
mutual agreement) until one month after the Board had reported.
Under this same Act strikes and lock-outs were prohibited pending
investigation by a Board appointed under the Act. This Act was
repealed by the Industrial Conciliation Act, 1924.
The present position of the right of association of trade unions
and employers' associations in South Africa is determined in the
1
See
S. A. 1.
INTERNATIONAL LABOUR OFFICE
: Legislative Series, 1924,
266
FREEDOM OF ASSOCIATION
main by two Acts, the Riotous Assemblies Act, No. 2j .of 1914, and'
the Industrial Conciliation Act, No. 11 of 1Q24. The Riotous Assemblies Act owes its importance in this connection chiefly to the provisions regarding picketing. The Industrial Conciliation Act is of
importance both from the fact that it provides for the compulsory
registration of trade unions and employers' associations and also in
that it imposes certain restrictions on industrial action.
CONDITIONS OF THE ILEGAL EXISTENCE OF TRADE UNIONS
The Industrial Conciliation Act, makes it compulsory for every
trade union and employers' organisation to apply for registration
(section 14). Such application must state :
(a) the name of the trade union or employers' organisation and
the area in which it is or is proposed to be operative ;
(fe) the designation, names, and addresses of its officers and of
its council or executive committee ;
(c) its official address in the union;
(d) a copy of its rules setting forth its objects, the purposes to
which any of its funds may be applied, the subscriptions to
be paid by members and any benefits to which they may
become entitled, and the fines, levies and forfeitures to which
they are liable, and the manner in which any ballot shall be
conducted and controlled; and
(e) any other information desired by the registrar.
If the registrar is satisfied that the rules submitted are in accordance with the law, that in the.area in question there is no trade
union or organisation of employers already registered under the Act
which is sufficiently representative of the interests concerned, and
various other requirements of registration have been complied with,
a certificate of registration, i s given.
Where an organisation is dissolved or ceases to exist as such
the registrar may withdraw or cancel any registration certificate held
by such organisation and the name of the organisation is removed
from the register (section 16).
RIGHTS AND LIMITATIONS OF ACTION
Upon registration every trade union or employers' organisation becomes a body corporate, capable in law of suing or being sued and of
SOUTH AFRICA
267
acquiring or alienating property, movable or immovable. The
laws for the time being which govern the incorporation, registration
and winding-up of companies, the formation, registration, and management of friendly societies do not apply to trade unions or employers' organisations.
Action within the Trade Union
Under the Industrial Conciliation Act, trade unions and employers' organisations are at liberty to make provision in their rules for
the infliction of fines, levies and forfeitures on any of their members
in accordance with their rules, after such rules have been registered
under the Industrial Conciliation Act. They are also permitted to,
and in many cases do actually, use their funds for mutual aid. The
most common type of payments made are in respect of unemployment
through sickness or inability to obtain employment, in respect of
accidents, on account of strikes, for legal advice to members, and as
superannuation, death and funeral benefits.
External
Action
Political
. There is practically no legal restriction of political action by
trade unions or employers' organisations. They are at liberty to raise
funds either for the support of political bodies or for assisting or
running political candidates of their own. For a number of years the
majority of the trade unions contributed directly to the funds of the
Labour Party. In many cases the contribution was raised by levy on
members of a stipulated amount. Votes and' grants were made in
other cases to individual candidates, usually Labour Party candidates.
In recent years, however, with few exceptions, no contributions
have been made from trade union funds, nor have levies been raised
for political purposes in any shape or form.
Industrial
The rights and limitations of industrial action under the Industrial
Conciliation Act and the Riotous Assemblies Act require to be
described at some length.
Those laid down by the Industrial Conciliation Act appertain
to a great extent to the prevention and settlement of industrial disputes,
268
FREEDOM OF ASSOCIATION
and so fall into the sphere of conciliation and arbitration rather than
the right of association ; but since they are essential to an understanding of the position of trade unions in South Africa, they are
dealt with here.
The Industrial Conciliation Act makes provision (sections 2 and
3) for the constitution and registration of standing industrial councils
for any industry, trade or occupation, for a particular area, by agreement between any employer or employers' organisation and a registered trade union or group of registered trade unions. It also provides
(section 4) that when no industrial council exists, any trade union
or employers' organisation, or any number of employees or employers
considered by the Minister of Mines and Industries to be sufficiently
representative in that area of that undertaking, industry, trade, or
occupation may apply to the Minister for the appointment of a conciliation board for the consideration and determination of any dispute
at issue. Under section 12 it is declared unlawful for any employer,
employers' organisation, trade union or ocher person to declare any
strike or lock-out until (a) where there is an industrial council the
matter giving occasion therefor shall have been submitted to, considered and reported on by such industrial council ; (b) where there is
no industrial council and the matter giving occasion therefor is one
upon which a conciliation board may be appointed, it shall have
been submitted to, considered and reported on by a conciliation board.
Under section 10 also it is unlawful in any undertaking, industry,
trade or occupation (a) for any employer to make any alteration in
the terms of employment of any employee, or (b) for any employee
to make any alteration in the terms of his employment, unless one
calendar month's notice of such alteration or of such demand- has
been given. If, within fourteen days of the receipt by an employer
or employee of any such notice, the person receiving it refers the
subject matter of the notice to an industrial council or applies for the
appointment of a conciliation j board, which application is granted, the
alteration of terms of employment of which notice was given cannot
have effect until the matter has been determined or has been reported
on by the industrial council or conciliation board, as the case may be.
The Industrial Conciliation Act also makes provision for arbitration in certain cases. If a majority of the representatives of the two
sides of an industrial council or a conciliation board agree to go to
arbitration, the terms of the arbitration award are binding on all
parties represented on the industrial council or conciliation board which
SOUTH AFRICA
269
has agreed to arbitrate x , and any person b o u n d thereby who fails
to accept or carry out such award is guilty of an offence. I t is,
moreover, unlawful for any employer, employers' organisation, trade
union, or other person to declare any strike or lock-out in respect of
any dispute in which an agreement has been t h u s arrived at to go to
arbitration or during the period of operation of any award t h u s made.
W h e r e a dispute is between a local authority and its employees
upon work connected with the supply of light, power, water, sanitary,
transportation or fire-extinguishing services, arbitration is compulsory
in the event of failure to agree (section 11). Under section 21 provision is made by which the Minister of Mines and Industries may take
over and operate any service performed by a local authority which is
unable or unwilling to continue to perform such services by reason
of a stoppage of work or allied reason.
A n y person who is guilty of an offence under the Industrial
Conciliation Act for which no penalty is expressly prescribed is liable
to a fine not exceeding ^ 5 0 0 , or to imprisonment for a period not
exceeding two years, or to both such fine and imprisonment.
F r o m the foregoing analysis it will be seen that the " right to
strike " is definitely withheld from workers employed in certain
public utilities, as also from workers who have agreed to go to arbitration and are working under an arbitration award. I n other cases
notice of a proposed change of conditions must be given and recourse
must be had to the machinery of conciliation before a strike is legal ;
but beyond this there is n o restriction on strike action. T h e same
provisions apply to the employers' " right to lock-out ".
Picketing
Section 8 of the Riotous Assemblies Act, 1914, prohibits the
intimidation of persons, their relatives or dependants in relation to
employment. Under this Act, it is an offence to threaten or suggest'
the use of violence upon any person or any of his relatives or
dependants, or suggest injury to the property of such persons in order
to compel them to abstain from doing or to do in respect of employm e n t anything which they have a legal right to do. I t is an offence
to remain at or near the premises where any person resides or works,
1
Under section 9 the Minister has the right also to apply the common rule to other employers and emplo3-ees within an area.
•¿•70
FREEDOM OF ASSOCIATION
or persistently to follow him about from place to place; or to hide
tools or clothes or other property, or to behave towards him in a
disorderly manner by jeers or other like conduct.
Under the same Act intimidation or annoyance to compel anyone
to join or refrain from joining an organisation is prohibited'. It is
forbidden to trespass upon work premises with the object of endeavouring to induce any person unlawfully to cease work or unlawfully
to refrain from returning to work. The use of opprobrious epithets,
blacklisting, etc., is also prohibited under this Act.
CONCLUSION
The oustanding feature of the right of association in South
Africa is the compulsory registration of trade unions, and the regulation of trade union activities that goes with this registration.
The main consequences of registration, so far as they affect trade
union activities, are that the trade union becomes a body corpora ce
capable in law of suing and being sued ; that strikes and lock-outs
are illegal until the question at issue has been considered and reported
upon by an industrial council or conciliation board ; that notice must
be given a month in advance of proposed changes in wages or working
conditions and, if referred to an industrial council or conciliation
board, no change may be made until the council or board in question
has reported on it; that if the majority of an industrial council or
conciliation board are in favour of arbitration the dispute shall be so
settled, strikes and lock-outs on that score being thenceforward
illegal ; that in public utilities operated by local authorities arbitration is compulsory in the event of failure to agree ; and that the
Government may take over and operate such services if necessary.
The legislation on this question is so recent that it is impossible
to gauge its effect on the development of trade unionism. Serious
application of the provisions of the Industrial Conciliation Act, 1924,
is, in fact, only just beginning. So far no important legal decisions
affecting the right of association have been pronounced.
Bibliographical note. — There are no books known to the International Labour Office dealing specifically with the right of association in
South Africa. Data concerning trade unions are given in various official
publications, of which the South African Year Book is the most generally
useful.
AUSTRALIA AND NEW ZEALAND
INTRODUCTORY NOTE
The object of the following study is to examine the problem of
the right of association for trade purposes in Australia and New
Zealand. It is not forgotten that these two island areas should by no
means be confused, or that there are great geographical, historical,
economic and political differences between them. For the outsider,
however, the two countries have so many common features, particularly with regard to the development of their labour law, that it has
been thought expedient to deal with them together. It is hardly
necessary to mention that every- attempt has been made to bring out
fully the established differences between the two countries, although
the study pays more attention to Australia as the State of greater
international importance.
It should be added that what has been aimed at is not so much
an enumeration of laws and facts as a comprehensive survey of the
legal principles governing legislation on trade associations in the
two countries.
Freedom of Association
CHAPTER I
HISTORICAL INTRODUCTION — PRESENT POSITION
OF TRADE UNIONS
§ 1. — Australia
It will be recalled that after the English took possession of
Australia at the end of the eighteenth 'century, the part of it in
which there was any kind of settlement, namely, a small proportion
of the present New South Wales, was a convict settlement. Free
emigrants did not come until the beginning of the nineteenth century.
It was very usual to assign convicts to the settlers as labourers, who
naturally were forbidden to combine. It is reported that in 1822 a
convict incited his comrades to combine with a view to obtaining
higher wages and larger rations. He was sentenced to one month's
solitary imprisonment on bread and water, and 500 lashes, and had
to carry out the rest of his sentence in the convict settlement.
By the 'thirties there were traces of trade unions. In 1840 it is
said that there were about ten such unions with a membership of
thirty to forty persons each. But any further development was
hampered by the provisions of the Master and Servants Act
adopted in New South Wales, according to which a conspiracy to
raise wages or otherwise improve the conditions of labour, the
breaking of agreements by employees, etc., were regarded as strikes,
that is to say, punishable offences. In South Australia and Tasmania,
however, the workers were free to combine and strike.
The gold discoveries of 1851 meant an economic revolution in
Australia. The population streamed to the gold fields and the
number of immigrants increased to an extraordinary extent. It was
obvious that hardly anyone took any further interest in trade union
combination, and the early trade unions of the 'forties soon
disappeared.
Un the other hand, this increased immigration brought new blood
AUSTRALIA AND N E W ZEALAND
275
into the Labour movement, for the immigrants included several
political refugees who were in search of a land of freedom rather
than of gold, and their advanced ideas subsequently bore fruit in
social legislation. But the gold discoveries did not attract Europeans
alone ; several thousand Chinese came from the neighbouring
continent of Asia. There was frequent friction between whites and
coloured, and in 1S61 this even led to sanguinary persecution of the
Chinese. Here were the elements of the antagonism that subsequently
found expression in the immigration laws.
The chief influence of the gold discoveries on the trade union
movement was, however, indirect. The surface strata of gold were
soon exhausted, and the population flowed back to the towns. This
was the time when capitals such as Melbourne and Sydney began
to flourish. At the same time, the influx of immigrants produced
a serious housing shortage, from which the building trades benefited
in particular, and it is here that the first trade unions were to be
found. It is noteworthy that their demands did not relate to wage
increases — owing to the increase in the quantity of gold and the
shortage of skilled workers, wages were high — but to the eighthour day, and in fact they succeeded in achieving their aims by
agreements with the building contractors : in New South Wales in
1S55, in Victoria in 1S56, and in Queensland in 1858. These successes
naturally promoted the development of the trade unions, and thus
became a landmark for social development in Australia. The.anniversary of the establishment of the eight-hour day is still celebrated.
But the trade unions of the 'fifties and 'sixties were still small
in number, and most of them did not last long. These two decades
were a transition period, towards the end of which the special
economic conditions described above gradually disappeared ; there
was a return to agriculture and the pastoral industry, and manufacturing began to spread and gradually lost its craft character. The
nucleus of a proletariat was formed, which congregated in the capital
cities, and soon extended to the countryside owing to the rapid
monopolisation of landed property in the hands of a few.
Modern trade unionism appeared in the seventh and eighth
decades of the nineteenth century. The first industry in which the
movement now made progress was the capitalistically organised
industry of mining, particularly gold and coal mining. As early as
1S74 the individual associations of miners combined to form the
Amalgamated Miners' Association of Victoria, and the Mines Act of
276
FREEDOM OF ASSOCIATION
1877, which for the first time contained provisions for the protection
of the workers, may be regarded as one of their first successes.
In those days Australia was, even more than now, a country
of primary production, in particular of sheep farming, and the lack
of communications and the unstable and casual nature of the work
hampered trade union propaganda in rural districts. Here, too,
however, the workers, mainly sheep-shearers, were successfully
organised during the 'eighties ; and the very circumstances that had
for long checked their combination meant that these workers, who
were not governed by narrow trade interests, formed the first union
covering the whole of Australia, namely, the Australian Workers'
Union (1894).
Thus, by the last quarter of the nineteenth century, the workers
in the industries of the capital cities, in mining and in sheep-farming
formed the three principal trade union organisations of Australia,
and by 1885 there were about a hundred trade unions with approximately 50,000 members, for a total population of nearly 2,700,000.
The extension of the movement obviously increased the need of cooperation between the individual trade groups, even though the
separatism of the trades was a very strongly hampering factor.
In the so-called Trades Hall Councils or Trades and Labour
Councils, the various trade unions of the individual colonies had set
up joint bodies, and at the Intercolonial Trade Union Congresses they
discussed matters of general interest going beyond the interests of
the separate colonies. They were still far, however, from closer
co-operation.
Their principal activities were directed, in the first place, to
the improvement of conditions of work. Reference has already been
made to the earlier attempts at establishing the eight-hour day. These
efforts were made in all industries and colonies and were usually
successful. In South Australia the eight-hour day was recognised in
1873, in Tasmania, in 1874, and, finally, in Western Australia in 1896.
But in contrast with the 'fifties, with their exceptional economic
conditions, the wages struggle now formed the centre of trade union
activity. Numerous, and in the main successful, strikes may be
regarded as a sign of the growing extension and strength of the
trade union idea. Yet the unions had still to fight for recognition.
They were subject to the English Acts of 1824 a n ¿ x825 1 , under
1
Cf. Freedom of Association, Vol. II, Great Britain.
AUSTRALIA AND N E W ZEALAND
¿77
which trade unions, though not prohibited, remained unlawful.
Although the Australian trade unions, unlike the English, were not
exposed to persecution, yet they claimed that they should be placed
under the protection of the law on the lines of the English legislation
of the 'seventies \
The first colony to pass a Trade Union Act on the model of the
English Act of 1871 was South Australia. This Act was passed in
1876, but a Conspiracy Act of 1878 made breaches of contract,
damage to property, and conspiring to do illegal acts punishable
offences. In New South Wales, a similar Act was passed in 1881, but
it was not accompanied by a special Conspiracy and Protection of
Property Act. It was followed in 1886 by Queensland.
In Victoria the Legislative Council adopted a Bill in 1884 that
was so unfavourable to the trade unions that the existing state of
the law could hardly be said to have changed. It provided that
" nothing in this Act shall be construed to affect any rule of common
law or any statute which creates or punishes any offence ". It was
not until the Amendment Act of 1886, which contained the provision that membership of a trade union could not in the absence
of any other reason be sufficient to render the member liable to
prosecution for conspiracy, that the trade unions obtained protection
under the law.
Tasmania followed in 1S89 with two Acts, approximately
corresponding to the English Acts of 1871 and 1875.
Finally, in Western Australia, the youngest of the colonies, a
Conspiracy and Protection of Property Act was first passed in 1900,
followed in 1902 by a Trade Union Act after the introduction of an
Arbitration Act.
The trade unions arrived thus at legal recognition. They were
strong in number, and owing to the favourable economic conditions
of the 'eighties had recorded many successes. Bufbefore they could be
finally recognised by the employers themselves, they had to go through
several serious struggles. As has already been indicated, the Australian trade unions learned at an early date how to arrive at agreements
with employers on wages, hours of work and other conditions,
agreements which were observed in the main, but were not enforceable, and the employers sought when occasion arose, i.e. in times
of falling prices, to set themselves free and to establish their so-called
1
Ibid.
27&
FREEDOM OF ASSOCIATION
" freedom of contract ", or freedom to engage unorganised workers
and arbitrarily to fix conditions of employment. Organised workers,
on the other hand, refused to work with unorganised workers, in
order to maintain and improve their standards. Thus, at the
beginning of the 'nineties, when economic depression set in, there
were a large number of labour disputes, which were settled to the
disadvantage of the trade unions, not least owing to the unfavourable
general conditions.
In Melbourne in 1890 an association of mercantile marine officers,
which had in vain demanded increased salaries and reduction of
hours of duty from the employers, joined the Trades Hall Council
in Melbourne as a means of bringing more pressure to bear on the
shipowners. The latter refused, however, to enter into negotiations.
The result was a strike. In New South Wales the position was
complicated by the fact that the maritime unions supported the sheep
shearers' organisations which were fighting for recognition, and
together with the dockers boycotted wool shorn by non-union labour.
The strike extended to the whole of Australia, shipping came practically to a standstill, all the trade unions supported the strikers, both
financially and morally, and there was even a brief sympathetic
strike among the miners. But after over two months, the unions
came to the end of their resources and, faced with the strongly united
shipowners, who were supported by the State and public opinion,
they had to give up a struggle that had thrown the whole country
into a turmoil.
The result of this great strike meant a substantial increase in
the strength of the employers' position in their fight with the trade
unions. They sought everywhere to establish freedom of contract,
which often led the workers to stop working. Thus in 1891 there
was a strike of sheep-shearers in Queensland. The strikers sought
in vain to prevent the employment of unorganised blacklegs ; the
police, and even the military, were called out against them ; their
leaders were arrested and sentenced for " conspiracy ". The course
of events in New South Wales and Victoria was similar, and in the
metal industry and mining, too, the workers had to bend to the
will of the employers.
In 1892 there was a great strike in the Broken Hill Mines, the
cause being again the question of the recognition of the unions.
Here, too, the introduction of unorganised workers led to friction
with the union pickets, the result being that many workers were
AUSTRALIA AND N E W ZEALAND
279
sentenced to imprisonment for conspiracy. After several months the
workers, as in earlier cases, had to accept the employers' conditions
and to recognise their freedom to engage unorganised and organised
workers indiscriminately.
During the following years the economic depression reached its
climax, a number of undertakings collapsed, and many workers lost
their employment. It is therefore not surprising that the trade unions
became extremely weak, and many employers had already prophesied
their total collapse. However, they were too vigorous for this ;
instead, they tried to achieve in other ways the recognition they
could not obtain directly from the employers, by recourse to
" constitutional methods ".
It is generally recognised that the formation of Labour Parties
that took place during the 'nineties in the various Australian colonies
was an immediate result of the defeats of the trade .unions during
the disputes of those days. The Labour Party was organised in
close connection with the unions ; and owing to the generally
advanced programme of the Party, which attracted large numbers
of electors, and led to great electoral successes, the unions thus
acquired considerable influence over legislation. This influence was
strengthened when, in 1901, the six Australian colonies combined
^ under the name of States to form a Federal State, the " Commonwealth of Australia ", and the Labour Party acquired great importance in the Federal Parliament.
In the present connection, the interesting feature of this development is the legislation on arbitration and wages boards which was
introduced at the beginning of the twentieth century in the separate
States on the basis of the competence established by the Federal
Constitution (Article 51). This legislation forms the statutory basis
for the collective relations of workers and employers, and — here is
the essential point — it recognises the trade unions as the proper
representatives of the workers, and as such protects them. At the
same time, these laws reorganised the legal status of trade associations, of workers as well as of employers, so that nowadays the right
of association in Australia rests principally on the Arbitration Acts ;
in fact, the whole trade union movement is governed by arbitration
law. In these circumstances the Australian trade union movement
made extraordinary progress during the present century, once the
great economic depression had been overcome. Their growth is
indicated by the following figures :
280
FREEDOM OF ASSOCIATION
|
igo6
IQIO
ICI I
1912
1913
1
Total number of unions
Number of unions for
which membership is
available
Membership of these
unions
Estimated total membership of all unions
1914
Total number of unions 1
Membership of unions
712
302
482
573
621
710
253
442
542
621
710
147,049
277.O47
344,999
433,224
497,925
175,529
302,119
364,732
—
1915
713
1916
715
1917
747
1919
77¡
I92I
79É
1923
797
1924
791
523.271 528,031 546,556 564,187 627,68; 703,009 609,743
1925
743
795,722
1
I n these figures unions covering several States are duplicated ; they were retained,
however, to facilitate comparison with earlier years. The corrected figures for the last
four years are 382, 383, 376, 382.
T h e most important union is still t h e Australian W o r k e r s ' Union,
the nucleus of which consists of t h e sheep-shearers' organisations,
although many other groups belong.
T h e combination of the other associations h a s been sought for
a long time. Since 1927 there has been an Australasian Council of
T r a d e Unions, in which the Unions of the individual States or t h e
Commonwealth (e.g. miners) are represented, i n addition t o t h e
State Labour Councils. A s its n a m e shows, it is intended to include
N e w Zealand. While its ultimate aim is the socialisation of industry,
its immediate aims are to improve t h e organisation of labour by
converting the trade unions into industrial unions, unifying t h e trade
union movement, and centralising labour disputes 1 .
T h e central organisation of employers is the Central Council of
Employers of Australia. I n the individual States, there are
employers' associations a n d chambers of commerce a n d industry 2 .
1
Cf. MAULDON : " The Australasian Council of Trade Unions. "
Economic Record, Vol. IV, No. 6, pp. 107 et seq.
2
For further details, cf. INTERNATIONAL LABOUR O F F I C E :
national Labour Directory.
seq. Geneva, 1925.
Inter-
Part II, Employers' Organisations, p p . 21 et
AUSTRALIA AND NEW ZEALAND
281
§ 2. — New Zealand
A l t h o u g h the development of New Zealand, was similar to t h a t
of Australia in m a n y respects, there were nevertheless considerable
differences.
F o r long after their discovery the two islands t h a t form New
Zealand remained " N o M a n ' s L a n d ". T h e y did not come u n d e r
British dominion until 1840 or receive self-governement until 1856.
Settlement in the first d e c a ¿les W a s meagre. H e r e , too, the discovery
of gold m e a n t a large influx of immigrants. But it was not until t h e
'seventies that a conscious immigration policy led to a greater
immigration of industrial workers as well as of farmers and adventurers. I t was a m o n g these industrial workers t h a t the first trade
unions were formed, although as a rule they did not last long. A
Trade Union Act 1, copied from the English Act, dates from this
time (1878). A trade union movement proper w a s first formed in
the 'eighties of the nineteenth century, and in 1885 a T r a d e s and
Labour Congress was. convened by the Otago T r a d e s and L a b o u r
Council, the strongest trade union organisation of t h a t time. T h e
decisions of this Congress were of the highest importance, for they
formed t h e principal items in the programme of the Liberal P a r t y ,
which was at the same time the workers' party. But as in Australia,
conscious political action by the trade unions was not taken until
they h a d found t h a t " industrial methods " (i.e. disputes) were
prejudicial. I n New Zealand, too, the trade unions, which had
declared a sympathetic strike in support of the Australian strikers
in 1890, were beaten, b u t in the same year t h e Liberal P a r t y obtained
a majority in the General Election and six trade union leaders entered
Parliament as its supporters '. I n 1894 this newly elected P a r t y
passed t h e Arbitration Act, which became the model for t h e Australian Acts, and, although frequently amended and revised, most
recently in 1925, created the foundation in New Zealand for t h e
law on trade associations. As in Australia, trade unions made great
progress in the following years, although owing to the agricultural
n a t u r e of the country, their importance w a s much less t h a n that of
the Australian unions.
1
Amended in 1908.
It was not until 1917 that a Labour Party proper separated from
the Liberal Party, which represented the interests of small farmers in
particular. This Lahour Party, however, has in no way attained the
influence of its Australian counterpart.
1
282
FREEDOM OF ASSOCIATION
In 1900, thirty-seven unions were registered under the Trade
Unions Act. The following figures show the unions registered under
the Arbitration Act \
CLASSIFICATION ACCORDING TO NUMBER OF MEMBERS
Year
1901
1921
1923
1927
Under
50
99
139'
144
127
100200
50100
43
3°
100
70
75
74
Si
84
ïoo-
30c500
300
5001,000
Number
of
Unions
19
36
34
27
5
28
41
39
4
28
25
25
1,0002,000
2,0003,000
1
IT
II
20
3
3
4
3,000 !
and
over
Total
3
418
415
401
202
I
1
1
Membership
1901
1921
1923
1927
2,759 3,018 4.032
4.147 7,075 9,708
3,738 5.5S2 10,467
3,607 5.95 1 10,213
4,875 2,073 2,520 1,651
9,182 11,066 18,527 14,580
8,162 16,365 17,99° 15,440
6,28a 15,094 16,723 24,896
2,900
23,768
7,433 1 6 , 0 0 1 97,7!9
6,916 9,778 94,438
9,190 9 , « 7 101,071
PROPORTION OF UNIONISTS TO THE TOTAL NUMBER OF WAGE EARNERS
Year
1901
1906
1911
1916
1921
1926
(March)
(April)
(April)
(Oct.)
(April)
(April)
Total wage |
earners
224,346
269,059
304,272
302,l6l
370,692
414,673'
-
Y
'
1900 (Dec.)
1905
1910
1916
1920
,,
!925
Number of
workers 011 rolls
of registered
unions
17,989
29,869
57.09 1
71,587
96,350
101,071
Percentage
• 8
11
!9
24
26
24
—
The principal federations are the New Zealand Alliance of
Labour, and the Trades and Labour Councils Federation ~. The
strongest unions are to be found on the railways, in the hotel indus1
The New Zealand Official Year Book, 1929, p. 840.
Cf. International Labour Directory Part III, Workers' Organisations, p. 129. Geneva, 1925.
2
283
AUSTRALIA AND N E W ZEALAND
try, the frozen meat trades, the clothing industry, the building trades,
and among sheep-shearers \
According to an estimate, the distribution of the trade unionists
by occupation was as follows in 1925 " :
Industry
Transport
Domestic and personal
services
Primary production
Commerce, finance, public administration, liberal • professions, and
miscellaneous
Total
1
Estimated' number I
of unorganised
'
workers J
I
Total
number or
workers
Number
of
unionists
107, Ou J
54.5°°
51,00a
26,900
56,0C0
2/,6oO
39,000
78,000
7,Soo
6,100
31,200
71,900
i
i
:
'
I
1
I
123,500
8,600
402,000
100,400
114,900
301,600
Includine non-payine unionists (about 20.000).
T h e principal employers' association is the New Zealand
Employers' Federation 3 .
T h e number and membership of the employers' associations was
as follows 4 :
Year
Number
Membership
1917
1921
Ï45
141
1923
1927
136
136
5.390
5.336
5.4S3
5.072
1
Report of the Department of Labour, 192S.
- According to the Canterbury Chamber of Commerce
Bulletin
No. 27, quoted in the Report of Proceedings of the National
Industrial
Conference, 1928, p. 276.
3
For further details cf. International Labour Directory, Part II,
P- 1544
According to the New Zealand Official Year Book, 1928, p. 813 ;
1929, p. 838.
C H A P T E R II
PRESENT LEGAL STATUS
§ 1. — Sources of the Law
T h e fundamental measures governing trade associations are to
be found especially in the Arbitration A c t s . F o r Australia, the
most important is t h e Commonwealth A c t on Conciliation a n d Arbitration of 1904-1928 1, which applies to 656,132 persons among
795,722 organised persons 2 . T o this should be added t h e Arbitration
A c t s for t h e individual States : for South Australia, t h e Industrial
Code of 1920 as amended in 1 9 2 6 3 , for Western Australia t h e
Arbitration A c t of 1912 as amended i n 1925 4 , a n d for Queensland
the Arbitration A c t of 1916 as amended in 1923 °.
I n N e w Zealand t h e 1925 Arbitration A c t applies 6 .
I n N e w South Wales, on t h e other hand, t h e Arbitration Act 7 ,
so far as t h e workers are concerned, links u p with t h e 1881 Trade
Unions A c t already mentioned, and in Victoria a n d Tasmania, where
there are n o Arbitration Acts, b u t W a g e s Boards Acts, t h e Trade
Unions Acts form the basis of legislation on this question. A s
regards these Acts, reference m a y b e made to similar legislation
in Great Britain 8 . I n this report, account will be taken only
of t h e Arbitration Acts, particularly of t h e most important, both for
Australia and for purposes of international comparison,. namely, t h e
1
INTERNATIONAL
LABOUR
OFFICE :
Legislative
Series,
1928,
Austral. 2.
2
Figures for 1925.
3
Legislative Series, 1926, Austral. 1.
4
Ibid., 1925, Austral. 12.
5
Ibid., 1923, Austral. 1. ; 1924, Austral. 2 ; 1926, Austral. 6.
6
Ibid-, 1925, N. Z. 1. This Act was amended in various respects by
the Acts of 5 December 1927, 19 September 1928, and 9 October 1928.
The Trade Unions Act of 1908 has now lost all importance.
7
Act of 1912 as amended in 1926. Legislative Series, 1926, Austral. 7.
8
Cf. Freedom of Association, Vol. I I , Great Britain.
AUSTRALIA AND NEW ZEALAND
285
Commonwealth Arbitration Act. I t may be mentioned t h a t in 1927
the trade unions registered under this Act comprised 84.5 per cent.
of the members of all Australian trade associations.
§ 2. — The Legal Existence of Trade Associations
REGISTRATION
T h e condition for the legal existence of a trade association is
its registration. T h i s does not mean that . unregistered trade
associations are prohibited.
B u t only the registered unions are
entitled to the rights established by the Act, in particular the
right to appear before the arbitration authorities.
For this reason the Acts deem only registered associations to
be industrial unions or o r g a n i s a t i o n s 1 . I n actual fact there are
hardly any trade unions in Australia that are not registered. T h e
registration- of the trade union may therefore be considered in practice
as equivalent to its legal existence 2 .
I n N e w Zealand, however, the fact that many organisations have
not been registered, or have allowed their registration to lapse, led
to the adoption of a special Labour Disputes Investigation Act ; but
this Act is now of little importance.
Conditions
of
Registration
T h e provisions are in the main the same for employers' and
workers' organisations,. unless there has to be a difference in the
nature of things.
I n either case the association must consist solely of workers or
employers. I n N e w South Wales, as already indicated, they must
be trade unions within the meaning of the T r a d e Union Act. I n
New Zealand and Western Australia this is not necessary.
1
Cf. the definition of an " organisation " in the Commonwealth
Arbitration Act (C.A.A.), section 4, and of an " industrial union " in
the Arbitration Act (A.A.) of New Zealand, section 2, of Western
Australia, section 4, etc.
2
According to section 62 of the C.A.A., the Governor-General may,
on the recommendation of the Chief Judge of the Arbitration Court, by
proclamation declare that the provisions of the Act apply to any association whether it is registrable under the Act or not. This proclamation
is equivalent to registration. If the organisation in question fails to
adopt rules, the Arbitration Court may apply any rules to it (section 63).
286
FREEDOM OF ASSOCIATION
T h e trade unions must be bona-fi.de organisations of workers.
W h e t h e r they are considered to be so depends on two factors in
particular.
T h e union must have independent existence and
work independently for the workers, its members. I n addition, it
m u s t be a " bona-fide industrial union ", t h a t is to say, w o r k under
the system of arbitration and not aim at enforcing its demands by
" job control " or " direct action ", in other words, violent means 1.
T h e definition of employers and workers is not the same in the
different States. Intellectual workers, like journalists, are deemed
to be workers 2 . On the other hand, civil servants are often excluded
from the definition of workers (for instance, in Western Australia,
b u t not in New South W a l e s ) . Workers in the service of the Commonwealth, except persons employed in the A r m y and Navy, are
covered by the Arbitration (Public Services) Act of 1911, under
which they may form special associations, provided that these
comprise at least one-fifth of all the persons concerned. T h e y may
refer any labour disputes to the Commonwealth Arbitration Court.
Associations must have a m i n i m u m membership, which varies
according as they are employers' or workers' organisations. F o r an
employers' association a specific minimum for the number of workers
employed (one hundred in the Commonwealth, fifty in Queensland
and New South Wales, twenty "in South Australia and fifteen in
Western Australia) or of members (three in New Zealand) is
prescribed. I t should be added that individuals and companies that
satisfy this condition are usually treated as employers' associations.
W o r k e r s ' associations in Australia must have a corresponding
minimum membership, equal to the minimum number of workers
employed by the employers (in New Zealand the minimum is
fifteen3).
T h e s e employers or workers, as the case m a y be, m u s t belong
to a given industry, t h e . definition of which is fairly wide 4 . I n
Western Australia, which is not yet industrialised, it is possible for
persons belonging to different industries to combine to form an
industrial union if this is considered expedient for local reasons, or
1
An instructive case was that decided in New South Wales in 1926
(Industrial Arbitration Reports, New South Wales, p. 13S).
2
Cf. the " Journalist's case " cited in QUICK : Legislative Powers
of the Commonwealth and the States of Australia.
Melbourne, Sydney,
1919.
• A membership of five is sufficient, however, if this comprises 25 per
cent, of the workers in the industry in that district.
4
Cf. QUICK, op. cit.,
p. 562.
AUSTRALIA AND NEW ZEALAND
287
if it is proved to t h e satisfaction of t h e registration authorities that
the members have identical or kindred interests or that their occupations have certain characteristics in common or their interests are
" of like composite character ".
T h i s wide definition enables t h e unions to organise according
to trades or industries as they choose, this point being settled by
their rules. A s is well k n o w n , t h e movement is still very scattered,
but organisation by industries h a s made progress, not least under
the influence of the Commonwealth Arbitration A c t .
T h e association must further be adequately organised ; a
temporary assemblage of persons may not be registered 1 . T h e
Arbitration Acts contain n o provisions-concerning t h e aims that trade
associations m a y follow, so that political aims are allowed. T r a d e
unions may levy contributions for political aims or t h e r u n n i n g of
labour papers, but members w h o decline to pay such contributions
must be exempted 2 .
T h e N e w South Wales A c t , which links u p with t h e T r a d e
Union Act, modifying it in accordance with arbitration legislation,
prescribes that a trade union within t h e meaning of t h e A c t m a y apply
and use its property for any lawful object authorised by its rules,
and therefore also for political objects, provided that in this case
the rules lay down that the p a y m e n t s in furtherance of such objects
are made out of a separate fund, t h a t contribution to this fund i s
not a condition of membership, a n d that a member who does n o t
contribute to the fund suffers no disability for this reason. T h e term
" political objects ", according to t h e definition of t h e Act, comprises
in t h e main everything connected with elections to Parliament and
public offices (section 52 A).
I n this respect t h e Crimes A c t of 1926, in force t h r o u g h o u t
Australia, contains limitations (sections 30 et seq.), according to
which associations aiming at t h e overthrow by force or violence of
the Constitution or the destruction of property are deemed to b e
" unlawful associations " 3 . T h e same applies to associations which
are affiliated to organisations of this kind. T h e penalty for members
of such associations is imprisonment, as also for persons w h o b y
speech or writing advocate t h e pursuit of such ends. If t h e person
1
2
Cf. the case cited in QUICK, p. 573.
HEATON : Modem Economic History, p. 175. Adelaide, 1922.
3
Immigrants belonging to associations with aims of this kind may
not be admitted to Australia (section 8 A of the Immigration Act).
288
FREEDOM OF ASSOCIATION
in question was not born in Australia h e is deported. T h e giving or
soliciting of contributions for unlawful associations is also punishable.
T h e publications of such associations may not be printed a n d
distributed or transmitted by post. T h e i r property is confiscated.
A trade association m u s t have rules, which must include certain
m i n i m u m regulations concerning organisation, officials a n d their
appointment 1. T h e 1928 amendment to the Commonwealth Arbitration Act, in particular, introduced innovations in this field which
are discussed in more detail below.
A n important principle of Australian and New Zealand legislation
is t h a t as a rule only one trade association m a y be registered for
each industry 2. T h e reason is that if the movement were too much
split u p , the object of representing trades by organisations would be
nullified, a risk that is particularly great in Australia and New
Zealand. Section 59 of the Commonwealth Arbitration Act accordingly provides :
The Registrar shall, unless in all the circumstances he thinks it
undesirable so to do, refuse to register any association as an organisation
if an organisation to which the members of the association might
conveniently belong has already been registered.
Similar provisions are to be found also in the Arbitration Acts of the individual States. I n New Zealand the law
expressly provides t h a t the needless multiplication of industrial unions should be avoided ( A . A . , section 11).
Furthermore, an existing union may protest against the registration of another union. On the other hand, an appeal may be lodged against
the decision of the Registrar (New Zealand, South Australia, Western
Australia).
I n Queensland, if there is already a trade union for an industry
and a second is founded, the two unions m a y be combined by the
registration authorities in such a way that they have joint rights
u n d e r the Arbitration Act. If there is a difference of interests,
1
Cf. Commonwealth Arbitration Act, Schedule B ; South Australia
Industrial Code, Schedule II ; Western Australia Arbitration Act,
section 7, subsection 3.
3
It should further be mentioned that this principle has to some
extent been abused in that " works unions " have hampered the registration of ordinary trade unions. The most well-known case is that of the
Machine Shearers' Union, which for several years prevented the registration of the Australian Workers' Union. On the subject of the more recent
and stricter regulations, cf. above p. 286, note 2.
AUSTRALIA AND N E W ZEALAND
2
§9
however, the separate unions must be registered separately. T h e
same applies in the case of differences in political views 1.
T h e formal condition for registration is the making of an application. T h e application must be handed to tEe competent Registrar.
I t must be drawn up in the prescribed form, and in particular, it
must be accompanied by the rules, which are examined from the
point of view of agreement with the provisions of the law. I n most
cases it is also provided that all existing unions must be notified of
the application, to enable them to raise any objections. T h e union
is placed on a special register of industrial unions, after which it
receives a certificate of registration serving as evidence of the registration and t h a t the regulations of the law have been complied with.
Effects
Effects with respect
to Outside
of
Registration
Relations
Registration makes a trade association a body corporate with all
the attendant rights. I n particular, it acquires power to conclude
collective agreements and appear before the arbitration authorities.
I n Western Australia the legal standing of a registered association
is specifically established (A.A., section 148) :
No industrial union or association duly registered under this Act
shall . . .
be affected by the provisions of any Act of the Imperial
Parliament against corresponding societies or unlawful combinations in
respect of any matters done in compliance with the registered rules of
such union or association.
A registered association also enjoys other special protection under
the law. I t s name is protected ; no other association may take t h e
n a m e of a n existing association.
F u n d a m e n t a l importance attaches to those provisions of the Arbitration A c t s that are intended to protect workers' organisations
against the attacks of employers and to protect employers'
organisations against the attacks of trade unions. Section 9 of the
C.A.A. r u n s :
An employer shall not dismiss an employee or injure him in his
employment or alter his position to his prejudice by reason of the
circumstances that the employee :
1
Arbitration
pp. 45 et seq.
Reports (New South Wales, 1927), Vol. XXVI, Part I,
Freedom of Association
ti
290
FREEDOM OF ASSOCIATION
(a) is an officer or member of an organisation or of an association
that has applied to be registered as an organisation, or . . .
(d) being a member of an organisation which is seeking better
industrial conditions, is dissatisfied with his conditions.
Similarly, a worker may not cease work in the service of h i s
employer by reason of the circumstance that the latter is an officer
or member of a registered organisation or one applying for
registration.
Contravention of this provision is punished by a fine, which is
twice as high for an employer as for a worker. T h e Attorney-General
may direct that the fine may be paid direct to the person injured by
the offence. If, in addition, the person w h o committed the offence
was at the time an officer or a member of the committee of management of an organisation or a branch of an organisation, and the
offence was t h a t of doing a n y t h i n g in t h e n a t u r e of a strike or lockout, the organisation m a y be required to pay part of the fine.
I n N e w Zealand and New South Wales, on the contrary, this
protection is not extended to employers 1.
I t is a well-known fact that a protective measure of this k i n d
is very difficult to carry out in practice, since the decisive reason
for the offence, namely, the intention to injure on account of belonging to a trade association, may easily be concealed, and therefore in
most cases cannot be proved. T h e Australian and New Zealand Acts
accordingly provide that in the proceedings the defendant will be
deemed to have acted for this reason if all the other facts and
circumstances constituting the offence are proved. T h u s it lies upon
the defendant to prove that he was not actuated by the reason alleged.
T h e extent to which trade associations enjoy a general form of
State protection under the other provisions of the arbitration laws,
i.e. under the statutory system of arbitration and collective
agreements, will be examined later.
Reference should^ however, be made here to a particular case in
point, as it constitutes the most effective protection for the trade
unions — associations of employers do not come into question here —
namely, the clause concerning preferential employment of organised
1
In New South Wales the protection of the worker is extended even
further, for if he absents himself from work on account of his duties as
a member of an industrial union and the employer has unreasonably
refused leave, he cannot be dismissed. If he has been dismissed, the
Court may order his reinstatement and the pa3'ment of the wages lost.
AUSTRALIA AND N E W ZEALAND
20 T
workers contained in arbitration awards a n d collective agreements.
The* protection of t h e trade unions against t h e competition of unorganised workers is precisely the central problem of trade union law.
A s was shown above, it was this that gave rise to t h e great strike of t h e
'nineties. I t w a s therefore only n a t u r a l t h a t when t h e workers
sought to achieve their aims by " constitutional methods ", they
demanded t h e inclusion of a protective provision of this kind in
the enactment of new legislation, while at t h e same time t h e
employers vigorously opposed these demands 1 . According to t h e
side which had t h e majority in t h e Parliaments, t h e preferential
employment clause was either tacitly passed over or introduced in
a more or less rigorous form. T h e details cannot be described here,
but t h e following summary m a y be given.
T h e Wages Board Acts (Tasmania and Victoria) do n o t include
such a clause. T h i s is true also of t h e Arbitration Acts of South
Australia and Western Australia. I t is t r u e t h a t t h e Queensland Act
contains n o provision on this point, b u t only a year after its adoption
(1916) t h e Arbitration Court in practice made use of its wide powers
under t h e A c t t o grant organised unionists preferential rights b y a
general decision, and this principle h a s subsequently been applied
in practice on several occasions by t h e Queensland authorities. T h e
position is t h e same in New Zealand.
A s early as 1901 New South Wales h a d introduced absolute
preferential employment for unionists, that is t o say, employers
were b o u n d to engage their workers solely from t h e unions specified
in t h e arbitration award. U p t o 1905 even, employers h a d to notify
the unions, except in urgent cases, when they wished to engage
workers. T h i s procedure, however, was considered to go too far by
the Supreme Court, a n d in 1908 t h e whole system w a s set aside. I t
was replaced by that of " normal " preferential employment, that is
to say, other things being equal, unionists were to have priority
over non-unionists. T h e 1926 Act, however, again contained t h e
clause in its absolute form which w a s strictly applied by the
arbitration authorities 2 .
1
Not unconditionally, however, in the case of the New Zealand
Farmers' Union, to judge from its declaration at the New Zealand Agricultural
Conference
in
1928.
(NATIONAL
INDUSTRIAL
CONFERENCE :
Report of Proceedings, p. 152.)
2
Cf. the case cited in Arbitration Reports, 1916, p . 364, in which the
employer had to notify the trade union of an engagement, to dismiss
non-unionists, and assist workers belonging to the organisation in
question.
292
FREEDOM OF ASSOCIATION
The Amendment Act of 1927 finally restored the principle to its
" normal " form, and expressly prohibited the arbitration authorities
from establishing a preferential clause by which membership of a
trade union is made a condition for the engagement or continued
employment of a worker, or the placing in employment of workers is
entrusted to the trade unions alone (Amendment Act of 1927,
section 4).
According to the Commonwealth Arbitration Act (section 40)
the Court may direct that, other things being equal, preference shall
be given to' organised workers. It is bound to take such action if, in
its opinion, " it is necessary for the prevention or settlement of the
industrial dispute, or for the maintenance of industrial peace, or
for the welfare of society ". In these circumstances, however, the
arbitration awards often prescribe that the entrance fees charged by
the privileged trade unions may not exceed a certain amount 1 , and
that any worker must be admitted. In addition, the organisations
must often undertake to provide all the labour asked for. This has
meant that in many industries the unions are in practice responsible
for placement. In connection with the great dock strike of 1928,
however, a Transport Workers Act was passed, under which the
Governor-General was empowered to regulate employment in the
docks by Order, particularly questions of engagement and dismissal,
and to make employment dependent on a permit. This set aside
trade union control over the engagement of workers in this veryunsettled trade, and the Act has therefore been vigorously fought by
the unions.
The weakest form of protection given to the trade unions is that
under the clause " not to discriminate ", that is to say, when engaging and dismissing workers, not to make distinctions unfavourable
to the unions ; in other words, any kind of victimisation is prohibited. The fact that victimisation occurs, particularly when employers
are trying to set aside the unions, has led the arbitration authorities,
however, to include a preferential employment clause in their awards
as a general rule, so as to safeguard the arbitration system, which
depends on the existence of trade associations. But in general, it
may be said that the Commonwealth Arbitration Court is particularly cautious in granting the preferential employment clause 2. In
1
This is expressly provided in the New Zealand Act (section 143).
* Cf. HIGGINS : A New Province for Law and Order, pp. 16 et seq.
London, Bombay, Sydney, 1922.
AUSTRALIA AND N E W ZEALAND
-93
New Zealand, on the contrary, preferential rights appear to be
granted as a rule if the members of the. association constitute the
majority of the workers concerned, unless such a measure appears
inexpedient owing to special conditions, e.g. the difficulty of finding
workers in remote districts *.
Protection under the law does not mean that a registered
association is not subject to a certain degree of supervision by the
authorities.
The association must regularly submit to the competent authority
reports on its membership, changes in its officers, amendments of
its rules, etc. Any amendment of the rules must be registered. Its
accounts must be open to the authorities. This financial control was
rendered more strict by the ig2S Amendment to the Commonwealth
Arbitration Act. The accounts must be audited once a year by a
qualified person. If an association fails to appoint such qualified
person, the Arbitration Court ma}7 appoint an official auditor at the
expense of the association. The Registrar may at any time require
a special audit of the accounts of the association, for which purpose
a special auditor may be employed (C.A.A., section 72 A ; cf. also
New Zealand, A.A., section 144). Furthermore, under the provisions of the 1928 Act the authorities can intervene to a much
greater extent than before in the inner activities of associations.
Thus, under sections 56 A et seq., any ten members of the
association may, when a vote is taken for the election of the committee of the association or any other election or in respect of any
resolution, demand that the vote be taken by secret ballot. If the
demand is not acceded to, the Arbitration Court may organise the
taking of a secret ballot. Furthermore, any ten members may make
a direct application for such procedure. Upon complaint by any
member of an association, the Court may make an order directing
the competent authority of the association to carry out any of its
rules. Contraventions are severely punished ".
The introduction of this provision has aroused vigorous opposition
among the trade unions, which not only criticise the complication
and costliness of the voting procedure, but above all, fear the risk
of abuse by unauthorised persons, which it is difficult to obviate 3.
1
Cf. Report of the Department oj Labour, 1927, p. 6.
* The position is the same in Queensland.
3
Cf. O. de R. FoENANDER : " The New Conciliation and Arbitration
Act in Australia. " International Labour Review, Vol. XIX, No. 2,
2Ç4
FREEDOM OF ASSOCIATION
Effects on the Association
itself
• The rules of a registered association are legally binding upon
members (C.A.A., section 56 ; New Zealand, A.A., section 12). The
rights and obligations of the members are accordingly defined in
the first place by the rules, and any claim under the rules may be
enforced by judicial proceedings, unless the rules provide otherwise,
for instance, by appointing an arbitration authority to deal with
disputes between members (C.A.A., sections 68-69). Here too,
however, the law imposes certain limits ; in particular, the freedom
of the individual, that is, the member, is protected against excessive
pressure on the part of the organisation.
The rules may not be " tyrannical or oppressive " (C.A.A., section 58 D) ; they must provide, reasonable facilities for the admission
of new members and may not impose unreasonable conditions for the
continuance of membership (Western Australia, A.A., section 27
(i) c) ; in particular, they may not impede members from observance of the law or an arbitration award. If the rules are in
contravention of these provisions, the registration of the association
may be cancelled (e.g. in South Australia and Western Australia),
or else, as under the Commonwealth Act, the injured member may
merely apply for the disallowance of the rule in question. The
Court has power to disallow the rule, thus rendering it void.
In New South Wales there is an express provision in the case
of trade unions (within thè meaning of the Trade Union Act)
registered under the Arbitration Act, that all persons who are, by
the nature of their occupation or employment, of the class of which
the trade union is constituted, and who are not of general bad
character, should be entitled to be admitted to membership of the
union, to remain members thereof, and to enjoy all advantages of
membership so long as they comply with the rules of the union.
Disputes are settled by the Arbitration Court, which also has power
to annul the rules of the union if it considers them unreasonable
(A.A., section 52 I). In New Zealand, the amount of the entrance
fee is fixed by law, and any levy on members must be agreed to by a
majority vote (A.A., section 143). No member may be required
to give more than three months' notice of his intention to leave the
association (section 5, subsection 1, c (viii) ).
pp. 151 et seq. He points out incidentally that the members have mereh" to
refuse to vote b}- general understanding to make the application of the
provisions farcical.
AUSTRALIA AND NEW ZEALAND
2
95
If a n officer of an association fails to observe any of its rules, any
member m a y complain to t h e Arbitration Court, with the judicial
effects already mentioned (C.A.A., section 58 E) \
A similar
provision is in force in New South Wales ( A . A . , section 52 C).
On the other hand, the Arbitration Acts give to the associations
remedies against members who do not comply with the necessary
discipline of the association.
The Court may, on the application of any organisation . . .,
order that any member of the organisation shall cease to be a member
thereof from a date and for a period to be named in the order. (C.A.A.
section 70.)
Subject to the observance of certain formalities intended to
safeguard the rights of members, t h e committee of an organisation
may suspend or expel a member from membership if he commits a
breach of the Arbitration Act, or any act rendering the organisation
liable to penalty (section 70 A, subsection 1 ) . If the suspended or
expelled member is an officer of the association, he immediately
ceases to hold his office and becomes incapable of holding office
in that association. H e has a right, however, to appeal to the
Arbitration Court, which may remove his incapacity
(ibid.,
subsection 2 ) .
Similarly, at the request of a member suspended or expelled
from an association otherwise t h a n b y order of the Court, the latter
may order his readmission if this is considered just (section 70 B).
Several of the Acts, however, restrict the right of resignation
and exclusion in cases when arbitration proceedings are in progress,
e.g. W e s t e r n Australia, A.A., section 29. T h e 1928 Act amending
the Commonwealth Arbitration Act, on the other hand, repealed the
earlier provision of this kind on the ground that it would otherwise
be practically impossible to resign from a n association or exclude a
member, since large unions nearly always have some arbitration
proceedings before the Court, either in the matter of an award or
on application for interpretation of an existing award '.
A provision characteristic of Australia is that contained in section 50 of the Commonwealth Arbitration Act, under which the
Arbitration Court has full discretion to exclude a person from
membership of an organisation, deprive him of his rights against the
1
2
Cf. above, p. 293.
O. de R.
FOEXANDER, loc. cit.,
p. 168.
2Ç6
FREEDOM OF ASSOCIATION
organisation, or remove him from any office he holds in t h e organisation if h e contravenes t h e Arbitration Act, and, in particular, is
guilty of wilful default in compliance with an arbitration award. I n
effect, he loses his capacity to belong to an organisation.
CANCELLATION OF REGISTRATION
Conditions
jor
Cancellation
An association m a y at any time apply for the cancellation of its
registration. I n several laws, however, this right is restricted in
cases of pending arbitration proceedings (New Zealand, A . A . , section 22 a ) . I n New South Wales an application for cancellation is
not allowed so long as an arbitration award or collective agreement
is in force for the association (A.A., section 9, subsection 2 ) .
Another effect of t h e right of supervision by the Arbitration
Courts is that in specified cases they m a y order the cancellation of
the registration of t h e association. T h i s is not so, however, under
the New Zealand Arbitration Act. As a rule, the Australian acts
enumerate the cases in detail, but at the same time they contain a
general clause. T h e cases are : when the reasons for registration were
assumed erroneously or disappear subsequently (membership falling
below the prescribed figure) ; when the rules are against t h e law 1
or the activities of t h e association are contrary to the law, i.e. the
rules are n o t observed ; w h e n its accounts are irregular ; or, which
is more important, when the orders of the Arbitration Court are not
complied with, i.e. when a dispute is organised. T h e Commonwealth
Arbitration Act, in particular, goes far in this latter respect by
declaring cancellation admissible even when an association neglects
to exercise its powers over its members with a view to m a k i n g t h e m
observe the awards, or when members of the association repeatedly
or systematically commit offences against the Act, or fail t o comply
with an order ór award of the Court (section 6o, subsection 1 (i) (j)
and (fe)).
T h e decision as to cancellation is within the discretion of t h e
Court. Some of the laws provide for conditional cancellation, or
cancellation for a specified period (e.g. Western Australia, A . A . ,
section 30).
1
rules
In this case the Court may first order the association to amend its
AUSTRALIA AND N E W ZEALAND
297
In New Zealand, the registration of a workeis' industrial union
which has been convicted of entering into an unlawful dispute may
be suspended for a period of not more than two years. The power
to suspend is entrusted to the Court responsible for the conviction,
and an appeal against its decision is allowed.
Effects of Cancellation
The cancellation of registration does not mean the dissolution
of the association. It means that the association loses its capacity
as a body corporate, conferred on it by registration under the
Arbitration Act. As an association it remains untouched ; it simply
loses the rights enumerated above, and it must continue to fulfil
existing obligations arising out of penalties or other orders or decisions of the Courts. As regards arbitration awards and collective
agreements, the provisions of the different Acts are not the same.
Under the Commonwealth Arbitration Act, after cancellation an
.organisation and its members cease to be entitled to the benefits of
any arbitration award, and, subject to any order to the contrary
made by the Court, an award ceases to have any effect (C.A.A.,
section 60, subsection 5). Under the Acts of the various Australian
States, the cancellation — in New Zealand voluntary cancellation —
does not set the association or its members free from their obligations
under an existing arbitration award .or collective agreement (e.g.
Western Australia, A.A., section 28). If in New South Wales the
registration of an association has been cancelled on the ground of
its having instigated to or aided any other association in an unlawful
labour dispute, the Arbitration Court may also cancel any award or
industrial agreement relating to the association (A.A., section 10).
In New Zealand, during the period of suspension, any arbitration award is also suspended if it applies to the conditions of
employment of the persons concerned, in addition to which no new
association or industrial union of workers may be registered in the
place of the old organisation (A.A., section 127).
DISSOLUTION
As a rule the Arbitration Acts do not contain provisions for the
dissolution of associations. The Arbitration Courts are thus able to
cancel the registration of associations but not to order their dissolution. Only the New South Wales Act, which, as already men-
298
FREEDOM OF ASSOCIATION
tioned, is based on the Trade Union Act of 18S1, provides in section
52 G that a trade union which fails within the prescribed time to
pay a penalty imposed by the Court will be wound up. For this
purpose the Court appoints a receiver of the assets of the union and
distributes the remainder of its property " amongst the persons,
including members of the union, who appear to be entitled to
the same l ".
The voluntary dissolution of associations is governed by their
rules.
AMALGAMATION OF ASSOCIATIONS — FEDERATIONS AND BRANCHES
With regard to structure,, the associations, as already shown,
are free. They have therefore full discretion to decide whether
they consider it best suited to their ends to amalgamate in a single
association, or to join in a federation, just as it is also left to their
discretion to extend with regard to locality or occupation and to
found branches according to need in different localities. The Acts
.contain at most provisions as to procedure.
If registered associations amalgamate, the individual registrations
are cancelled and the new association is registered separa tel}'.
Existing rights and obligations are not affected by this.
Under the Acts of New Zealand and Western Australia (sections
26 and 31 et seq. respectively) federations of associations may be
registered like the associations themselves and become subject to
the provisions applying to the latter.
According to the definition of the Commonwealth Arbitration
Act, " associations " are unions, branches of unions or associations,
or bodies composed of representatives of employers or employees,
From the legal standpoint therefore, no distinction is made between
trade associations, federations and branches of such organisations.
§ 3. — The Activities of Trade Associations
It has already been shown that the Arbitration Acts form the
foundation of trade union law. It is therefore not surprising that
these Acts (and the Wages Board Acts in those States where such
legislation is in force) also have a decisive influence on that part of
the work of the associations designed to improve conditions of labour.
1
"With respect to unlawful associations within the meaning of the
Crimes Act, see above, p. 2S7.
AUSTRALIA. AND NEW ZEALAND
299
Negotiations before the arbitration authorities claim the greater part
of the time of the associations, and this subject therefore calls here
for consideration. I t is not proposed to give an independent account
of the law on arbitration and minimum wage fixing, which has
already been described on several occasions 1. I t will be considered
sufficient to examine the rights and obligations of-trade associations
arising out of these Acts and their consequent legal status. T h i s
may be followed by a consideration of the other activities of the
associations and their relations with the State, questions which could
not be rightly appreciated without a previous discussion on the
relations between the associations and the system of arbitration.
LEGAL STATUS OF T R A D E
ASSOCIATIONS IN W A G E - F I X I N G AND
ARBITRATION PROCEEDINGS
The Appointment
of Wages Boards and Arbitration
Courts
T h e members of the wages boards are freely appointed b y the
competent authority ; according to the Acts in question (Tasmania
and Victoria) the trade associations have n o right of nomination.
I t is the constant practice, however, to consult in advance the parties
concerned, that is to say, the trade associations in the industry in
question, and it is open to them to nominate members. If the
number of persons nominated is larger t h a n t h a t of members to
be appointed, t h e authorities make a selection. T o this should be
added that an appeal against the appointment of any person may be
made by a minority (in Victoria not less than one-fifth of the
m e m b e r s ) , in which case the members of the wages board m u s t be
elected. I t is obvious that the trade associations can exert considerable influence on such elections.
T h e Board of I n d u s t r y in South Australia, whose principal d u t y
is to fix the living wage, consists of a chairman and four commissioners, two nominated by the South Australian E m p l o y e r s '
Federation and two by the United Trades and Labour Council of
South Australia.
U n d e r the Arbitration Acts the trade associations have certain
specific rights and obligations.
T h e principal arbitration authority is the Arbitration Court,
1
Cf., for instance, D. McDaniel SELLS : " The Development of
State Wage Regulation in Australia and New Zealand. "
International
Labour Review, Vol. X, 1924, Xos. 4, 5 and 6.
300
FREEDOM OF ASSOCIATION
a judicial authority, although the settlement of labour disputes is
not a judicial function in the proper sense 1. In New Zealand the
Court consists of three members appointed by the Governor-General :
one " on the recommendation of the industrial unions of workers " ;
one " on the recommendation of the industrial unions of employers " ;
and the third, the judge of the Court, who must be a person eligible
to be a judge of the Supreme Court. Western Australia has followed
this example. In the other States, however, the associations have
no statutory influence on the composition of the Court, which
consists of professional lawyers. But here, too, it should not be
forgotten that in fact the associations can and do exert influence.
At the request of the parties, or ex officio, the Court may appoint
assessors in an advisory capacity, who must be nominated in equal
numbers by the employers and workers parties to the case.
In Queensland, in 1925, the Arbitration Court was superseded
by a Board of Arbitration set up on a wider basis. In New South
Wales, by the Act of 1926, an Industrial Commission took the place
of the Arbitration Court, so that the existing system of arbitration
was again brought into touch with the wages board system. This
Commission consists of a permanent Industrial Commissioner, who
appoints representatives of employers and workers as assessors,
unless he acts independently. Again, however, the associations do
not participate by force of law, even though in actual fact they may
appoint representatives.
The industrial boards set up for individual industries (New
South Wales, South Australia and Western Australia ; cf. also
C.A.A., section 36) may be regarded as auxiliary institutions under
the Arbitration Courts. In these, employers and workers have equal
representation. Under the Acts of Queensland and Western Australia, these representatives are nominated by the employers and
workers concerned. In South Australia and New South Wales they
are elected by the employers and workers respectively, and it is clear
that the trade associations may have a decisive influence on the
election.
In all conciliation committees that can or must be formed, the
organisations have equal representation ; this is in agreement with
the aims of the system. In Western Australia this goes so far that
any agreement between the employers' and workers' representatives
1
James BEYCE : Modern Democracies, Vol. II, p. 251.
AUSTRALIA AND N E W ZEALAND
3OI
on a conciliation committee has effect as an industrial agreement
between the organisations represented ( A . A . , section 120).
Arbitration
Subject
of
and Wage-Fixing
Procedure
Procedure
A l t h o u g h the trade associations are closely concerned in the
subject of m i n i m u m wage fixing, yet in the n a t u r e of things they
can participate by law only in collective disputes. But since these
are the principal disputes that are within the competence of thearbitration authorities under the Acts, the latter therefore serve
nevertheless to promote industrial peace. These disputes also
include those arising out of existing arbitration awards and collective
agreements or out of their modification, and the term " dispute " has
been widened more and more, so that it covers " any threatened or
impending or probable " dispute.
I t is obvious that the dispute must be one open to arbitration,
that is to say, must relate to industrial matters. Political disputes
are t h u s excluded. In the widest sense, therefore, the main subject
of arbitration procedure is the relations between employers a n d
workers thai are to be made subject to collective regulation.
The
Parties
T h e parties to arbitration procedure are the registered associations
— in actual fact, registered associations alone ; an association that
is not registered cannot take part in proceedings 1. F u r t h e r m o r e ,
the registered association must have a locus standi in the case at
issue. T h i s does not necessarily mean that it must be a party to
the dispute. Under section 107 of the N e w Zealand Act and section
61 of the Western Australian Act, the competence of the Court is
not affected by the fact that no member of the association is employed
by one of the parties to the dispute or is personally a party. T h e
collective interest of the parties is therefore considered a sufficient
ground.
I n South Australia (A.A., section 17) it is necessary, however,
1
In the interests of the maintenance of industrial peace, however, it
is usually provided that the Court may intervene regardless of whether a
registered association exists or not. In New Zealand, the Labour
Disputes Investigation Act of 1913 applies here.
302
FREEDOM OF ASSOCIATION
t h a t at least twenty persons employed in t h e industry in question
should belong to the claimant organisation, or in the case of an
employers' association, should be employed by members.
Under the 1928 A m e n d m e n t Act to the Commonwealth Arbitration Act, an organisation m a y further be appointed as a
" representative respondent " for persons with the same interest in
a given case (C.A.A., section 19 B).
F u r t h e r m o r e , associations which did not originally participate
in the proceedings may be required, at the request of either party,
or ex officio, to take p a r t during t h e course of the proceedings w h e n
it appears that they are interested in the outcome of the dispute.
I n New Zealand any employers' or workers' organisation — i.e. n o t
necessarily a registered association — consisting of not less t h a n
fifteen members, which is connected with the industry concerned in
the locality, is entitled to appear and be heard as if it were a party
to the proceedings, if it or its members may be affected by the result
of the proceedings ( A . A , section 106).
T h e registered associations m a y t h u s be regarded as the mainstay
of the arbitration system 1. Their position before the wages board is
in the nature of things different, b u t here, too, their action has a n
important effect on the decisions of the board.
T h e object of the arbitration system is to establish or maintain
industrial peace. I t is therefore the immediate aim of the proceedings to arrive at an agreement between the parties. To this end they
are free to settle the case by amicable agreement. O n t h e other
h a n d , they may not withdraw from any proceedings. H e r e t h e
restrictions on the r i g h t of dissolution and of the resignation or
exclusion of members already mentioned come into play. T h e
orders of the Court must be observed on the pain of a penalty. If
in spite of a summons within t h e prescribed period a party fails
to appear, the dispute may be dealt with and decided as if the party
were present.
The
Proceedings
T h e institution of proceedings before the arbitration authorities
is in the hands of the parties, but not that of proceedings before the
wages boards.
1
It should be recalled, however, that special regulations are often
in force for associations of civil servants and State employees, e.g. for
railwaymen in New Zealand.
AUSTRALIA AND N E W ZEALAND
303
Under section 22 of the Commonwealth Arbitration Act,
however, an organisation must satisfy certain conditions before it
can submit a question to the Arbitration Court. N o dispute m a y
be submitted to the Court without the approval of a judge of t h e
Court. T h i s is not necessary, however, if the Registrar certifies
either that the consent of the organisation has been given in t h e
manner prescribed by its rules, or that a duly adopted resolution
of t h e members has been submitted, or t h a t the majority of the
committee of management have given their consent in the prescribed
manner.
I n N e w Zealand there must be a resolution of the members passed
by secret ballot (A.A., section 108).
T h e extent to which other conditions have to be fulfilled
(" previous conciliation proceedings ", etc.) need not be discussed
here. T h e procedure is free from legal forms, t h u s being made
easily accessible and intelligible to the associations. I n particular,
the Court is not bound by rules of evidence. Witnesses are bound
to appear and give evidence on pain of a penalty.
T h e participation of a person, particularly a worker, in t h e
arbitration or wage-fixing procedure, whether as a member of the
authority in question or for giving evidence before the authority,
is specially protected by law, in the same way as is membership of
an association. T h u s , any form of victimisation is punished 1 .
During the proceedings, the associations m a y be represented b y
their committees or officials. Representation through lawyers is n o t
allowed unless all the authorities are agreed or the Court approves.
The
Decision
According to the nature of the proceedings, a distinction must
be made between the fixing of a minimum wage and the arbitration
award proper, the settlement of a collective dispute.
The minimum
wage. — If the competent authority fixes a
minimum wage, this becomes binding on all the employers and
workers within the competence of the authority. T h e minimum
must be taken into account in arbitration awards and industrial
agreements, otherwise the fixed minimum wage automatically takes
1
Cf., in addition to the Acts specified on pp. 289 et seq., Victoria,
Factories and »Shops Act of 1915, section 23 G, and Tasmania, Wages
Boards Act of 1920, section 66.
FREEDOM OF ASSOCIATION
3°4
the place of any provision to the contrary (cf. Western Australia,
A.A., section 124).
This is not the place to discuss the system of minimum wage
fixing, but in this connection it is necessary to point out that the
minimum wage, which is to apply to all workers without exception,
the so-called basic wage, is fixed not on economic grounds but in
accordance with social needs. It is the wage " sufficient to enable
the average worker to whom it applies to live in reasonable comfort,
having regard to any domestic obligation to which such average
worker would be ordinarily subject " (Western Australia, A.A.,
section 121 ; cf. also C.A.A., section 25 D, subsection 2) 1. It is
only the supplements to the basic wage that take other factors into
account, and the 1928 Act, amending the Commonwealth Arbitration
Act, expressly imposes the obligation on the Court to take into
consideration the economic capacity of the industry concerned and
the economic condition of the State as a whole (section 25 D).
Thus, in Australia and New Zealand, an attempt has been made
to establish a principle by law, even if only to a certain extent,
which is the principal aim of all trade union activity, namely to
free wages from the mechanical influence of economic conditions.
The arbitration award. — Industrial disputes are settled by an
arbitration award. This award is binding like the judgment of a
Court, but the various Acts differ as to the extent to which it is
binding.
Under the Arbitration Acts of the Commonwealth and South
Australia, only the parties and their members — both the original
parties and others brought in during the proceedings — are bound
by the award. In New South Wales, Queensland and Western
Australia, on the contrary, the law goes much further, and the
arbitration award, like the decision of a wages board, covers all
persons whose activities come within the scope of the award from
the point of view of occupation, industry or locality. The award is
a " common rule " (this is expressly provided in Western Australia,
A.A., section 83). Under the first two Acts mentioned, too, this
result may be achieved, but requires a special declaration for the
purpose. There is no need to stress the importance of these provisions, not least from the point of view of the aims of trade
associations. The provision in question of the Commonwealth Act
1
Cf. in particular
HIGGINS,
op. cit., pp. 3 et seq.
AUSTRALIA AND N E W ZEALAND
305
(section 38 / ) has, however, been declared contrary to the Constitution by t h e H i g h Court of Justice \ T h e latter stood firmly by the
traditional meaning of arbitration as something binding only the
parties before the arbitrator — that is to say, the organisations.
I n practice, this meant that the Arbitration Court h a d jurisdiction
only over those employers who employed unionists.
Employers
who employed unorganised workers were t h u s exempt from the
awards of the Court, to the prejudice of other employers.
This
naturally meant a serious limitation of the importance of the
arbitration powers of the Commonwealth. I n recognition of this
unfavourable effect of its interpretation of the law, the H i g h Court
has subsequently modified its own judgment and recognised the
possibility of joining as respondents persons not employing members
of the claimant association, the reason being t h a t in future the
latter might be engaged in t h e industry in question '. A trade union
may t h u s succeed in having employers employing unorganised
workers also bound by the award, and the fact that such an employer
pays lower wages t h a n prescribed by the award justifies the interest
of the trade union in taking legal proceedings, which t h u s become
an industrial dispute within the meaning of section 51 of the Commonwealth Constitution 3.
Although this has meant a certain improvement, the final
solution of the problem can be achieved only by amending the
Constitution of the Commonwealth. T h i s has been attempted twice,
b u t on each occasion the proposal was rejected by popular
referendum.
I n New Zealand, the arbitration award extends to all employers'
associations and unions who, not being original parties thereto, are
at any time while the award is in force connected with or engaged
in the industry to which the award applies in the district to
which it relates (section 89, subsection 3 ) . F u r t h e r m o r e , by force
of the Act, the award also extends to every worker who, while it is
1
The Australian Boot Trade Employees' Federation v. Why brow and
Company ( n Commonwealth Law Reports 311). The High Court of
Justice was largely influenced by the view that if the Court of Arbitration has the right to make its awards generally binding, it acquires
legislative rather than judicial authority. (Cf. QUICK, op. cit., pp. 551552.)
2
Burwood Cinema, Ltd., and others v. Australian
Theatre and
Amusement
Employees' Association
(35 Commonwealth Law Reports
528).
3
F O E N A N D E R , loC. Cit.,
Freedom of Association
p . 155.
20
306
FREEDOM OF ASSOCIATION
in force, is employed by any employer on whom it is binding (section
92, subsection 2).
The operation of the award may be fixed from the point of
view of period, industry and locality.
The period of validity is usually fixed at from one to five years.
On its expiration, however, the award remains in force until it is
repealed, amended, or superseded by another award. The new
award may be made retrospective (C.A.A., section 89 ; New
Zealand, A.A., section 28, subsections 1 and 2).
The validity of the award from the point of view of industry is
fixed by the nature of the dispute itself 1 .
With regard to locality, a distinction must be made in Australia
between Commonwealth arbitration and State arbitration. Under
the provisions as to competence contained in the Constitution, the
former applies in disputes extending beyond the limits of any one
State. The latter covers the territory of the State concerned, but
may be limited to a smaller area. It is open, however, to any
employer, industrial union, or association to apply for the extension
of the operation of the award (e.g. Western Australia, A.A., section
82).
A special problem arising in Australia is the relation between
the Commonwealth awards and those of the separate States. Even
though the competence of the Commonwealth and the States is
determined by the locality affected by the dispute, it was not
impossible for several, and sometimes contradictory, awards to be
issued for many occupations or industries, or even for there to be an
accumulation of awards. This lack of uniformity very seriously
reduced the value of the institution. Certain provisions in the Commonwealth Arbitration Act were intended to remedy this state of
affairs. Thus, if the Commonwealth Arbitration Court learns that
a State authority is about to deal with a matter provided for in an
award of its own, or the subject of proceedings before itself, the
Court ma}' make an order restraining the State authority from taking
such proceedings, and any action in contravention of such an order is
void (C.A.A., section 20). Further, according to section 30 (C.A.A.)
an award made by the Commonwealth Arbitration Court prevails over
a State law or an award of a State industrial authority that deals with
the same matter and is inconsistent with the former. Under section
1
Temporary restrictions in the case of agriculture are to be found
in the New Zealand Acts of 5 December 1927 and 19 September 1928.
AUSTRALIA AND NEW ZEALAND
S°7
30 A, any person interested may apply to the Commonwealth
Arbitration Court for a declaration that a State award is invalid.
Finally, in the case of each particular dispute, the Commonwealth Arbitration Court must, as promptly as possible, consider if
there is anything making it more desirable that the dispute should
be dealt with by it than by any State industrial authority. Unless
it so decides, the dispute is dismissed (C.A.A., section 38 C).
These provisions have not removed all the defects, however.
Conferences between the Commonwealth and the individual States
have in the main proved fruitless, and in 1929 the Commonwealth
Government proposed that the whole system of Commonwealth
arbitration should be abolished in favour of that of the individual
States. This led, however, toits fall, and the results of the following
general election showed that the large majority of the Australian
population wished for the maintenance of the Commonwealth
arbitration system.
New Zealand is divided into industrial districts, and the award
of the Arbitration Court is in principle valid only for one such
district, but it must of course be possible for the arbitration authority
to adapt the scope of its awards to economic requirements. The Act
accordingly provides for the power to limit or extend the area
covered by the award.
Thus, the Court may in an}' award limit its operation to a
smaller area than an industrial district (section 89, subsection 4).
In such case, it has power, on the application of any trade union,
industrial association, or employer in the industrial district within
which the award has effect, to extend the provisions of the award
to any trade union, industrial association, employer or person within
the district (subsection 5). The Court may also limit the scope of
an award already issued (subsection 6).
Greater importance attaches to the possibility of extending the
area of an award. Here a distinction should be made between the
following cases :
Even before the proceedings on a dispute have begun, au association of employers or workers may make an application for the
award to apply to more than one industrial district, and the award
made on such application may bind as parties all trade unions,
associations and employers in the districts in question (section 90).
During the period of validity of an award, the Court may, at
the request of one of the parties (section 93), or ex officio, extend
3o8
FREEDOM OF ASSOCIATION
the award so as to bind as party any specified trade union, association
or employer in New Zealand not yet bound by the award, but connected with or engaged in the industry concerned. Such action may
be taken only on certain conditions. The industry must be one
whose products enter into competition with those manufactured in
another industrial district. The majority of the employers and
workers concerned must be bound by the award. Furthermore, the
associations of employers or workers in the other district have the
right to lodge an objection. In any case, however, the Arbitration
Court may extend the award to another industrial district, and thus
bind any trade union, association or employer, if the products
manufactured in the industry concerned in the various districts
compete with each other (section 92, subsection 1 b).
Finally, on the application of any party to an award, the Court
may bind as parties all trade unions, associations and employers in
New Zealand who are connected with the same industry, if it is
satisfied that the conditions of employment or of trade are such as
make it equitable to do so (section 92, subsection 3).
The decision of the Arbitration Court is final. In the Australian
States the Arbitration Court, or the corresponding authority, is the
authority responsible for hearing appeals against the decisions of the
subsidiary authorities (industrial boards). As a rule it is impossible
to challenge the award before another court (C.A.A., section 31 ;
New Zealand A.A., section 97). In South Australia, however, the
question of law is different (Industrial Arbitration Act, section 52).
The Arbitration Court itself, however, may, as expressly provided in the New Zealand Act (section 92, subsection 1 c), amend
an award if it is satisfied that all the parties to the award wish for
its review.
The Application of Decisions
The essential point here is that both the fixed minimum wage
and the arbitration award have a directly constructive effect ; in
other words, the conditions of work fixed by the authorities automatically become part of contracts of employment, and no agreement
to the contrary is allowed. Contravention is subject to penalty,
though an appeal against this may be made by the authorities or any
organisation interested in the matter, or even a member of such
organisation.
The right to put forward claims under the arbitration award is
AUSTRALIA AND N E W ZEALAND
309
specially safeguarded. It is well known that owing to the worker's
state of dependence on the employer, the latter has means of bringing
pressure to bear on him that are not always in direct contravention
of the law. The right of workers to make claims under awards^is
therefore protected, in the same way as the exercise of their right
to belong to trade unions or to take a question to arbitration \ In
Xew Zealand the dismissal or suspension of any worker — as also
the discontinuance of work by any worker — pending arbitration
proceedings is an offence unless it is shown that such action is not
connected with the dispute (A.A., section 109 c). The employer
must pay the wage fixed by the award in full, and any explicit or
tacit agreement to the contrary is void. Even after accepting a lower
wage, the worker may appeal to the competent Court for the
difference between the sum paid to him and that due, on condition
that such appeal is made within a specified period, varying between
three and twelve months. Under some laws, the wages due may also
be sued for in the ordinary Courts.
The persons concerned are not alone responsible for watching
over the observance of the awards, but special inspectors are appointed for this purpose, whose powers resemble those of the industrial
inspectors (C.A.A., section 50 A ; New Zealand, A.A., section 101).
The strictest safeguards are to be found in the observance of
the awards by the organisations themselves. Certain property
obligations arise out of the awards, although in general this side
of the question is not given much consideration in law or in practice.
Under the Commonwealth Arbitration Act (sections 33, 46) a judge
may make an order requiring an organisation submitting an industrial
dispute to the Arbitration Court to give security for the observance
of the award to be made by the Court in the form of a bond not
exceeding .£500. An action may be brought on the bond. The
organisation may relieve itself from its. responsibility if it expels
the members who are guilty of non-observance of the award.
In addition, penalties are imposed for breach of the award, and
this is the principal safeguard. Besides the parties, i.e. the associations which are bound to observe the award, the individual
workers and employers may render themselves liable to penalty.
This means that not only the intentional breach of the award, but
any action involving an offence against the award is punishable. The
penalty is a fine and its maximum varies according as it relates to
1
Cf. above, pp. 2S9 et seq.
310
FREEDOM OF ASSOCIATION
an association or an employer on the one hand, or a worker on the
other. I n New Zealand the limit fixed for the attachment of wages
is reduced in connection with the imposition of these penalties ( A . A .
section 135).
T h e breach of the award in the form of a strike or lock-out is
dealt with under the heading of labour disputes.
TRADE
A S S O C I A T I O N S AND I N D U S T R I A L A G R E E M E N T S
It is characteristic of the system of law at present prevailing
in Australia and N e w Zealand that the provisions o n collective
agreements in the Arbitration Acts are of less importance than those
concerning the official fixing of wages, although the collective
agreement system is of old standing. As already explained in the
introduction, the eight-hour day was established in N e w South Wales
by agreement as early as 1855, and collective agreements have
played a great part precisely during the periods when the trade union
movement was making progress. T h e fact that arbitration awards
nevertheless take precedence is to be ascribed to t h e view that the
State is responsible for regulating conditions of work. H e r e too,
however, there is a tendency to promote the conclusion of voluntary
agreements by setting u p conciliation institutions, while at the same
time placing them under a certain degree of State control. I n actual
fact, t h e conditions of work in several industries are settled by
collective agreement 1 .
Legislation on collective agreements is
therefore still of great importance in the determination of t h e legal
status of trade associations.
T h e provisions in question are to be found in the Arbitration
Acts under the heading " Industrial Agreements " ; of the Wages
Board Acts, only that of Tasmania contains a section on
" Agreements ".
I n New Zealand, as in New South Wales, Queensland and
Western Australia, only an association or union m a y be a party on
the workers' side. In N e w Zealand and New South Wales it need
1
On 30 June 1926 the number of collective agreements in force in
Australia was 656. In New Zealand the number of agreements registered
in 1923-1924 was iS ; in 1924-1925, 22 ; 1926-1927, 20 ; and 1927-1928, 15.
(It should be noted, however, that many agreements were declared in the
form of awards.) (Labour Reports, 1925, 1927, 1928.)
AUSTRALIA AND N E W ZEALAND
3"
not be a registered association ; a " trade union " x too may enter
into agreements that are legally b i n d i n g 2 (New South Wales, A . A . ,
sections 12, 52 E ) . T h e Commonwealth Arbitration Act provides
that organisations may enter into industrial agreements with organisations or persons. T h e South Australian Act even provides that
agreements may be concluded without the participation of the
associations (Industrial Act, section 98), that is to say, by a majority
of at least three-fifths of the workers in an industry with a majority
of at least three-fifths of the employers. I n this case, however, a
special procedure before the arbitration authorities is provided, as
the Court must decide whether the proposed agreement complies
with the law and may lawfully be observed and must confirm it,
after which the agreement has the same force as the decision of an
arbitration authority.
T h e Tasmanian Act, finally, recognises only agreements between employers employing a minimum n u m b e r of workers and such
workers.
On the employers' side all the Acts recognise a single employer
as a party.
T h e agreement must always be in a given form. I t must be
drawn u p in writing and submitted to the registration authorities.
If it is concluded as the result of conciliation proceedings, it must
be filed with the Court.
An " industrial agreement " is in principle a contract. Other
persons than the parties are not affected by it. There are, however,
exceptions to this principle, for in addition to the contracting parties,
their members if they are associations are also bound. I t is not
contrary to the principle of a contract that subsequently persons
and associations may join in the agreement with binding force. On
the other hand, the principle is exceeded if it is possible to declare
such an agreement generally binding, as in Queensland, W e s t e r n
Australia and New Zealand (making the agreement equivalent to
an arbitration award, cf. New Zealand, A . A . section 33). As regards
its contents an agreement may not be contrary to the provisions of
arbitration legislation. I n particular, it may not depart from the
official minimum wage. A n y alteration in the minimum wage involves an alteration in the agreement. H e r e , too, the substantial
1
Cf. above p. 2S5.
Contrary to the British Act (cf. Freedom of Association,
Great Britain).
2
Vol. II,
312
FREEDOM OF ASSOCIATION
limitation of the contractual character of the " industrial agreement "
appears. An Arbitration Court may order an amendment of the
agreement at the request of either party to make it correspond to
an arbitration award or a common rule ".
As for an arbitration award, so for an agreement, the maximum
period of validity is fixed, although after its expiration the agreement
still remains in force. It may, however, be amended or cancelled
by the parties beforehand.
Observance of the agreement is enforced by sanctions, like that
of an award ; that is to say, breach of the agreement, like the
breach of the award, is punished.
In New South Wales it is expressly provided for " trade unions "
that the Arbitration Court (now the Industrial Commission) may
entertain and adjudicate upon any proceedings for damages for a
breach of " any agreement for the regulation of any business or
industry between employers and employees made by a trade union
with an employer or employers, or any agreement made between one
trade union and another, or any bond to secure the performance of
any of the above-mentioned agreements ".
The penalties for breach of the agreement in the form of a strike
or lock-out are dealt with below.
LABOUR
DISPUTES
The introduction of compulsory arbitration and wage fixing by
the State in Australia and New Zealand was intended to prevent
labour disputes. If this aim was to be achieved, the State had to
be given the necessary power to assert its authority. It was held that
one of the means in question lay in the statutory prohibition of
strikes and lock-outs on pain of a penalty. The separate States differ,
however, in the manner in which this prohibition is enforced under
the law.
Strikes and lock-outs are absolutely prohibited in the Commonwealth, in South Australia and Western Australia, as also under
the Tasmanian Wages Board Act. In New Zealand, New South
Wales and Queensland, on the contrary, the prohibition is only
relative, that is to say, disputes are prohibited under certain
conditions.
What is a strike or lock-out in Australian law? These terms
are defined by the Acts, according to which a strike is the cessation
of work or refusal to work by any number of workers acting in
AUSTRALIA A N D N E W ZEALAND
3'3
combination or under a common understanding with a view to compelling their employer or to aiding other workers in compelling their
employer to agree to or accept certain conditions of employment or
with a view to enforcing compliance with the workers' demands on
any employer (cf. the definition of the Western Australian Act).
This means that a strike must be a collective action, that it
does not matter whether it relates to a single industry or is general,
that it comprises in addition to the cessation of work the refusal to
work, and that a sympathetic strike is treated as an ordinary strike.
As a rule, there is a limitation with respect to other cessation of
work, not connected with an industrial dispute, but the result of
some question of law ; however, the onus of proof that the persons
stopping work have not intended to strike lies with them (Western
Australia, A.A., section 129, subsection 2).
A lock-out is defined as the closing of a place of employment or
any suspension of work or any refusal by an employer to continue
to employ any number of his workers with a view to compelling
his workers or to aiding another employer in compelling his workers
to accept certain conditions of employment or with a view to enforcing
compliance with any employer's demands on any workers.
The effects of this definition correspond to those of the definition
of a strike, and they are subject to the same limitation.
Where an industrial dispute is absolutely forbidden, it is provided that persons and organisations may " do nothing in the nature of
a lock-out or strike or continue any lock-out or strike " in support
of an industrial dispute or to enforce other demands.
Similarly, the incitement to and aiding of an industrial dispute
is forbidden, as also any form of promoting it. In particular, associations may bring no form of pressure to bear on their members
for this purpose.
The 192S Act amending the Commonwealth Arbitration Act
(sections 86 A et seq.) introduced special provisions to prevent stoppages of work contrary to an arbitration award. All forms of violence
(direct, indirect, intimidation, etc.) to prevent any person from
working in accordance with the terms of an award is punishable.
An organisation that imposes a disability on members for wishing
to work in accordance with the terms of an award renders itself
liable to penalty. At the meetings of organisations no resolutions
may be adopted in contempt of the Arbitration Court. Similarly,
publications inciting to breach of the awards are forbidden.
3I4
FREEDOM OF ASSOCIATION
Failure to observe arbitration awards in South Australia is
considered equivalent to a labour dispute (Industrial Act, section
103).
The conditional prohibition of stoppages of work in New Zealand,
as also in New South Wales and Queensland, depends on different
circumstances in each case.
In New Zealand, the following points must be noted. Strikes
and lock-outs are forbidden so long as a dispute is pending before
a Conciliation Council or Arbitration Court (section 109). Further,
a strike or lock-out is prohibited in the case of workers and employers
who are bound by an arbitration award (section 123). Such a strike
or lock-out is unlawful (section 124, subsections 4 and 5) and all participation in or instigation of such a strike or lock-out or similar
action is forbidden both for associations and for individuals.
Even in the absence of an arbitration award the organisation
of a dispute in certain fundamental industries (gas-works, electricity
works and waterworks, the supply of milk, meat and coal for
domestic consumption, the working of ferries, tramways and railways)
is allowed only on condition of giving a fortnight's notice.
Under the Labour Disputes Investigation Act of 1913, which
applies to disputes not covered by the Arbitration Act, the Minister
of Labour must be notified of a strike. He then opens conciliation
proceedings, and if these fail, the strike is allowed only, after a secret
ballot and the giving of a week's notice.
In New South Wales, strikes and lock-outs are not treated in
the same way. Lock-outs are absolutely forbidden and strikes are
forbidden only for employees of the Crown, of any State undertaking
or other public body, and of industries in which conditions are not
governed by an arbitration award or industrial agreement, unless a
union renders an award which has been in operation for a period of
at least twelve months no longer binding on its members by the vote
of a two-thirds majority of its members at a secret ballot. Finally, a
strike is prohibited if it has been commenced prior to the expiry of
fourteen days' notice to the competent Minister of the intention to
strike.
In Queensland, the lawfulness of a strike or lock-out depends
solely on whether the workers or employers concerned have expressed their agreement. This agreement must be obtained by a majority
vote in a secret ballot.
By the Act of 16 March 1926 amending the Crimes Act, the
Governor-General may pronounce a special prohibition of strikes and
AUSTRALIA AND N E W ZEALAND
315
lock-outs throughout Australia. According to section 30 / of this
Act, if there is in Australia a serious industrial disturbance prejudicing or threatening trade or commerce with other countries or
among the States, the Governor-General may make a proclamation
to that effect, during the operation of which all lock-outs and strikes
are forbidden, " (a) in relation to employment or in connection with
the transport of goods or the conveyance of passengers in trade or
commerce with other countries or among the States ; or, (b) in
relation to employment or in connection with the provision of any
public service by the Commonwealth or by any Department or public
authority under the Commonwealth " \
What are the judicial effects of an unlawful labour dispute?
The individual is punished, and as a rule the maximum penalty
varies according as he is an employer or a worker. Under the
Commonwealth Arbitration Act the Arbitration Court may order,
in addition to the penalty, that the guilty person shall lose all his
rights under the Act, that he shall cease to be a member of his
association or to hold office in it, and shall lose all his rights against
his association (section 50).
The Court may order that the fine due from the member of an
organisation shall be paid by the organisation itself, or that a certain
proportion, not exceeding a given maximum, shall be contributed
by the organisation.
The organisation, too, is punished, the maximum penalty being
as a rule equal to that imposed on an employer 2.
It is open to the organisation, however, to make the objection
that it has used every possible means to prevent the offence (C.A.A.,
section 6 B ; New South Wales, A.A., section 47). In New Zealand,
however, if proceedings are instituted against an association, they
may not be commenced or continued against an individual.
The contravention of arbitration awards, a strike or a lock-out
may finally lead to the cancellation of the association's registration
(C.A.A., section 60, subsection 1 (i)) or to the temporary suspension
of its registration (New Zealand, A.A., section 127).
It is difficult to prove that an association has organised or
allowed a strike. Convictions are therefore rare, and it is easier to
1
Immigrants involved in such actions may be deported under
section 8 AA of the Immigration Act.
:
The penalty imposed under the Arbitration Act is a fine ; under
the Crimes Act it is imprisonment, and if the guilty person was not
born in Australia, he is deported.
3i6
FREEDOM OF ASSOCIATION
keep to individuals — that is to say, the members — and in particular
the leaders of the association, and to proceed against the association
itself only subsidiarily. The 1928 Act amending the Commonwealth
Arbitration Act introduced a further innovation, intended to counteract the practice of the so-called " sectional strike " that has become
customary, particularly of late 1.
The process is as follows. When the workers desire better conditions, they strike in a particular undertaking, X. This enables
the rival undertaking Y to capture X's trade, and X is driven to
concede the workers' demands. The same process is then repeated
with Y. Under the 1928 Act (section 7) the Court may declare,
upon application, that a strike exists in a certain industry. This
permits the other employers in the industry to declare a lock-out
without being guilty of statutory prohibition. A similar provision
applies to lock-outs.
Finally, under several Acts, preventive measures for the future
may be adopted in the case of a strike (special provisions, as in
Queensland and South Australia ; the taking of a secret ballot, as
in New South Wales).
1
With respect to picketing, the provisions of the Conspiracy
and Protection of Property Acts apply 2 . In South Australia these
are supplemented by special provisions, under which no person may
attend at any place of work where an industrial dispute is taking
place or is threatened, and no person may induce another to take
part in an industrial dispute or injure him in any way (Industrial
Act, section 104). Intimidation and boycott is prohibited under the
provisions of section 86 A of the Commonwealth Arbitration Act
already mentioned, if they are intended to prevent a person from
working in accordance with the terms of an award. Under the New
South Wales Act (section 48 E ) , during the currency of a strike, no
person may be induced or compelled in any way to refrain from
handling or dealing with any article.
In actual fact, all these provisions have found very little application, although the introduction of compulsory arbitration has by
no means achieved its aim of preventing labour disputes. According
to the official statistics, the figures of industrial disputes in Australia
during the period 1914-1925 were as follows :
1
Cf. FOENANDER, loc. cit., pp. 166-167.
2
See above, p. 277.
AUSTRALIA AND N E W ZEALAND
Year
disputes
1914
!9!5
337
35S
50S
1
^6
í
1
1917
191S
1919
1920
1921
1922
J923
1924
1925
|
1
\
1
I
1
d u m b e r of
\\ orkers
involved
71,049
81,292
170,683
173.970
56,439
157,591
155,566
165,10]
116,332
76,321
152,446
176,746
444
298
460
554
6 T
445
274
SU
499
3I7
Number of
working
days iost
[
|
993,x53
1
682,960
1,644,753
4,6S9,3i6
539,593
4,303,738
3,587,267
1,286,185
!
|
1
S5S.6S5
1,145,977
918,646
1,128,570
The disputes of the following years were no less numerous and
widespread, but most of them took place in a few, and nearly always
the same, industries (above all, shipping and docks).
The corresponding figures for New Zealand are as follows x :
Nature c f dispu t e
Year
1917
1918
1919
1920
192I
1922
1923
1924
1925
1926
Strike
Sympathetic Partial Lockout
strike strike
32
33
32
^
71
63
53
45
4
2 1 —
5
4
9
T
0«5
73
49
—
6
9
10
O
12
I
40
—
45
77
77
58
49
34
83
59
—
—
—
I 1 —
2
2
* !
i
1
Number of workers invo ved 1
¡ Num: ber of
firms
SympaTotal
Total aP.ec- Strike thetic Partial Lockout
' ted t
strike strike
45
6
I
1
~
!
531
44 '•
59 i
107 ¡
112 j
I
2,509 —
225
3,9S4j —
39
1,092
2,938 —
9.49 1 5,309
338
982
8,534
917
376
67 | 5,778
207
79 1 6,659
5S 114.791 —
93 1 7,694 1,229
67 Ì 4,437 1,788
2,734
33 4,056
4,030
—
— 15,138
— 10,433
260 —
6,414
7,162
296 —
24 —
14.S15
47 935 9,905
6,264
39
Most of the figures for the period before 1921 are incomplete.
In New Zealand, too, it should be observed that most labour
disputes take place in a few particular industries (the frozen meat
industry, mining, shipping and docks).
The present system has thus in no way completely prevented
1
New Zealand Official Year Book, 192s, p. 834.
FREEDOM OF ASSOCIATION
31«
labour disputes, as was hoped during t h e first few years, b u t it has
helped t o reduce their number -— in N e w Zealand more than in
Australia.
T h e system of compulsory arbitration, even though it i s
therefore considered in need of reform, is still held to have stood t h e
test, a n d to be right in principle, though t h e employers a n d t h e
stronger unions would often prefer a system of conciliation.
M E A S U R E S T O SUPPLEMENT T H E SYSTEM OF A R B I T R A T I O N
T h e present scope of the system of arbitration in Australia is
evident from t h e fact t h a t in 1927, o u t of 2,000,000 wage earners
and salaried employees, 1,250,000 were affected by changes
in wages, that 875,000 persons were subject to awards of the Commonwealth Arbitration Court and agreements under the Commonwealth Arbitration Act, a n d 380,000 to decisions a n d agreements
under t h e Acts of the individual States, and that only for 27,000
persons were wages altered by direct negotiations 1. T h e imperfections a n d omissions in the system are t h u s felt all t h e more
strongly, a n d many are the attempts that have been made to remedy
recognised defects. Here reference need only be made to certain
measures supplementing the Arbitration Acts that are of special
interest in connection with the position of trade associations.
T h e object of these measures is on t h e one hand to reduce friction
between employers and workers, a n d on the other to improve t h e
economic condition of t h e workers when this is impossible on t h e
lines hitherto followed.
Mention h a s already been made of the measures m a k i n g t h e
penalties a n d t h e State supervision of trade associations stricter,
introducing t h e secret ballot, etc., as also of t h e efforts to establish
uniformity between t h e decisions of t h e Commonwealth a n d t h e
separate States. I n 1928 t h e Government attempted, in addition, to
bring t h e central organisations of employers and workers together
in a conference, on t h e model of t h e Mond (Lord Melchett)
Conference in England, with a view to defining t h e best methods for
collaboration between these central organisations.
T h e attempt
cannot b e said to have succeeded, however, a n d t h e Conference has
been postponed sine die.
In N e w Zealand a National Industrial Conference took place
1
Cf. SKENE SMITH : Economic
Control,
p. 172.
AUSTRALIA AND NEW ZEALAND
319
in the spring of 192S, which, even though it did not lead to a n
agreement between the representatives of workers a n d employers,
yet produced an interesting discussion, with t h e result that t h e
employers pronounced themselves in favour of replacing compulsory
arbitration b y a conciliation procedure, whereas the workers
remained in favour of the existing system.
I n this connection reference should also be made to t h e a t t e m p t s
to improve conditions of work by law in cases where arbitration
cannot or should not intervene. T h e first measure of importance
here is t h e reduction of hours of work t o forty-four in t h e week,
which h a s been established b y law in Queensland a n d N e w South
Wales 1. T o this should be added that t h e Commonwealth Arbitration Court and t h e Arbitration Court of Western Australia h a v e
allowed the reduction of hours of work to forty-four a week in several
industries.
Another .aim h a s been to supplement t h e statutorily fixed minim u m wage b y legislation. A committee appointed in 1920 h a d
ascertained that the official basic wage for t h e Commonwealth, which
was considered sufficient for a family of man, wife and three children,
had not kept step with t h e rise in real wages, a fact from which
men with families h a d suffered in particular. I t w a s not considered
possible t o recommend that when t h e basic wage was revised a
distinction should be made between married and unmarried workers,
as this would lead to unfair preference being given to t h e unmarried.
On t h e other hand, it w a s n o t held t o b e feasible t o grant a higher
wage indiscriminately to all. I n order to solve the problem, it w a s
therefore proposed that a weekly allowance should be paid in
respect of children, the cost being m e t b y a levy on employers. A
similar conclusion was reached by a committee 'appointed in Queensland in 1925. I n 1927, N e w South Wales was the first State to pass
a Family E n d o w m e n t A c t based on these principles 2 . I n t h e same
year, however, the Federal Government took u p t h e question and
appointed a committee to enquire into it. I t is therefore to be expects
ed that an A c t corresponding to the recommendations of t h e committee will be prepared by t h e Commonwealth.
New Zealand passed a Family Allowances A c t in 1926, based
on somewhat different principles 3 .
1
INTERNATIONAL LABOUR O F F I C E : Legislative
S ; 1926, Austral. 2.
2
Ibid., 1927, Austral. 4 and S.
3
Ibid:, 1926, X. Z. 5.
Series, 1925, Austral.
320
FREEDOM OF ASSOCIATION
Finally, reference should be made to the attempts to combat
unemployment, which, since the war, has at times reached an
exceptionally high figure. It is clear that this social phenomenon,
whatever its cause, may seriously interfere with the efficacy of
Australian social legislation, unless measures are taken to counteract it.
The first State to adopt an Unemployment Insurance Act
was Queensland in 1922. This is not the place to discuss the contents
of this Act in detail, but it may be mentioned as of interest from
the point of view of trade associations that the special Unemployment
Council provided for under the Act includes, in addition to the
Minister as chairman and two officials, a representative each of
employers and workers, who are elected by the executives of the
registered associations and appointed by the Governor. Furthermore, if a worker objects to becoming- a member of a registered
trade union which enjoys the right of preference of employment for
its members under an arbitration award or industrial agreement,
this does not constitute a reasonable excuse for him to refuse tot
accept work offered. Should he do so, he forfeits his right to an
allowance. On the other hand, refusal to accept employment in a
situation vacant in consequence of a labour dispute is considered a
reasonable excuse within the meaning of the Act (section 14,
subsection 4 a).
During the last few years the Commonwealth, too, has taken up
the question of unemployment, and the Federal Commission on
Insurance, after careful investigation, has made recommendations in
favour of the appointment of a Federal Unemployment Committee
and the creation of a system of federal unemployment insurance.
These questions go beyond the narrower field of freedom of
association, and raise the general problem of the relations between
the trade associations and the State, to be discussed briefly below.
TRADE ASSOCIATIONS AND T H E STATE
This question has a legal and a political side. From the legal
point of view the principal State authorities on which the trade
associations are represented in connection with wage fixing and
arbitration have already been discussed 1. Reference may also be
made to the organisation of apprenticeship, the trade associations
being jointly represented on the committees or boards for supervising
1
See above, pp. 299 et seq.
AUSTRALIA AND N E W ZEALAND
321
and examining apprentices. I t is natural that the H o u r s of W o r k
Acts take into account arbitration awards and coliective agreements
in questions of prolonging hours of work or fixing overtime. Beyond
this, however, the trade associations are very largely called in by
the Governments in an advisory or deciding capacity, as occasion
arises x.
On the other side, the trade associations have great political
influence. E v e n t h o u g h the examination of this question is outside
the scope of the present enquiry, it cannot be left out of account
altogether without risk of incompleteness. I n order to maintain the
juridical character of this study, it will be sufficient to give a brief
account of the legislation t h a t may be regarded as carrying out the
policy of the trade associations — more particularly, the trade unions.
I t should first be recalled t h a t from the point of view of organisation there is a close connection between the trade unions and the
Labour Parties, so t h a t the former help to decide in the selection of
candidates for Parliament and the drawing u p of the p a r t y prog r a m m e . T h e strict discipline of the trade unions very largely
secures the election of these candidates.
T h e problem is by w h a t statutory means the State determination
of minimum conditions of work and their improvement may be
secured. T h e attempts to solve this problem have been both negative
and positive.
T h e negative measures include above all t h e limitation of
foreign competition in the labour market and in trade. T h e I m m i gration A c t s serve to limit competition in the labour m a r k e t 2 . T h e i r
object is above all to control the influx of coloured labour, for even
at the beginning of this century the competition of cheap Chinese
labour had considerably reduced the standard of employment in the
large towns. T h i s aim ( " a white Australia ") has, in fact, more
or less been achieved, although it must be remembered that the
tropical N o r t h e r n Territory is disproportionately thinly settled, and
not so productive as it might perhaps have been under other conditions 3 . But immigration in general is now much smaller. T h e
1
It may be mentioned, for instance, that a committee of enquiry,
including representatives of workers' and employers' organisations in
equal numbers, was sent to the United States.
2
Immigration Act, 1901-1925 (Legislative Series, 1924, Austral. 5 ;
1925, Austral. 11).
3
Cf. Sir Geo. BUCHANAN : Development and Administration
of the
Northern
Territory.
Freedom of Association
21
7,22
FREEDOM OF ASSOCIATION
following are the figures of immigrants from certain important
countries admitted to Australia in the periods 190S-1913 and 19211926 \
Nationality
British
German
Italian
French
Chinese
190S-1913
010,13a
15.642
7,823
7,94S
11,862
1921-1926
507,880
1,322
20,978
3,372
10,724 *
» Between 1921 and 1926, 13,120 Chinese left Australia.
In Australia, tariff policy is directly connected with social
policy. Even one of the first champions of the introduction of
protective tariffs in Australia, David Syme, supported his views in
the 'sixties of last century with the argument that a tariff would
enable home manufacturers to pay their workers a " fair living wage ",
and at the same time to compete on the home market with the
imported products of badly-paid foreign labour. This was the aim
of the so-called " new protection policy " of 1906 that was fought
by the Labour Party. It led to the introduction, in addition to the
tariff on agricultural machinery, of a duty on home machinery, with
the relaxation, however, that manufacturers were exempt from this
duty if the conditions of work in their undertakings were declared
fair and reasonable by Parliament, or were in agreement with an
award of the Commonwealth Arbitration Court or an industrial
agreement submitted to that Court, or had been declared fair and
reasonable by the President of the Court. The High Court of Justice, however, declared this Act contrary to the Constitution, in so far
as it exceeded the competence of the Commonwealth. But the
import duties remained, and were extended and raised after the
war. That the protective duty has actually led to the improvement
in conditions of work hoped for by the workers, is no longer so
certain ".
Commonwealth legislation against dumping and trusts (the An ti1
1
Cf. SKENE SMITH, op. cit.,
p.
195.
The protective tariff in the agricultural State of New Zealand isof less importance than in Australia.
AUSTRALIA AND NEW ZEALAND
323
T r u s t Act of 1906) has remained practically without effect 1 . All
attempts to increase the powers of the Commonwealth in this direction
have failed '. T h e regulation of prices which, during the war in
particular, played a considerable part, has lost m u c h of its importance,
although in Queensland it is still in operation, at present in the hands
of the Board of Trade and Arbitration.
I n New Zealand a Board of Trade, which was set u p during the
war, has been given wide, not to say legislative, powers for the
regulation of economic conditions. But the great expectations placed
in it by some 3 have not been fulfilled 4 .
T h e positive measures consist above all in the extension of State
undertakings or undertakings u n d e r State c o n t r o l 5 . T h e scope of
State undertakings, in Australia particularly, since the world war
is comparatively wide ; thus, without m a k i n g an exhaustive enumeration, reference may be made to the State coal mines, water
works, irrigation works, grain depots and elevators, railways,
shipping, ports and harbour works. T h e history of the country as
a colony provides the reason w h y State intervention in industry
has not been considered extraordinary, and therefore has been, not
merely unopposed, b u t sometimes even promoted by others than
the workers. A closer connection with general social policy is to
be found, above all, in the attempts made in Queensland to use State
undertakings as a means of securing a reasonable level of prices or
even of preventing a fall in wages \ T h u s , State butchers' shops,
slaughter-houses and similar enterprises for supplying consumers
were set u p there, and are said to have contributed largely to
reducing prices.
A m o n g institutions under State control, the sugar industry calls
for first mention. Cane sugar is produced in Queensland and the
north of New South Wales, and only white workers are employed
1
Cf. HEATON : Modern Economic History,
2
Cf.
pp. 91 et seq. Adelaide,
1922.
3
QUICK, op.
cit.,
pp. 606 et
seq.
Cf. Sir John FINDLAY : " Industrial Peace in New Zealand. "
International Labour Review, Vol. IV, No. 1, Oct. .1921, pp. 32 et seq.
4
J. B. CONDLIFFE : " Experiments in State Control in New Zealand. "
Ibid., Vol. IX, No. 3, March 1924, p. 334.
5
In this respect New Zealand mav be left out of account, as the
primarily agricultural nature of the country interferes with such
experiments.
* For further details, cf. J. B. BRIGDEN : " State Enterprises in
Australia. " International Labour Review, Vol. XVI, No. 1, July 1927,
pp. 26 et seq.
324
FREEDOM OF ASSOCIATION
in its cultivation. The statutory prohibition of the employment of
coloured workers (here Kanakas) that was introduced at the
beginning of the century, and was one of the first steps towards the
creation of " White Australia ", led, in fact, to the employment
exclusively of white workers in spite of the tropical conditions —
the only example of the kind. The regulation of the sugar industry
is at present roughly as follows : Imports of sugar are forbidden.
The prices for cultivators, manufacturers, dealers and workers are
fixed in agreement with a special authority. The prices of land and
wages are also very largely fixed. The supply of labour is under
official control in the form of the Immigration Acts. Finally, retail
prices are also fixed.
It is an indisputable fact, at all events, that the production of
sugar in Australia has increased substantially, that speculation has
been eliminated, and that prices have reached comparative stability.
" Housewives are protected against prices higher than 4 1/2 d.
per lb. " *
Opinion on the general results of the nationalisation of industry
is divided. It cannot be regarded as an attempt to realise Socialist
demands ; but the workers, and in particular those organised in
trade unions, look upon it as a hopeful beginning, and demand, as
their resolutions show, the continuation and systematic extension
of this policy.
1
S K E N E S M I T H , op.
cit.,
p.
134.
SUMMARY AND CONCLUSION
Australia and New Zealand are new countries, and their history
hardly goes further back than the beginning of the nineteenth
century. The aboriginal population has been either eliminated from
national life, or assimilated. The racially uniform population is
unencumbered by tradition, and looks to the future, strongly
imbued with the spirit of freedom, and above all of equality. The
separate States quickly advanced from the status of English Crown
Colonies to that of independent democracies with a strong social
bent. Trade associations sprang up at an early date on the
English model, and were thus able to take root in the wide masses
of people, and as early as 1890 to take the decisive step of participating in the political leadership of the State by making use of their
facilities under the democratic Constitution. State and trade associations were no longer opposed to each other, and trade union law
became part of the law of the State.
The trade associations are the legally recognised representatives
of employers and workers. The statutory regulation of their relations
is a principal function of the State. Conditions of work are fixed
by the State, and the associations are responsible for the observance
of these regulations. Where not absolutely forbidden, strikes and
lock-outs are very much restricted by law. In return, the members
of the associations enjoy a virtual monopoly of employment. At the
same time, the associations are politically responsible for the working
of this system, but this demands a certain equilibrium in economic
life. The State had therefore to intervene, its instrument being
the protective tariff and the limitation of emigration, which led in
turn — at least so far as industrialised Australia is concerned —
to State control of certain State-protected industries, and finally
to nationalised industry itself.
During the first ten years — a period of economic prosperity —
the machinery of arbitration appeared to work admirably, so that
New Zealand was called the country without strikes, and Australia
326
FREEDOM OF ASSOCIATION
the workers' paradise. As economic conditions deteriorated, however, the defects of the system became more patent. There had
always been individualist tendencies, and these had governed the
practice of the High Court of Justice in Australia, which hampered
the activities of the Commonwealth Arbitration Court. The federal
structure of Australia has severely reduced the degree of uniformity
in the State regulation of conditions of work, just as separatism has
hampered uniformity in the trade union movement. The whole
system, finally, rests on a very marked separation of the
State from foreign countries. But the question is whether it is
possible in these days for a State, which depends on economic
relations with the rest of the world, to build up a lasting social
order on such a basis unless other countries follow suit. On the
other hand, it should not be forgotten that conditions of employment
in Australia and New Zealand, as compared with those in other
countries, are exceedingly favourable, and that trade associations
enjoy a political and legal status by which they have become one of
the strongest powers in the State.
BIBLIOGRAPHY
I. — Australia
ATKINSON.
Australia : Economic and Political Studies.
Melbourne,
IQ20.
BRYCE.
Modern Democracies.
2 vols. London, 1921.
CHIDDELL. Australia:
White or Yellow? London, 1926.
COGHLAN. Labour and Industries in Australia.
4 vols.
.Oxford,
1918.
HEATON.
Modern Economic History.
Adelaide, 1922.
HiGGiNS. A New Province for Law and Order. London, Bombay,
Sydney, 1922.
K E R R . The Law of the Australian Constitution.
Sydney, Melbourne, Brisbane, 1925.
MURPHY. The Law relating to Factories and Shops in Victoria.
Melbourne, 1922.
QUICK. The Legislative Powers of the Commonwealth and the States
of Australia.
Melbourne, Sydney, 1919.
SKENE SMITH.
SUTCLIFFE.
Economic Control.
London, 1929.
A History of Trade Unionism in Australia.
Melbourne,
1921.
(WADE.
Australia : Problems
WILLARD.
History
and Prospects.
of the " White Australia
Oxford, 1910.
" Policy.
Melbourne,
1923.
INTERNATIONAL LABOUR O F F I C E :
Industrial
and Labour
Legislative
Series.
Information.
"Industrial Arbitration in Queensland ". By T. W. MCCAWLEY.
International Labour Review, Vol. V, No. 3.
" The Development of State Wage Regulation in Australia and
New Zealand. " By D. McDaniel SELLS. Ibid., Vol. X, Nos. 4, 5, 6.
" State Enterprises in Australia ". By J. B. BRIGDEN. Ibid., Vol.
XVI, No. 1.
" The New Conciliation and Arbitration Act in Australia ". By
O. de R. FOENANDER.
Ibid., Vol. X I X , No. 2.
328
FREEDOM OF ASSOCIATION
Official
Documents
Commonwealth
Arbitration Reports ; The Industrial
Arbitration
Reports, New South Wales.
The Commonwealth Year Book : The New South Wales Year Book :
Labour Reports
The Parliament of the Commonwealth of Australia : Northern Territory.
Development
and Administration.
Report by Sir George
BUCHANAN (1925).
Parliamentary
Debates 1927-1928..
II. — New Zealand
BRYCE. Modern Democracies.
2 vols. London, 1921.
BROADHEAD. State Regulation of Labour and Labour Disputes in
New Zealand. Christchurch, Wellington and Dunedin, Melbourne and
London, 1908.
CoNDLiFFE.
A Short History
H I G H T AND BAMFORD.
of New Zealand.
The Constitutional
Christchurch, 1925.
History
and Law of New
Zealand.
LLOYD, H . D. A Country
NATIONAL
Arbitration
INDUSTRIAL
in New Zealand.
without
Strikes.
CONFERENCE
New York, 1900.
BOARD.
Conciliation
and
Research Report No. 23. 1919-
REEVES, W . P. State Experiments in Australia and New Zealand.
2 vols. London.
SIEGFRIED, A. Démocratie en Nouvelle-Zélande. 1904.
INTERNATIONAL LABOUR O F F I C E : Legislative
Series.
Industrial and Labour
Information.
" The Development of State Wage Regulation in Australia
and New Zealand ". By D. McDaniel SELLS. International
Labour
Review, Vol. X-, Nos. 4, 5, 6.
" Industrial Peace in New Zealand ". By Sir John FINDLAY. Ibid.,
Vol. IV, No. 1.
" Experiments in State Control in New Zealand ". By J. B.
CONDLIFFE. Ibid., Vol. I X , No. 3.
N E W ZEALAND GOVERNMENT : New Zealand Official Year Books,
1924-1929.
DEPARTMENT OF LABOUR : Awards, Recommendations,
Agreements, Orders, etc.
Précis of the Labour Laws of New Zealand. Wellington,
1925Reports (up to 1928).
DEPARTMENT OF INDUSTRIES AND COMMERCE : Annual
Reports
(up to 1928).
NATIONAL INDUSTRIAL CONFERENCE :
Wellington, 1928.
Report
of
Proceedings.
INDIA
§ 1. — Evolution and Present Position of Trade Unionism
In India the rapid evolution of trade unionism is one of the most
notable features of the last few years. The astounding growth of
trade unions immediately following on the conclusion of the World
War and the adoption of the Indian Trade Unions Act, 1926, are the
two outstanding features \ In view of the fact that the form taken
by the labour movement in India is in many ways peculiar to that
country, it will be convenient to deal first with the growth of trade
unions and afterwards with the regulation of the right of association
thus necessitated.
GROWTH, N A T U R E , AND STRENGTH OF T R A D E UNIONS
The growth of trade unionism in India is not easy to follow, nor
can the present position of trade unionism in that country be clearly
defined. Even such a question of fact as the number of trade unions
in existence is, or was until recently, a matter of dispute between
the representatives of employers and of workers. As an example of
this, it may be noted that in the debates in the Legislative Assembly,
at the time when the resolution calling for legislation for registration
of trade unions was adopted, one member estimated the number of
1
Since this study was written, the Indian Legislature has adopted
the Trade Disputes Act, 1929. This Act contains provisions relating to
strikes in public utilities and illegal strikes, having a direct bearing on
the freedom of action of trade unions. The chief provisions touching on
this question are given in an appendix to this study.
33°
FREEDOM OF ASSOCIATION
the trade unions at that date as being between fifty and a hundred,
while another member challenged him to name as m a n y as twenty. .
N o t only the number but the n a t u r e of the trade unions in
existence is also a matter of controversy. T h e Government of India
in a Circular Letter dated 12 September 1Ç21 addressed to all local
governments and administrations included a descriptive passage
which, in view of its informative value, m a y be quoted in full :
The number of so-called trade unions in India is now considerable,
and is increasing. A few of them have written constitutions, and keep
regular accounts, and, except that they do not, as a rule, pay the sick
and unemployment benefits paid by all the big English unions, they
approximate in form and methods to the "British models. But the great
majority are loose organisations. They have frequently no definite
constitution ; they publish no accounts ; their officers have no assigned
functions ; even the objects of the union are unstated in some cases.
Many are little more than strike committees formed to promote or carry
on a strike, and ceasing to function after the strike has ended. Such
organisations bear little resemblance to trade unions in the usually
accepted meaning of the term. But, in so far as the movement makes
for the organisation of labour, and for the steady betterment of the
conditions of labour by efforts from within, it is clear that every facility
should be offered for its development along healthy lines. The Government of India believe that if the unions' that are now being formed are
enabled and encouraged to define their objects, their methods and their
organisation, a step will be taken in the right direction.
The desirability, in the interests of the workmen who join a trade
union, of the registration of that union can scarcely be disputed. Persons
entrusted with considerable sums of money by illiterate persons, and
never called to account for these sums, are liable to much temptation,
and there are dangers that they may prove unequal to it. This is only
one of the several obvious dangers in the growth of a large number-of
important and possibly powerful organisations, which stand outside the
civil law of the country. By registration, trade unionists would obtain
for their unions the right to sue and the right to control their officers
and their funds, and, further, they would have a recognised status and
position in the eyes of industrialists and the public. That full recognition
by employers would follow in every case is unlikely, and in the opinion
of the Government of India it is neither desirable nor possible to compel
employers to recognise all unions. But much of the present reluctance of
employers to treat with the existing organisations is due to the fact that
these organisations have none- of the responsibility attaching to
properly registered bodies, and frequently represent little more than the
aims of third parties, whose motives are not always disinterested. If a
trade union could show that it was a genuine combination of workers,
formed not with the express object of creating discord, but with the
object of advancing the prosperity of those workers by all legal means,
much of this reluctance would disappear. And without some form oi
registration, it is difficult for a trade union to assert its genuineness, and
to substantiate the claims it makes to represent any section of the workers in a factory or an industry.
In commenting upon this passage, the All-India Trade Union
Congress deeply deplored that " such observations as strike committees formed to promote or carry on a strike or with the express
INDIA
SSI
object of creating discord should have found a place in the Circular
Letter. T h e y are irrelevant, dò not become the neutrality or dignity
of Government a n d do not promote t h e cause of t r u t h and harmony
between Capital and Labour. T h e y condemn committees which have
rendered altruistic services and are, at t h e present stage of trade
union development, almost indispensable " 1.
On t h e other hand, the Bengal Chamber of Commerce, commenting on t h e same passage, felt that " the Government of I n d i a overstate t h e case for t h e registration a n d protection of trade unions, when
they say that t h e number of so-called unions in I n d i a is now considerable and is increasing. T h e r e may have been some grounds for
this statement at or prior to the time that t h e Government of India
letter was written. I t is true that during t h e latter part of 1920 and
t h e earlier m o n t h s of 1921, as a result of economic conditions and the.
industrial unrest then existing in this country, a considerable number
of so-called trade unions came into being. T h e s e , however, were more
strike committees than permanent labour organisations, and in the
great majority of cases they broke u p or a t least ceased to function
when the particular disputes out of which they arose were disposed
of " 2 .
I n view of such wide differences as these in the various estimates
made as to the strength and nature of trade unions in India, the
following facts and figures are p u t forward with t h e utmost reserve.
F o r an understanding of the development and present position
of trade unionism in India, it is necessary to realise that the industrial
population in that country is in many respects very different from t h e
industrial populations in other countries in which trade unions are
found.
T h e following passage from the report of the Bombay
Industrial Disputes Committee 3 , published in April 1922, brings o u t
two of the most characteristic features of the I n d i a n industrial
worker—his migratory nature and the general low standard of literacy.
The general body of this working population was accurately described
by Mr. C.-X. Wadia, d . E . , in 1919, as " agriculturists first and agriculturists last ". They come to Bombay—as a rule without their families—
and work till they have funds enough to return to their villages. In the
textile trade and amongst the general labourers almost all the operatives,
except the " jobbers " and gang-men, are of this migratory class. These
remarks apply with almost equal force to the industrial population of
1
2
Bombay Labour Gazette, Feb. 1922, pp. 37-38.
Ibid., June 1922, p. 34.
* Ibid.,
A p r i l 1922, p . 23.
FREEDOM OF ASSOCIATION
332
Ahmedabad and Sholapur. In the workshop and in semi-clerical employment where skill or some education is required, there is however being
formed a more permanent class of workmen who can almost speak of
Bombay as their home. The standard of literacy is exceedingly low, not
more than five per cent, of the operative class being able to read and write
their own vernaculars.
T h e wide differences of race, religion, caste, and custom, and the
great distances between industrial centres, are other factors of
great importance rendering the position of the Indian industrial
worker in m a n y respects unique.
Not only is the labour force in India very different in many
respects from that found in other countries of industrial importance,
b u t t h e trade unions themselves are likewise peculiar, as may be
gauged to some extent from a further passage taken from the report
of the Bombay Industrial Disputes Committee :
Amongst this heterogeneous labour force, there have, in Bombay and
Ahmedabad, gradually developed the beginnings of a trade union movement. In most cases the unions are little more than strike committees
consisting of a few officers and perhaps a few paying members around
whom the rest rally in times of trouble. After work is resumed the union
dwindles, and in most cases disappears.
Nominally there are in existence at the present moment :
48 unions with 79,614 members in Bombay ;
• 12 unions with 20,863 members in Ahmedabad ;
17 unions with 8,254 members in the rest of the Presidency.
But apart from the Ahmedabad unions it is certain that only a small
proportion of the members are anything more than sympathisers and it is
doubtful whether the financial position of any of them is in the least
assured. In Bombay the strength and permanence of the unions is so far
exactly in proportion to the skill and attainments of the employees they
seek to unite. The Postmen's Union and after that the various workshop
unions are the most efficiently organised.
In Ahmedabad the unions are well supported by the men and have
attained complete recognition from the employers. They have besides
overstepped the bounds of the individual factory and united the men on
the basis of their employment, a form of organisation which Bombay so
far shows no sign of reaching. All this has been achieved far too recently
and rapidly to obscure the true motive power, the personalities of sympathisers not directly connected with the industry 1.
Of the evolution of trade unionism in India few precise data are
available. T h e following passage from the Directory of Trade Unions 2
gives some account of certain of the forces at work :
1
Bombay Labour Gazette, April 1922, p. 24.
The Directory of Trade Unions. Edited by R. R. BAKHAI.E, Assistant
•Secretary, All-India Trada Union Congress, 1925.
2
INDIA
333
The trade union movement is a recent growth in India. Most of
the unions came into existence between the years 1918 and 1922. These
were the years which witnessed the close of the great war, and the recognition of the magnificent work done by the working classes in the West
during the war could not but stimulate the working classes in India to
start their organisations and build up the labour movement in order to
safeguard and advance their interests. Another circumstance that was
partly responsible for the rapid organisation of the labour movement was
the birth of the International Labour Conference. Under the Treaty of
Versailles, the labour organisations in different countries were given the
power to select their representatives on the Conference subject only to
the confirmation of the Governments of those countries. In the
absence of such organisations, the Treaty of Versailles gave Governments the power to nominate labour representatives. The working
classes in India did not fail to realise the importance of the right
that was bestowed upon them and the harm that would be done
if they did not organise themselves in order to exercise that right.
A great impetus was thus given to the organisation of trade unions which
came into existence with admirable rapidity. To it can also be attributed
partly the birth of the All-India Trade Union Congress. There was a
third and more important circumstance which considerably helped the
organisation of Indian labour. It was the growing consciousness among
the working classes of the various disabilities under which they were
suffering. Mr. B. P. Wadia's case in Madras, in connection with the
Buckingham mill strike, brought home to the working classes the low
level of their position in the industrial system of the country, and convinced them that they had no chance of improvement unless they combined
themselves into strong and efficient trade unions. These three and a few
other causes hastened the growth of the trade union movement in India.
No doubt there were a few unions in existence even before 1918 ; for
example, the Printers' Union in Calcutta was started in 1905 and an attempt was made in Bombay in 1906 to start a Postmen's Union. But such
attempts were only few and they did not receive that encouragement
from the public which was their due. They thus remained isolated
examples of early trade unionism and had to mark their time till the
advent of the more propitious period when, for reasons stated above, the
trade union movement received a great impetus in India.
Although trade unionism in its Western form is thus comparatively new in India, it is frequently affirmed that the principle of
trade unionism is by no means new. T h e following passage from a
speech made by one of the leaders of political t h o u g h t in India is of
interest in this connection 1 :
The trade union movement may be new in its present form. But the
essence of the movement and the principles of the movement of trade
unionism are as ancient and old in India as the snow-clad mountains of
the Himalayas. What is the principle of trade unionism ? What is
at the back of it ? What is the foundation of it ? The foundation of
it is the right of collective bargaining, and the right of certain
people to lay down their terms under which they will serve the
public or do certain work, and also to impose penalties for the
1
p. 4.
Extract from the Legislative
Assembly
Debates, Vol. VII, No. 11,
334
FREEDOM OF ASSOCIATION
breach or the violations of any decisions given by those combinations
or of any rules laid down by them. Now, what are the occupational
castes in India? They are practically closed trade unions. And how
have the trade unions developed ? AU authorities on trade unionism are
agreed that the ancient guilds of India and the guilds of mediaeval Europe
were the ancestors of trade unions as we see them to-day. We have still
this class of institution in India, though not exactly in the same form in
which they existed in the olden times. We have many occupational castes
which are working practically in the same way as trade unions are working in other countries. What are these strikes? Strike is only another
name for hartal. Who has not heard of the hartal of sweepers, or of watercarriers, or of butchers, or of similar castes ? Whenever any of these
classes of workers want the redress of their grievances, which otherwise
they cannot get from society or from certain classes of society, they go
out on hartal. Do you know that the decisions of the panchayats of these
occupational castes are as binding upon all their members as the decisions
of any trade union could possibly be ? Whatever may be the Statute law
and whatever threats of prosecution you may hold out, no member of an
occupational caste has the courage or can possibly have the courage to
violate the decisions of their panchayats or of doing anything in disregard
of the orders of that panchayat ; they obey them literally ; they pay the
fines and they abstain from working for those families or for those persons who have been interdicted by the vote of the panchayat as not to be
served. We see it every day and therefore the real principles of trade
unionism and the essence of them are not new to India. The movement
is not in its infancy here. The movement in its present " civilised "
form—and I would like to put the word civilised in inverted commas—
with its account books and printed rules and by-laws may be new ; but
the movement itself is certainly not new, and even to-day the Government
do not in an3^ way prosecute those caste people who go on hartal in the
way in which I have stated before you, and who impose their own rules
and lay down their own conditions of service. They restrain and prevent
people from going and serving anybody against those rules and except
under conditions which they have laid down, and the Government never
thinks of prosecuting them.
Of the actual numerical strength of trade unions it is difficult
to obtain any definite information. T h e Directory of Trade
Unions,
published by the All-India Trade Union Congress, purports to give
details of eight federations and 167 trade and labour unions in all 1.
By far the largest and best organised trade unions are those in the
Government service (railway and postal services) and the textile
trade.
T h e only trade unions for which official data are available are
those located in the Bombay Presidency. T h e following table shows
the fluctuation in the number of these unions and their membership,
quarter by quarter, during the last four years 2 .
1
A considerable uumber of these unions are credited with a membership of one or two hundred only.
2
For further details of trade unions in the Bombay Presidency, see
files of the Bombay Labour Gazette, particularly those for June and
September 1926.
335
INDIA
Three
months
ended
ist day
Percentage ;j
Membership ! increase -t- 11
at end of , or decrease- ,'
quarter
on previous ;
1 quarter
|-
Number
of
unions
J u n e 1922 1 22
S e p t . 1922 ', 23
Dec. 1922 | 22
M a r . 1923 ! 22
J u n e 1923 ¡ 2i
S e p t . 1923, 21
Dec. 1923 | 19
M a r . 1924 ! 19
J u n e 1924 ! 21
.
57.914
52,776
51.472
48,609
51.276
41,646
46,037
48,502
49.729
S.87
2.47
5-45
+ 5-o8
- 18.77
+ 10.54
+
5-4
+ 2.5
_,
three
°t°s
enden
: '
Number
of
unions
Membership
at end of
quarter
Sept. 1924
Dec. 1924
' Mar. 1925
1 June 1925
Sept. 1925
Dec. 1925
Mar. 1920
J u n e 1926
Sept. 1926
21
36
36
38
S«
38
5*
53
56
47.242
52,277
5I.Ó25
53.59 1
54.175
49.3 I 8
59.544
04,572
m0
xst
day
72,411
Percentage
increase -tor decreaseon previous
quarter
5-0
+ 10.7
1-25
+ 3-8
+
1.09
8.97
+ 20.73
+
8.44
+ 12.14
T h e most important central trade union body is the T r a d e Union
Congress. T h e account given of this organisation by its Assistant
Secretary in the Directory of Trade Unions 1 is of interest :
" . . . There is only one labour organisation in India which has coordinated all kinds of labour in all the provinces of the country and it is
the All-India Trade Union Congress. This body was organised in Bombay
in 1920 and since then has been holding its sessions at different industrial
centres such as Bombay, Jharia, Lahore, and Calcutta. It must be confessed that much work was not done in the past in the direction of coordinating the work of the different unions and bringing them under the
banner of the T.U. Congress. The reasons for this state of affairs are
mainly two : one was that the individual unions did not pay much
attention to understand the necessity of joining hands with other unions,
and, therefore, they remained practically indifferent towards this important
part of the trade union movement. The other reason was that the Trade
Union Congress did not make much effort to build up its strength by
affiliating as many unions to it as possible. The result was that till last
year only a few unions were on the affiliated list of the Trade Union
Congress. But now things have changed and both the unions and the
congress have come to realise the absolute necessity of co-ordination.
To-day there are nearly 40 unions (out of one hundred which have joined
the trade union movement) from all parts of India, which have been
affiliated to the Trade Union Congress. Almost all the trades are represented on it. It now represents over 100,000 organised workers in India
and is, therefore, the greatest representative body of labour in this country. There is no other labour organisation which can challenge its authority- to speak on behalf of the organised workers. Even when the Congress
had not attained its present strength and solidarity, there was no organisation which could stand comparison with it in respect of its representative character. The Government of India have themselves acknowledged
the Congress as a representative labour body by accepting on all but one
occasion its selections for the International Labour Conference. The
Trade Union Congress has now got its provincial committees in four
1
Cf. pp. iv and v. This Directory, it should be noted, was published in 1925, and the remarks made apply to a period antecedent to
that date.
336
FREEDOM OF ASSOCIATION
important provinces of Bombay, Bengal, Madras, and Central Provinces
which will greatly stimulate the work of co-ordination that the Congress
has now undertaken in all seriousness and ere long it will considerably
increase its strength and add to its solidarity.
§ 2. — Development of the Legislative Regulation of the
Right of Association in India
Previous to the passing of t h e Indian T r a d e Unions Act, 1926,
' the legal position as regards the right of association w a s that the
State did not prevent any individual from joining an association
providing this association conformed to the ordinary law. I n other
words an association of persons was not illegal merely because it was
a n association. Apart from this the position w a s not at all clearly
defined. T h e following passage from a speech delivered in the Indian
Legislative Assembly by the mover of the resolution which eventuated
in the adoption of the T r a d e Unions Act illustrates the general uncertainty 1.
What is important is that the status of the trade unionists and trade
union officials and trade union organisations must be determined and
fixed in the eyes of the law. At present the position is very doubtful.
In England some years back the trade unions were illegal. I do not know
what the position in India is. I am not a lawyer ; but I take it that
here a trade union is a legal organisation. In England strikes were not
legal for a number of years. I do not know what the position of strikes
to-day in India is. It may be legal or it may be illegal. At least for the
present nobody has come forward and said that strikes are illegal.
O n e important legal decision affecting trade unions was made in
1920 w h i c h , in view of its effect on the attitude of trade unions
towards legislation on freedom of association, requires to be briefly
stated.
I n this case, k n o w n as the Buckingham Mill case 2 , a n interim
injunction was granted against the lock-out committee of the Madras
L a b o u r Union, forbidding this committee to induce certain workers
to break their contracts by refusing to return to work.
T h e circumstances of t h e case were these. Following on a disp u t e over the promotion of a certain worker, assaults were committed
on members of the management and, as an outcome, a notice was
posted stating that " in view of the assault committed on the weaving
1
Extract from the Legislative
Vol. I, No. 7.
2
C.S., No. 829 of 1920.
Assembly
Debates,
1 March 1921,
INDIA
337
master . . . and of the general turbulent attitude of the weavers, the
mill will be closed until further notice ". Some ten days later a
second notice was posted, dismissing the weavers, but offering to
re-employ them on certain conditions, and stating that if a sufficient
number of weavers came back to work the mill would be re-opened.
No action was taken by the workpeople in response to this notice,
and members of the union advised the men not to go back to work,
except upon certain conditions not specified. It was contended by the
millowners that the members of the union had no good grounds for
their action, which was inspired by malicious motives, and that they
were keeping the workmen out with a view to injuring the plaintiffs
by preventing the mill from working.
The chief points considered relevant by the judge were that the
leader of the union had in the past had political affiliations designed
to obtain Home Rule for India, and that he had not placed the facts
of the matter before the workpeople in a fair and accurate manner,
having stated that the original notice amounted to a dismissal of all
the workmen, although he was perfectly well aware of the rules of
the mill, one of which provided that when the factory required to be
stopped for not less than 30 days, no operative was entitled to absent
himself without leave. These considerations, together with others
of less importance, prompted the conclusion that the action of the
leader of the lock-out committee was not framed with the sole intention of benefiting the workmen, but was done maliciously, with
the intention of injuring the plaintiffs by making their workmen
break their contracts.
A like conclusion was reached as regards the remaining members
of the lock-out committee : " The committee therefore induced the men
to break their contracts, and it is a legitimate inference from the words
and actions of its members that the committee was formed with that
object and it had thus formed a conspiracy of ten people whose intention was to induce the workpeople to break this contract. "
On 1 March 1021, the year following this decision, Mr. N. M.
Joshi, General Secretary of the All-India Trade Union Congress,
moved a resolution in the Imperial Legislative Assembly, which,
after some amendment, was couched as follows : " This Assembly
recommends to the Governor-General in Council that he should take
steps to introduce as soon as practicable, in the Indian Legislature,
such legislation as may be necessary for the registration of trade unions
and for the protection of trade unions. "
Freedom of Association
,,
338
FREEDOM OF ASSOCIATION
T h e Government of India, in a Circular Letter dated 12 September IQ2I, addressed to all local governments and administrations, p u t
out the tentative proposals of the Government on the subject of trade
union registration. I n t h e light of criticisms and opinions received
in answer to this letter, a trade union Bill was drawn u p and similarly
circulated. After some a m e n d m e n t in the Imperial Legislative
Assembly, this Bill was finally adopted in 1926 and came into force
1 J u n e 1927.
T H E P R E S E N T POSITION OF T H E R I G H T OF ASSOCIATION
T h e present, position of t h e right of association in India is t h u s
made clear b y the I n d i a n T r a d e Unions Act of 1926, although the
exact meaning of certain of its provisions can only be settled by
judicial interpretation as and when actual cases arise. I t m a y , however, be noted that unregistered trade unions were deliberately not
included within the scope of the Act, and their legal position therefore
remains the same as before t h e Act was passed.
Registered
Trade
Unions
T h e Indian T r a d e Unions Act, 1926, is purely permissive in
character. I n the words of its mover before the Legislative Assembly,
" if adopted, it will compel no trade union to register. T o those w h o
decide t o register, a n d w h o are prepared to accept t h e responsibilities
which registration entails, we offer a privileged position which includes
protection in regard t o their legitimate actions, and also protection of
their funds against speculation or dissipation on extraneous objects.
A n d we have endeavoured to avoid imposing any responsibility which
a trade union would be reluctant to accept " 1.
Following the British usage t h e term " trade union " is defined
in the T r a d e Unions A c t , 1926, as
. . . any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and
employers or between workmen and workmen, or between employers and
employers, or for imposing restrictive conditions on the conduct of any
trade or business, and includes any federation of two or more trade
unions :
Provided that this Act shall not affect—
(i) any agreement between partners as to their own business :
fii) any agreement between an employer and those employed by him
as to such employment ; or
(iii) any agreement in consideration of the sale of a goodwill of a
business or of instruction in any provision, trade or handicraft.
1
Extract from the Legislative
Assembly
Debates, Vol. V. No. 2, p.I
INDIA
339
The Act thus includes employers' organisations and their activities, as well as workers' organisations.
In the following brief account of the Act, it is proposed to consider
its provisions under four main heads : the registration and deregistration of trade unions ; the objects of registered trade unions ;
immunities ; -and penalties.
The Registration and Deregi siration of Trade Unions
The Indian Trade Unions Act, 1926, lays down explicit regulations as to the circumstances in which a union may be registered and
deregistered.
Any seven or more members of a trade union may apply for
registration of that trade union under the Act. Such applications
must be accompanied by copies of the rules of the trade union and
by a statement of certain particulars, namely : the names, occupations
and addresses of the members making the application, the name of
the trade union and the address of its head office, and the titles,
names, ages, addresses and occupations of the officers of the trade
union. Where a trade union has been in existence for more than one
year a general statement of the assets and liabilities of the trade union
must accompany the application for registration.
A trade union is not entitled to registration under the Act unless :
(1) the executive is constituted in accordance with the provisions of the Act, and
(2) its rules provide for certain necessary matters.
As regards the constitution of the executive of the trade union,
it is laid down (section 21) that no person who has not attained the
age of 18 years shall be an officer of any registered trade union, and
that not less than one-half of the total number of the officers of every
registered trade union shall be persons actually engaged or employed
in an industry with which the trade union is connected (section 22).
It is provided, however, to meet extraordinary cases, such as that of
seamen's trade unions, that the local government may by special or
general order declare that this latter provision shall not apply
to any particular trade union or class of trade unions.
The necessary matters that must be provided for in the rules are
set out seriatim (section 6).
In the first place the name of the trade union must be stated. If
the name under which the trade union is proposed to be registered is
340
FREEDOM OF ASSOCIATION
identical with or closely resembles the name of some other existing
trade union, the Registrar can refuse to register the union until the
name has been altered (section 7 (2)).
The rules of a trade union applying for registration must state the
whole of the objects for which the said union has been established, and
the whole of the purposes for which the general funds of the
trade union are applicable. They must, furthermore, provide
for the maintenance of a list of the members of the trade union
and afford adequate facilities for the inspection of this list by the
officers and members of the trade union. Provision must be made
for the admission of ordinary members, being persons fifteen years of
age or over (section 21) actually engaged or employed in an industr}'
with which the trade union is connected, as also the admission of a
number of honorary or temporary members as officers, elsewhere
allowed for.
The rules of the union must also lay down the conditions under
which any member shall be entitled to any benefit or subject to any
fine or forfeiture ; the manner in which rules shall be amended, varied
or rescinded ; the manner in which officers of the trade union shall
be appointed and removed ; provisions for the safe custody of the
funds of the union, including an annual audit ; and the manner in
which the trade union may be dissolved. It is also laid down (section
28) that an annual statement, duly audited, must be furnished to the
Registrar of all receipts and expenditure of every registered trade
union.
The certificate of registration of a trade union may be withdrawn
or cancelled by the Registrar at any time on the application of the
trade union itself, or if the Registrar is satisfied that the certificate
has been obtained by fraud or mistake, or that the trade union has
ceased to exist or has wilfully and after notice contravened any provision of the Trade Unions Act, or allowed any rule to continue in
force which is inconsistent with that Act, or has rescinded any rule
requisite for registration. Not less than two months' notice
must be given before the certificate is withdrawn or cancelled
otherwise than on the application of the trade union itself. In the
event of any person feeling himself aggrieved by the refusal or cancellation of registration, he may appeal to a judge appointed by the
local government for this purpose. Such a judge may, after enquiry,
dismiss the appeal or otherwise direct the Registrar to register the
union or set aside the cancellation of the certificate as the case may be,
INDIA
34 !
In the event of the dismissal of an appeal, the person aggrieved has the
right of appeal to the High Court.
In addition to these provisions for the registration and deregistration of trade unions, it is provided that any registered trade union
may, with the consent of not less than two-thirds of the total number
of its members, change its name, and any two qi more registered
trade unions, provided that at least one-half of the members of each
vote and that at least 60 per cent, of these votes are in favour of the
proposal, may become amalgamated as one trade union with or
without dissolution or division of funds.
Objecis
The objects on which the funds of a registered trade union may
be spent are expressly and exhaustively laid down in the Trade
Unions Act, although other objects may be added by the GovernorGeneral in Council. These objects include first of all the necessary
expenses incurred in the running of the trade union—the payment of
salaries, allowances and expenses to officers ; the payment of expenses
of administration, including the auditing of the accounts ; and the
prosecution or defence of any legal proceeding to which the trade
union or any member of it is a party when such prosecution or defence
is undertaken for the purpose of securing or protecting any rights of
the trade union as such, or any rights arising out of the relations of
any member with his employer or with a person whom the member
employs. The funds of a registered union may also be employed for
fihe upkeep of a periodical published mainly for the purpose of
discussing questions affecting employers or workmen as such.
In the furtherance of its industrial objects, the funds of a trade
union may be used for the conduct of trade disputes on behalf of the
trade union or any member thereof, and for the compensation of
members for loss arising out of trade disputes. It is also provided
that contributions may be made to any cause intended to benefit workmen in general, provided that the expenditure in respect of such
contributions in any financial year shall not at any time during that
year exceed one-fourth of the total funds of the trade union at that
time.
On the social side the trade union may use its funds to make
allowances to members or their dependants on account of death, old
age, sickness, accidents, or unemployment, including the issue of,
or the undertaking of liability under, policies of assurance on the
342
FREEDOM OF ASSOCIATION
lives of members or under policies insuring members against sickness,
accident, or unemployment. T h e funds may be used also for the
provision of educational, social, or religious benefits for members
(including the payment of the expenses of funeral or religious ceremonies for deceased members) or for the dependants of members.
Ün the political side it is provided that a registered trade union
m a y constitute a separate fund from contributions separately levied
for the promotion of the civic and political interests of its members,
specifically, the payment of election expenses, the holding of political
meetings or the distribution of political literature, the maintenance of
a n y person w h o is a member of a n y legislative body, and the registration of electors or the selection of a candidate. I t is laid down t h a t
no member shall be compelled to contribute to the political fund thus
constituted, and a member w h o does not contribute to the said fund
must not be excluded from any benefits of the trade union or placed
in any respect either directly or indirectly under any disability as compared with other members of the trade union nor can any applicant
be refused admission on such grounds.
Immunities
Registration under the Indian T r a d e Unions Act gives right to
certain " privileges and immunities ".
Every registered trade union is considered as a body corporate
and is entitled to the rights of perpetual succession and a common seal
with power to acquire and hold both movable and immovable property
a n d to contract.
Officers and members of a trade union registered under the Act
are specifically protected in respect of certain actions which m i g h t
otherwise expose them to legal proceedings. I t is laid down that n o
officer or member of a registered trade union shall be liable under
the Conspiracy L a w '' in respect of any agreement made between the
members for the purpose of furthering any of the specified objects
of the trade union unless such agreement is an agreement to commit
an offence.
Equally important is the i m m u n i t y granted from civil suit in
certain cases. Under section 18 of the Act it is provided that :
_(i) No suit or other legal proceeding shall be maintainable in any
Civil Court against any registered trade union or any officer or member
1
The Conspiracy Law in India is laid down in section 120B of the
Indian Penal Code, and reads as follows : " 1. Whoever is a party to a
INDIA
343
thereof in respect of any act done in contemplation or furtherance of a
trade dispute to which a member of the trade union is a party on the
ground only that such act induces some other person to break a contract
of employment or that it is in interference with the trade, business, or
employment of some other person or with the right of some other person
to dispose of his capital or of his labour as he wills.
It is further provided under the same section that :
(2) A registered Trade Union shall not be liable in any suit or other
legal proceeding in any Civil Court in respect of any tortious act done in
contemplation or furtherance of a trade dispute by an agent of the Trade
Union if it is proved that such person acted without the knowledge of, or
contrary to express instructions given by, the executive of the Trade
Union.
Lastly, the question of agreements in restraint of trade is covered
in section 19 1 :
Notwithstanding anything contained in any other law for the time
being in force, an agreement between the members of a registered trade
union shall not be void or voidable merely by reason of the fact that any
of the objects of the agreement are in restraint of trade.
T h e T r a d e Unions Act thus expressly lays down for registered
trade unions the right of the trade union to corporate existence ; and
confers i m m u n i t y from prosecution for criminal conspiracy in respect
of an agreement made between members of a trade union (unless the
agreement is an agreement to commit an offence), from civil suit in
certain cases, a n d from legal difficulties arising out of the fact that
criminal conspiracy to commit an offence punishable with death, transportation, or rigorous imprisonment for a term of two years or upwards
shall, where no express provision is made in this Code for the punishment
of such a conspiracy, be punished in the same manner as if he had abetted
such offence.
" 2. Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be
punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. "
The definition of criminal conspiracy is laid down in section 120A
in the following terms :
" When two or more persons agree to do, or cause to be done, (1) an
illegal act, or (2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy. Provided that no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more
parties to such agreement in pursuance thereof. "
1
The Indian Law in regard to restraint of trade is contained in
section 27 of the Indian Contract Act, which lays down that " every
agreement by which anyone is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void ".
344
FREEDOM OF ASSOCIATION
any of the objects of an agreement between the members of a registered trade union are in restraint of trade.
Picketing
N o mention is made of picketing in the Trade Unions Act, t h e
reason, as stated in the Government Circular Letter previously referred
t o , being as follows :
The experience of the last few years has not revealed any urgent
necessity for imposing a general restriction on picketing. Those trade
unionists who are willing to confine picketing to systematic persuasion
would have reason to resent further limitations on their powers : those
in whose hands it degenerates into intimidation can be dealt with by the
ordinary criminal law. Provisionally, therefore, the Government of India
have decided to include no provisions relating to picketing.
On this question various contrary opinions have been expressed.
T h e following extract taken from t h e comments* made by local
governments on the draft of the T r a d e Unions Bill is typical of m a n y :
When the Non-Co-operation Movement was at its height picketing
was employed extensively and effectively, specially in connection with
the crusade against the excise revenue. This form of moral coercion is
one that appeals particularly to Indian minds and picketing in India can,
without resort to actual overt acts of violence or intimidation, be developed
into a system of social boycott and caste ostracism which leaves English
forms of peaceful persuasion far behind. For these reasons it is most
desirable definitely to forbid it, since any measure of restraint short of
complete prohibition would be in practice unenforceable.
Penalties
Penalties are laid down in the Act providing against t h r e e types
of offences. If default is made on the part of any registered trade
union in furnishing any document required under the Act, every
person b o u n d b y the rules of t h e trade union to furnish this docum e n t is punishable by fine which may extend to five rupees 1, and,
in the case of continuing default, with an additional fine which may
e x t e n d to five rupees for each week after t h e first during w h i c h t h e
default continues, provided that the aggregate fine shall not exceed
fifty rupees. A n y false entry in or omission from the details furnished to t h e registrar is punishable b y fine which m a y extend t o
500 rupees. Supplying false information regarding the rules of a
registered trade union, or representing the rules of an unregistered
1
1 rupee = one shilling and sixpence.
INDIA
345
trade union as being those of a registered trade union, is punishable
with a fine which m a y extend to 200 rupees.
Unregistered
Trade
Unions
During the debates on the Bill the point was frequently raised
whether the immunities and privileges granted to registered trade
unions were by presumption denied to unregistered unions. T h e
following passage from one of the speeches made p u t s this question
concretely 1 :
The law on these points at the present moment in India is in a very
fluid condition. The Honourable Member in charge of the Bill, while
introducing the Bill, said that under the law as it stood at present, people
going on strike or acting in combination in restraint of trade could be
prosecuted under the conspiracy sections of the Indian Penal Code and
could be proceeded against in civil courts for damages for breach of
contract and otherwise. Well, Sir, so far as I am aware—I say so subject
to correction—trade unions now have been existing in this country for
a number of years ; we have been hearing of strikes all round and we
hgve never heard of any prosecution having been started by Government
under the conspiracy sections of the Indian Penal Code against anybody
who took part in a strike. There has been, I am told, one case of damages
in the Madras Presidency, but it was not proceeded with. Anyhow I do
not know the facts ; but I have not heard of any other cases having
been instituted either in Bombay or at Nagpur, or at Ahmedabad, where
there have been many strikes, either for damages on the ground of breach
of contract or on the ground of torts, against any strikers or against any
combination of workers. "That is the present condition of things which
this law proposes to change. This law restricts practically the enjoyment
of these rights and privileges to registered trade unions only. The
question arises as to what will be the status of unregistered trade unions
after the passing of this Bill. Supposing a large number of workers in the
Bombay mills strike. Some will belong to the registered trade unions,
others will not belong to any registered, trade unions ; some may
be members of unregistered trade unions or they may be members of no unions at all. Suppose a thousand, or five thousand, or ten
thousand people strike. Will Government give protection only to those
who are members of registered trade unions and prosecute those who are
not members of a registered trade union ? It will be an absolutely anomalous position ; and if the Government do not mean to do that, then
where was the use and where was the necessity of making this distinction
between registered and unregistered trade unions ? It will only help
mischievous people to insist upon prosecutions being started or upon
proceedings being taken against some of the workers.
I n this connection the two following passages from the Circular
Letter dated 30 August 1924, addressed b y the Government of I n d i a t o
local governments a n d commissioners asking for opinions on the draft
Bill, would appear apposite, although of course not ctefinitive :
1
Extract from the Legislative
pp. 4 and 5.
Assembly
Debates, Vol. VII, No. 11
346
FREEDOM OF ASSOCIATION
Unregistered unions will be left, both as regards privileges and obligations, in their present position. . .
Under the existing law, officers and members of a trade union who,
in order to further a strike, induce workmen to break their contracts with
their employers can be sued in the Civil Courts and may in certain
circumstances be liable to criminal prosecution.
I n 1927 a Bill was brought forward to amend the Indian Penal
'Code, the object being to protect unregistered trade unions from the
law of criminal conspiracy. T h i s Bill was circulated, b u t a motion
to refer it to a Select Committee was defeated, after debate, on
8 September 1928 \
Special
Conditions
attaching
to Government
Service
U n d e r the Indian T r a d e U n i o n s A c t 1926, no distinction is m a d e
between Government servants and other employees. In practice,
however, a certain restriction would appear to exist so far as participation in political activities is concerned. Under Rule 23 of the Gove r n m e n t Servants' Conduct Rules, a Government servant is debarred
from t a k i n g part in or subscribing in aid of a n y political movement
in I n d i a or relating to I n d i a n affairs. Following this rule the DirectorGeneral of Posts and Telegraphs recently refused to permit a postal
union to join the All-India T r a d e Union Congress so long as t h e
Congress retains political propaganda as part of its programme 2 .
T h e r e is,, however, no restriction on Government servants forming
themselves into trade unions for the purpose of protecting their own
interests.
T h e following note published in the Bombay Labour Gazette 3
is of interest as showing the general attitude of the Government
towards trade unions of Government employees :
1
The Government of India have decided, in view of Article 427 of the
Peace Treaty, which lays down the right of association for all lawful
purposes by the employed as well as by the employers, that official recognition will be accorded to associations of its employees which comply with
conditions set out in the form of rules. In the event of legislation being
passed which will permit of the registration of an association or associations, these shall be duly registered. In view of the particular character
of employment in the Police and Prisons Departments, more stringent
conditions in certain circumstances have been laid down. It will be
remembered that in England, the Police Act of 1919 after setting up a
1
8
3
See Legislative Assembly Debates, Vol. I l l , No. 4, pp. 1-9.
See Bombay Labour Gazette, Vol. V, No. 10, June 1920.
M a r c h 1922, p . 26.
INDIA
347
statutory federation to represent the interests of the Police, makes it
illegal for a policeman to join a trade union or association having for its
objects control of the pay, pension or conditions of service of the Police
Force, and any person contravening the provisions forfeits all pension
rights and his membership of the Police Force. Copies of the rules
drawn up by the Government of India will be communicated to any association or proposed association of Government employees. These rules do
not appi}' to any employee of Government who is subject to military law
or to the Indian Array Act, 1911.
CONCLUSION
The development of the right of association in India is thus at
the beginning of an epoch. Ten years ago trade unions in their
Western form, if not altogether unknown, were certainly exceedingly
rare. There is now a trade union movement which, although far
from powerful or strongly organised as yet, has nevertheless a certain
unmistakable quality of permanency about it.
The outstanding event is the passing of the Indian Trade Unions
Act, 1926. This Act was the outcome of considerable agitation on the
part of Indian trade union leaders. It .does not give the trade unions
all that these leaders wished it to give.. In particular, the immunities
it confers only extend to trade unions registered under the Act, which
registration involves, among other things, certain restrictions on the
uses of trade union funds, particularly for political purposes and for
the purpose of subscribing to other unions. On the other hand, the
Act does confer certain definite immunities of considerable importance
to trade unionists, and especially so m view of a previous legal decision
which appeared to lay open a strike committee to claims for damages
in the event of their inducing workers to break their contracts. To
what extent unions will register under the Act and what the exact
position will be of trade unions that do not register remains to be seen.
In conclusion, it is of particular interest to note the influence
of Part X I I I of the Peace Treaty and of the work of the International
Labour Organisation upon the recent evolution of the right of association in India. One prominent example is the action of the Government of India in ratifying the Convention relating to the rights of
association and combination of agricultural workers. As already
indicated also, this influence has played a prominent part in the
evolution of trade unionism in India and is quoted in connection
with the Government's recognition of trade unions of its employees.
In addition, it has been frequently referred to in the deliberations of
the Legislative Assembly. Thus, in the debate on the resolution
349
INDIA
calling for legislation on t h e right of association, t h e Government
spokesman expressed himself as follows :
Trade unions are not only inevitable, but our treaty conditions with
Germany and Austria demand that we shall recognise " the right of
association for all lawful purposes by the employed as well as the employer ". We cannot now go back on our obligations, obligations incurred
by treaties that have been ratified on behalf of India as well as on behalf
of other parts of the British Empire ».
In the course of the debate m the l e g i s l a t i v e Assembly on t h e
Bill itself, one of the speakers argued :
My contention is that you are pledged to the principle of this legislation. Under Article 427 of the Peace Treaty every subscribing nation is
pledged to the recognition of the right of association. You cannot go
back on that. That right is inherent and it is because that right is
inherent that we are claiming that you should introduce this legislation 2 .
Another speaker referring to t h e same question said :
When I had the pleasure of visiting the International Labour Office
in Geneva last summer it was brought to my notice that of all the Governments which took part in the International Labour Conference the Government of India stand in the forefront of those that have given effect by
legislation to the greater portion of the Resolutions passed in these Conferences. It is a matter, Sir, on which not merely this House .but the
Government of India must be congratulated ; and it is in the fitness of
things that the Government must have now come forward with this
measure to place trade unions on a better footing
and to give them the
legal status which they lack at present. . . 3.
1
Extract from the Legislative Assembly
(1 March 1921.)
2
Ibid., Vol. V, No. io, p. 11.
3
Ibid., Vol. V, No. 10, p. 15.
Débales, Vol I, No. 7, p. 3.
APPENDIX
T h e following are the clauses of the T r a d e Disputes Act, 1929,
relating especially to freedom of association. T h e measure is to
remain in force for a period of five years only :
15. (1) Any person who, being employed in a public utility service 1,
goes on strike in breach of contract without having given to his employer,
within one month before so striking, hot less than fourteen days' previous
notice in writing of his intention to go on strike, or, having given such
notice, goes on strike before the expiry thereof, shall be punishable with
imprisonment which may extend to one month, or with a fine which
may extend to fifty rupees, or with both.
(2) Any employer carrying on any public utility service who locks
out his workmen in breach of contract without having given them,
within one month before such lock-out, not less than fourteen days'
notice in writing of his intention to lock them out, or, having given
such notice, locks them out before the expiry thereof, shall be liable to
imprisonment which may extend to one month, or to a fine which may
extend to one thousand rupees, or with both.
(3) Where the employer committing an offence under subsection (2)
is a corporation, company or other association of persons, any secretary,
director or other officer or person concerned with the management thereof
shall be punishable as therein provided unless he proves that the offence
was committed without his knowledge or without his consent.
(4) No Court shall take cognisance of any offence under this section
or of the abetment of an3¡- such offence save on complaint made by, or
under authority from, the Governor-General-in-Council or the Local
Government.
(5) No Court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence under this section.
16. (1) A strike or a lock-out shall be illegal which :
(a) has any object other than the furtherance of a trade dispute
1
According to section 2 (g) " public utility service " means : (i) any
railway service which the Governor-General-in-Council may, by notification in the Gazette of India, declare to be a public utility service jïor
the purposes of this Act ; or (ii) any postal, telegraph or telephone
service ; or (iii) any industry, business or undertaking which supplies
light or water to the public ; or (iv) any system of public conservancy
or sanitation.
INDIA
351
within the trade or industry in which the strikers or employers
locking out are engaged ; and .
(t>) is designed or calculated to inflict severe, general and prolonged
hardship upon the community and thereby to compel the Government to take or abstain from taking any particular course of
action.
(2) It shall be illegal to commence or continue, or to apply any sums
in direct furtherance or support of, any such illegal strike or lock-out.
(3) For the purposes of this section :
(a) a trade dispute shall not be deemed to be within a trade or
industry unless it is a dispute between employers and workmen,
or between workmen and workmen, in that trade or industry,
which is connected with the employment or non-employment or
the terms of the employment, or with the conditions of labour,
of persons in that trade or industry ;
(b) without prejudice to the generality of the expression " trade or
industry ", workmen shall be deemed to be within the same
trade or industry if their wages or conditions of employment are
determined in accordance with agreements made with the same
employer or group of employers.
(4) A strike or a lock-out shall not be deemed to be calculated to
compel the Government unless such compulsion might reasonabl3- be
expected as a consequence thereof.
17. (1) If any person declares, instigates, incites others to take part
in. or otherwise acts in furtherance of, a strike or lock-out which is illegal
under the provisions of section 16, lie shall be punishable with simple
imprisonment which may extend to three months, or with fine which
may extend to two hundred rupees, or with both :
Provided that no person shall be deemed to have committed an
offence under this section by reason only of his having ceased work-or
refused to continue to work or to accept employment.
(2) No Court shall take cognisance of any offence under this section
save on complaint made by, or under authority from, the GovernorGeneral-in-Council or the Local Government.
(3) No Court inferior to that of a Presidency Magistrate or a
Magistrate of the first class shall try any offence under this section.
18. (1) No person refusing to take part, or to continue to take part,
in any strike or lock-out which is illegal under the provisions of section 16
shall, by reason of such refusal or by reason of any action taken by him
under this section, be subject to expulsion from any trade union or
society, or to any fine or penalty, or to deprivation of any right or benefit
to which he or his legal representatives would otherwise be entitled, or
be liable to be placed in any respect, either directly or indirectly, under
any disability or at any disadvantage as compared with other members
of the union or society, anything to the contrary in the rules of a trade
union or society notwithstanding.
(2) Nothing in the rules of a trade union or society requiring the;
settlement of disputes in any manner shall apply to any proceeding for
enforcing any right or exemption secured by this section, and in any
such proceeding the Civil Court may, in lieu of ordering a person who
has been expelled from membership of a trade union or society to be
restored to membership, order that he he paid out of the funds of the
trade union or society such sum by way of compensation or damages
as that Court thinks just.
CHINA
CHAPTER I
HISTORY OF
LEGISLATION
§ 1. — Former Law (Before the Revolution of 1911)
I n China, until the Republic was established, the right of
association in general, including that of association for trade purposes,
was governed only by custom.
T h e legislature considered it
sufficient to enact measures repressing secret societies, which were
suspected of being revolutionary and held to be dangerous to t h e
established order.
T h e following are extracts from the Ta Tsing Lu Li 1, concerning
secret societies :
All persons who, . without being related or allied by marriage,
establish a brotherhood among themselves by the ceremony of mutual
blood tasting while burning incense, shall be deemed guilty of the
intention to commit the crime of rebellion, and the head of the association shall suffer death b}7 strangulation.
The penalty to be inflicted on accomplices shall be that of the
immediately inferior degree.
All associations that meet in secret are obviously set up to oppress
the weak. The leaders and principal members of these associations shall
be treated as vagabonds and outlaws and in consequence they shall be
banished for ever to the remotest provinces ; the other members of the
said associations shall be deemed to be accomplices and punished by a
penalty of the immediateh' inferior degree.
Finally, all vagabonds and outlaws convicted of having held
meetings under the special denomination of Tien Te Hwei (i.e. the
Association of Heaven and Earth) shall suffer death by decapitation as
soon as they have been convicted of their crime ; and all those who
accompanied them to support them or incited them to commit their
practices shall suffer death by strangulation.
T h e severity of the law with regard to secret societies was
balanced by the liberality of custom with regard to public associations,
1
Code of the Tsing Dynasty (Mancini D\"nasty up to the Revolution of 1911). '
Freedom of Association
23
354
FREEDOM OF ASSOCIATION
including trade associations. This could not have been otherwise in
view of the fact that the individual occupied only a negligible position
in the old-established Chinese society, which was dominated by the
family spirit. The family had become the highest form of association,
around which an infinitely varied multitude of collectivities gravitated : provincial associations, trade associations or guilds, local
administrative and safety associations, mutual aid associations,
religious associations, etc. These associations, although without legal
status, enjoyed the greatest liberty in fact. Certain rules concerning
their working had always been recognised by custom and respected
by the courts, and ultimately became part of customary law. Among
these rules, reference may be made, for instance, to those concerning
the functions of guilds, such as the fixing of wages and the regulation
of the conditions of apprenticeship.
§ 2. — The Constitutional Guarantee of the Right of Association
As soon as the Republic was founded, the provisional
Constitution of u March of the year I, i.e. 1912, established the
freedom of association and assembly at the same time as the freedom
of the press and of speech (Article 6).
The Constitution of 1 May 1914, promulgated by the President,
Yuan Shih Kai, shortly before his dictatorship, was somewhat less
generous, but nevertheless mentioned this principle of freedom, while
stating that the right was recognised only " within the limits fixed
by the law ". "
After the dictatorship and death of Yuan Shih Kai in 1916, the
provisional Constitution of 1912, and therefore also the freedom of
association, was restored.
The most recent Chinese Constitution, of 10 October 1923,
proclaimed by the President, Tsao Kun, declared that " citizens of
the Chinese Republic have the right to meet and found associations.
No restriction may be imposed on them except in cases specified by
the law ". This meant a return to the system of the 1914 Constitution,
establishing legal restrictions on the principle of freedom of
association. In brief, this system placed the right of association
at the mercy of the legislative, and even of the executive, authorities,
for in China the powers of the President of the Republic have always
been very wide.
As regards freedom of association for trade purposes in particular,
the Constitution was as silent as the earlier ones. Yet when this last
CHINA
355
Constitution was being drafted the workers' organisations had
addressed a petition to the Government asking for the establishment
of their freedom of association in the new Charter. Moreover, the
committee that drafted this new Constitution had prepared a Bill
relating to social economy which, in its opinion, was to form the
sixth chapter of the Constitution. T h e first section of this Bill stated
expressly that " any meeting or association intended to protect or
develop social welfare, whatever the qualities of its adherents or t h e
trade represented, may not be hampered by the law except in cases
of direct attack on the public safety " ; and section 7 of the same
Bill referred to trade associations in the following terms :
A National Economic Council shall be set up by the elected
representatives of the trade associations of China. From the social
economic point of view it shall have the following functions ;
(1) to make recommendations to the Government ;
(2) to reply to the Government's request for advice ;
(3) to submit Bills to the Government, which shall be bound to
communicate them to Parliament, before which the Council shall send
delegates to take part in the discussions and explain the grounds for
its proposals. "
T h i s Bill was rejected by the Constituent Assembly.
I n 1925 t h e Constitution of 10 October 1923 was in t u r n repealed
by the provisional Government of T u a n Chi-jui, a n d so far it has
been neither restored nor replaced. I n the Act of 10 October 1928
of the National Government of N a n k i n g there is n o mention of
freedom of association for trade purposes or of freedom of association
in general. I n this constitutional confusion the question of
incorporating the right of association and assembly in the Constitution
loses importance. F r o m a purely theoretical point of view, however,
if it is agreed, as has been claimed by some, that the 1912 Constitution
is now again in fgrce, it is still possible to attach a certain value to
the constitutional sanction of the right of association ; for on t h e
one hand, as already explained, the provisional Constitution of 19Í2
admitted the principle of the freedom of association and assembly
without explicit restrictions, and on the other, in the opinion of
t h e great majority, the judicial authority in China has the
right to check the constitutionality of legislative measures, and
therefore, in this particular case, the right to prevent the application
of laws and regulations restricting the freedom of association and
assembly.
T h e question of the freedom of association, a n d particularly of
that for trade purposes, arose not only in connection with the
356
FREEDOM OF ASSOCIATION
successive national Constitutions and the preliminary work on these,
but also in connection with the provincial Constitutions. I t m a y
be remembered that a few years ago the Federalist movement attained
some importance in China. I n point of fact, several provinces —
H u n a n , Chekiang, K w a n g t u n g , Szechwan — taking advantage of
political disturbances, h a d proclaimed their independence a n d
proposed at the same time to give themselves a written Constitution.
Some, such as H u n a u and Chekiang, actually promulgated their
Constitution. Others, such as K w a n g t u n g and Szechwan, had
prepared a draft. All included labour clauses, a m o n g which may
be found a common provision, placing it within the competence òf
the provincial authorities " to enact laws concerning the organisation
of trade associations ". I n the chapter on the provincial legislative
authority another provision referred to the powers of trade
associations :
Lawfully constituted trade associations may submit Bills concerning
either public education or social economy ; the provincial assembly shall
be bound to take these into consideration, and the associations shall
send delegates to explain the grounds for their Bills, but shall not have
the right to vote.
I n the original draft of the Chekiang Constitution in particular,
t h e r e were the following two Articles concerning trade associations
that were not maintained :
Article 3/1. — The workers shall have the ri°"ht to organise in trade
associations or federations of trade associations with a view to protecting
and promoting their social welfare. Anj^thing hampering the exercise
of this right in whatever form shall be prohibited.
Article 35. — With a view to benefiting by a better social policy,
the workers' trade unions and other trade associations shall have the
right to elect delegates for the constitution of a provincial or cantonal
economic council 1.
Since the most recent changes in the political and military
situation after 1924 and 1925, the provincial Constitutions, whether
actually promulgated or still in the state of a draft, h a v e been
repealed or become obsolete. T h e y show, nevertheless, the growing
interest taken in China during the last few years in the question
of freedom of association.
Since t h e unification of China by the K u o m i n t a n g , n o Constitution
in the t r u e sense has yet been established. T h e organic Act of
10 October 1928 on the composition of the Government does not
mention individual liberties.
1
Tong Fan Tsa Tsi (Chinese review), 1923.
CHIN-A
357
§ 3. — Acts and Bills on the Right of Association for Trade Purposes
U N D E R T H E F O R M E S PEKING GOVERNMENT
In the field of legislation proper no measures were taken to
establish the workers' right of association. As regards employers'
associations, an Act was passed on 12 September 1914 dealing with
chambers of commerce, which was amended on 14 December 1925.
Furthermore, the Act of 26 September 1912 had set up agricultural
associations, which consisted of employers rather than workers, and
included agricultural experts and other persons interested in the
development of agriculture. As a matter of fact, these associations
aimed at the study of agricultural questions rather than at the
protection of -trade interests. Finally, in the year VII (1918)
regulations were issued on trade associations in industry and commerce
(promulgated on 28 April 101S and amended in April 1923), which
aimed at legalising the existence of the guilds while at the same
time subjecting them to several restrictions. These regulations
expressly exclude from their scope trade associations in industry
and commerce formed by workers alone (section 2).
On the other hand, legislative measures and regulations had
been adopted against workers' assemblies. In the first place the
Police and Safety Regulations of 2 March 1914 stated in section 1
that " the administrative authorities, with a view to maintaining
public "order and peace and protecting the freedom and welfare of
the people, shall have police powers with respect to . . .(7)
workers' meetings. " Next, section 22 prohibited workers' meetings
in the following cases :
(1)
(2)
(3)
(4)
when .they lead to a regular and collective stoppage of
work ;
when they lead to a strike ;
when they lead to wage demands ;
when they lead to public disorder ;
(5)
when they organise action attacking good morals.
Lastly, section 36 added that " if the said meetings do not
comply with the order to dissolve, their members shall be liable to
imprisonment for not more than five months or a fine of 5 to 50 yen
(Chinese dollars) ".
Furthermore, section 224 of the old provisional Penal Code of
FREEDOM OF ASSOCIATION
35«
China 1 punished strike leaders and strikers by a penalty of up to the
fourth degree of detention (i.e. one to three years), or a fine of
300 yen for the former, and simple detention (one month to a year),
or a fine of not more than 30 yen for the latter. If the persons in
question had been guilty of violence or threats, the penalties were
still more severe (sections 164 and 167).
All these measures were considered Draconian by the workers.
Faced with this state of affairs, and feeling more and more strongly
the need of a legal status for trade unions to protect their threatened
interests, the workers and their advocates did not cease to demand
the establishment by law of the freedom of association, with the
right to strike as a corollary.
The movement in favour of a special law on trade unions began
side by side with the creation in fact of such unions, that is to say,
towards the end of the World War. It grew stronger by degrees
and found support in the Christian Church in China, in educational
organisations, and even among feminist associations. In 1922 the
first National Labour Congress, held in May in Canton, had prepared
a programme of demands for submission to the National Assembly,
which included the recognition of the principle of freedom of
association. On 4 September 1922 the workers' unions of Wuhan
(Wuchang, Hanyang and Hankow, all in the province of Hupeh)
addressed a petition to Parliament composed of nineteen demands,
including among them that of the right of association and strike.
In the spring of 1923 the great railway strike broke out on the
Peking-Hankow Railway, the first and most important strike in
support of the demand for freedom of association. It may therefore
be of interest to give a brief survey of the facts.
In February 1923 the railwaymen on this line, to the number
of 20,000, had decided to found a trade union for the railways from
Peking-Hankow to Chenchow in the province of Honan. At the
time Marshal Wu Pei-Fu had his headquarters in this province, after
his expedition against the south, and in the name of public order
he prohibited the railwaymen's meeting. The workers, after having
failed in their negotiations with the military authorities, had ignored
this order, and finally proclaimed the formation of the union.
Collisions took place between the workers and the police. On
4 February a general strike of the workers on this railway was
1
Issued on 10 March 1912.
CHINA
359
declared, renewed negotiations having failed. At Kiang-An, in the
province of Hupeh, and Chang Sin Tieng in the province Chihli,
over ioo workers were killed by the Government army.
In addition, all the unions on the line were dissolved. This led to
a rapid increase in sympathetic strikes and demonstrations. The
Peking School Federation asked the Government not only to punish
the murderers, but formally to establish the workers' freedom of
association, and to repeal the Police and Safety Regulations of the
year III already mentioned. At the same time, in consequence of
an interpellation in the Chamber of Representatives, Parliament
adopted a resolution dealing with the preparation by the Government
of a Bill for the statutory recognition of trade unions, which it was
asserted would be in conformity with the Constitution. This did
not prevent the Government from adopting in the meantime certain
ad hoc police measures on the ground " that although the people
no doubt have the right to associate and meet, if the exercise of this
right prejudices the safety of the Government and the community,
any association or meeting must be dissolved ". The inevitable
result of carrying these measures into effect was the dissolution of
the Peking-Hankow railwaymen's union that had just been founded,
and the complete defeat of the strikers. Nevertheless, the Presidential
Proclamation of 22 February 1923, which gave an explanation of the
Government's attitude in this affair, contained a promise that the
competent authorities would at once be instructed to prepare a Bill
on trade unions, which would then be submitted to Parliament. As
a matter of fact, this work was begun at the same time as the
preparation of a Bill on factories, which although it lacks legislative
sanctions, became the provisional factory regulations issued on 29
March of the same year.
This first Trade Union Bill, prepared under the pressure of
public opinion, which had been outraged by the results of the
Peking-Hankow railwaymen's strike, bore a certain stamp of
liberalism. According to this Bill : (1) duly constituted trade unions
were entitled to legal personality ; (2) their functions were : mutual
aid, placing their members in employment, improving conditions of
work, making proposals to the Government with respect to social
legislation, and answering Government enquiries on the same subject ;
(3) trade unions could have branches. At the same time, certain
restrictions were established : (1) the formation of a trade union must
be subject to the approval of the public authorities ; (2) the
36o
FREEDOM OF ASSOCIATION
resolutions adopted by unions and the election of their officials m u s t
be notified to the competent authorities, which had the power to
cancel any decision contrary to the laws and regulations in force ;
(3) any trade union set u p w i t h o u t previously obtaining t h e
necessary approval would be dissolved, and its founders would be
liable to a fine of 10-100 Chinese dollars. T h e authorities could also
order the dissolution of a union which engaged in anti-Government
action or disturbed public peace and the welfare of the community.
T h e original draft- of this Bill, in fifteen sections, prepared by
the Ministry of Agriculture and Commerce, had been submitted to
Parliament for consideration when the coup d'état of 13 J u n e 1923
intervened.
D u r i n g the Tsao K w u n Government (October 1923 to October
1924) the question was left practically untouched.
I n November 1924 the T u a n Chi-Jui Government succeeded
that of Tsao K w u n . T h e Parliament, which had for long been
suspected of being the tool of the latter, disappeared for the last
time. I n November 1924 the Nationalist Government at Canton
promulgated a first Act on the freedom of association \
T h i s example encouraged the workers and their advocates to
bring pressure to bear on the P e k i n g Government. T h e movement
accordingly gained fresh impetus towards the end of 1924 and
during the whole of 1925. I t was even thought that the Bill
m i g h t be promulgated soon enough for any unions lawfully
constituted under it to be able to send their delegates to the provisional
Senate which the T u a n Chi-Jui Government proposed to organise.
T h e N a n k i n g Road affair on 30 May 1925 2 at Shanghai produced
further arguments in favour of the freedom of association. A
declaration of the Chamber of Commerce of that town stated that
the incident was principally due to the absence of legislation on
trade unions ; failing such legislation, Chinese workers ought to
have been better protected, even in foreign factories, which should
be subject to the same legislation as Chinese factories. T h e
declaration added that, owing to this same lack, Chinese workers
had so far been unable to state their views at the sessions of the
1
See Chapter III, and Appendix I.
In which the police of the International Concession opened fire
on a group of demonstrators who were protesting against the death of
a Chinese worker at the hands of a Japanese foreman in a Japanese
factory (cf. Chapter II).
2
CHINA
30Í
International Labour Conference, since they had no lawful
organisation.
T h i s led the P e k i n g Government to re-examine the Bill, and in
the summer of 1925 the Minister of Agriculture and Commerce h a d
a new Bill drafted which gave rise to criticism among the workers.
T h u s , in a telegram dated 10 July 192.5, the National Federation
of Chinese Workers raised the following objections :
(1) Organisation of unions on a craft basis as proposed in the new
Bill, instead of on an industrial basis, was defective.
(2) The conditions of age (thirty years) and education (literacy)
imposed on promoters of a union were too rigorous.
(3) The provision of the Bill that the funds of the union must be
deposited in a State Bank was anti-democratic.
A n d there the Bill was left.
I n 1926 it was rumoured that the Central Government at P e k i n g
proposed to adopt as the basis of discussion, or even to copy, t h e
trade union legislation of the Nationalist Government of Canton.
T h i s roused the employers, particularly those of Shanghai, and the
General Chamber of Commerce of Shanghai and the Association of
Employers in Silk Filatures sent telegrams of protest to prevent this
Cantonese Act being taken into consideration, as being too advanced
in tendency 1. I n its reply to the employers, the P e k i n g Government,
while denying t h e earlier rumour, stated t h a t it was indispensable
to introduce certain more liberal provisions in the new Bill unless
it was to be deprived of all value.
It was in this spirit t h a t the third and last T r a d e Union Bill
came into being. I t s principal features were as follows :
(1) The organisation of trade unions on an industrial basis was
allowed.
(2) The powers of trade unions were increased.
(3) The number of promoters was reduced from fiftv to thirty, and
they were no longer made subject to conditions as to length of employment and education.
(4) Employers were not allowed to make non-unionism a condition
of engagement.
(5) Adult workers, actually employed in the trade, could be
members of a union.
(6) The internal work of the union was minutely regulated.
(7) Before holding a general meeting of the union, the competent
local administrative authorities must be notified.
(S) Decisions and elections contrary to the law could be cancelled
by order of the competent administrative authorities.
' Chan Pao (Shanghai commercial newspaper), 16 and 24 Feb. 1926.
3Ó2
FREEDOM OF ASSOCIATION
(9) Unions set up without obtaining the authorisation of the public
authorities could be dissolved by the latter.
(10) Any illegal action by a union could lead to its suspension or
even its dissolution.
(11) On dissolution, the assets and liabilities of the union were to
be divided among members.
(12) All possible provision was made for conciliation and arbitration
by a joint committee in cases of dispute.
(13) Provision was also made for the compulsory enforcement of
awards in cases where either party failed to abide by the decision of the
arbitrators.
(14) During conciliation and arbitration proceedings strikes and
lock-outs were prohibited.
T h i s , in outline, was the last T r a d e Union Bill. Just when it
was ready to be submitted to the Council of Ministers, to take the
form of Regulations and then to be promulgated, t h e T u a n Chi-Jui
Government fell. Since that time political and military events have
followed thick and fast, and the Peking Government, under the
dictatorship of Marshal Chang Tso-Lin, h a d no time to deal with
the matter, so that the Trade Union A c t so long expected from the
P e k i n g Government never saw the light.
UNDER
T H E NATIONALIST GOVERNMENT
I n accordance with his own theories, contained chiefly in his
" three principles ", Dr. Sun Yat Sen, founder of the K u o m i n t a n g
(Nationalist Party), and head of the National Government at Canton,
first repealed sections 164, 167 and 324 of the old Penal Code a n d
the Regulations of 2 March 1924 already mentioned, and then issued
in November 1924 the first Chinese Act on the freedom of association.
T h e ten g u i d i n g principles underlying this A c t were as follows :
(1) Recognition that workers' organisations are on an equal footing
with employers' organisations.
(2) Recognition of the right of trade unions to freedom of speech,
of the press, and of education.
(3) Recognition of the right of trade unions to enter into collective
agreements with employers' organisations.
(4) Recognition of the right of trade unions, in the event of a
dispute, t o ask the employers to set up a joint arbitration committee,
and their right to apply to the competent administrative authorities to
open an enquiry or arbitration proceedings.
(5) Recognition of the right of trade unions to strike.
(6) Recognition of the right of trade unions to take part in the
regulation of hours of work, conditions of work, and factory hygiene.
(7) In a labour dispute not involving public utility undertakings
(the Bill defines these as " all undertakings supplying articles of daily
necessity and transport undertakings ; electric light, gas, water, tramways, railways, navigation, etc. " ) , the administrative authorities were
to act only as investigators or arbitrators, and would have no power to
CHINA
363
enforce the observance of their decisions, the aim being to allow free
play for the initiative of the trade unions.
(8) Guarantees to trade unions for the security of their property,
which was to be treated as public property.
(9) Provision that the prohibition of meetings and of association
contained in the Penal Code and Police Regulations should not apply
to trade unions.
(10) Acceptance in principle of the organisation of trade unions by
industry, but in view of the fact that Chinese industry still largely takes
the form of handicrafts, acceptance also of organisation by craft.
Since at t h a t time, the Nationalist Government of Canton
controlled only the province of K w a n g t u n g , t h e scope of this Act
was of necessity limited ; b u t as the Nationalist Government
advanced northwards, with the success of its armed expedition against
the P e k i n g Government, the scope of t h e Act widened, and a large
number of new unions were formed u n d e r the Act in t h e conquered
provinces. After the unification of the country by t h e K u o m i n t a n g
in 1928, the N a n k i n g Government immediately set to work to study
the necessary changes in the 1924 T r a d e Union Act, experience
having shown that it suffered from certain defects which h a d to
be remedied. Moreover, the 1924 Act was only a first attempt.
T h e result was a new Bill on the freedom of association, a n d
provisional regulations on the organisation of trade unions, prepared
by the Ministry of I n d u s t r y , Commerce and Labour d u r i n g 1928.
Finally, in October 1929, after careful examination of the Y u a n
legislation, the N a n k i n g National Government promulgated the new
T r a d e Union Act, which is discussed in Chapter I I I V
T o sum up, it may be said that so far as legislation is concerned,
it was Dr. Sun Yat Sen who established freedom of association in
China, and that his successors are now engaged in adapting it to
the present conditions of the country.
1
See also Appendix II.
CHAPTER II
HISTORY OF THE TRADE UNION MOVEMENT
§ 1. — Before 1918
Before the end of the World War a trade union movement of
the modern type could hardly be said to exist in China. Among
the old organisations in which the workers took part, reference may be
made to : (i) the " Kongso " or trade guilds, composed of employers
and workers in one and the same small handicraft ; their aims were
exclusively corporative and did not include anything in the nature
of class war ; (2) the " Hwei Kwan " or provincial guilds, consisting
of persons coming from the same province and intended to protect
their common interests, which therefore included workers ; (3) the
" P a n " (groups), which were more or less entirely, labour in
character.
According to a study made by Professor Cheng Kishio 1, there
were three sorts of Pan : those for handicrafts, those for engineering,
and the regional Pan. The first consisted of artisans and their
workers and apprentices ; their object was to combine against the
capitalist employers for whom they worked.
The second, the
engineering Pan, consisted of workers in modern industries, and in
particular engineers, with a " Too Moo " (foreman) at the head ;
they usually had the same occupation or came from the same province.
The persons against which these organisations were directed were,
directly, the employer and, indirectly, capitalist employers in general.
The third form of " Pan ", the regional Pan, consisted of
labourers or coolies from the same district ; they were much the
same in character as the engineering Pan. None of these Pans ever
had a legal status. Their organisation was altogether rudimentary,
their aims were modest, and there was a great deal of trade jealousy
between them. In brief, they were of little importance.
1
Quoted in MA CHEU CHUN : The Labour Problem in
p. /S (Shanghai, 1925).
China,
365
At the end of t h e W o r l d W a r , owing to t h e rise in t h e cost
of living, t h e gradual dissemination of t h e new social ideas of t h e
West, and above all, the knowledge of world events in t h e field of
labour that they obtained t h r o u g h seamen, t h e Chinese workers
came to realise their position, and it was not long before they began
to organise.
§ 2. — From 1918 to June 1925
T h e year of the inception of t h e labour movement in China was
1918, during which the~e were twenty-five strikes 1. I n 1919, t h a n k s
to the broad-minded social policy of t h e Canton Government under
the direction of D r . S u n Y a t Sen, there were already twenty-six
trade unions in t h e south of China 2 .
I n 1920 t h e movement spread to Shanghai and H o n g k o n g .
Several unions were formed at Shanghai, among others t h e
electricians' union, the union of employees in dispensing chemists'
shops, etc., while at t h e same time engineers and seamen organised
a t H o n g k o n g . I n April of t h e same year t h e H o n g k o n g engineers
conducted a successful strike, and in F e b r u a r y 1921 seamen in t h a t
port organised another with signal success (30,000 strikers).
T h e movement spread after these victories. On 1 May 1922
t h e first National Congress was held a t Canton, a t which over 200
unions comprising 300,000 workers from different industrial centres
were represented. T h i s Congress adopted t h e following resolutions :
(a) To study the problem of the establishment of a National Labour
Federation.
(b) To set up a national union of rickshaw coolies.
(c) To limit the activity of trade unions to the economic field.
(d) To demand the eight-hour day.
(e) To request the trade unions to assist each other financially in
strikes.
(f) To draw up the programme for a new labour congress.
It was not possible to give practical effect to these
owing to t h e disturbed political situation of t h e country.
be observed, moreover, that this first Congress embraced
theory. I t s programme was essentially economic and
1
Eight
e
Professor T A CHEN : Analytical
Years in China.
J. B. TAYLER
China ", International
Study
and W. T. ZUXG :
of the Strikes
decisions
I t should
no social
practical :
of the Last-
" Labour and Industry
Labour Review, Vol. VIII, No. 1, July 1923.
in
îo6
FREEDOM OF ASSOCIATION
the improvement of conditions of employment and the securing of
an adequate living wage. From that date it may be said that trade
unionism took root in China.
At the end of the same year, the Trade Union Federation of
the province of Hupeh in the centre of China was founded, composed
of twenty-two unions with an aggregate membership of 40,000.
Thus the movement, far from concentrating in the maritime ports,
Canton, Shanghai and Hongkong, began to penetrate into the interior
of the country.
At the beginning of 1923 the railwaymen on the Peking-Hankow
line, to the number of 20,000, tried to organise, and after a strike
in February that led to bloodshed, they succeeded in founding the
General Railwaymen's Union for that line, with eleven local branches.
This movement had been supported by several sympathetic strikes,
in particular those of the railwaymen on the eleven combined
railway lines, which had a great influence on the extension of labour
organisation. Thus, in the provinces of Hunan and Szechwan,
provincial federations of trade unions were founded. At Hankow
the great union of the workers in the Han Ye Ping metal company
was founded, with 30,000 members 1.
The labour movement at Canton had slowed down under the
reactionary government of General Chen Kung Min in June 1922 ;
the latter had in fact betrayed Dr. Sun Yat Sen and compelled him
to leave Canton. In January 1923 the movement began to revive,
after the return of Dr. Sun Yat Sen to Canton.
In 1924 a new provincial trade union federation with very
radical views, the Conference of Workers' Delegates, was set up at
Canton side by side with the old provincial Trade Union Federation.
Each trade or industry was asked to elect a representative to this
Conference of Workers' Delegates with a view to organising a central
executive committee. Four groups of industrial workers were
represented at the constituent meeting of the Conference :
(1) transport workers ; (2) factory workers ; (3) craftsmen ;
(4) unskilled workers and casual labourers. The creation of this
Conference of Workers' Delegates meant a great step in advance for
the labour movement of Canton. At that date there were about a
hundred unions in that town and an equal number at Hongkong.
1
King Tsi (in Chinese) of the Economic Information Office of the
Chinese Government, No. 135, 24 Oct. 1925.
CHINA
367
During the following year the second National Labour Congress
met at Canton, 540,000 workers being represented. This second
Congress was definitely militant in character. It defined trade
unionism as being essentially a weapon in the class war, and in
addition adopted a resolution advocating collaboration between
workers and peasants.
§ 3. — From June 1925 to June 1926
During 1925 the trade union movement continued to make
progress at an accelerated rate. The cause of this is to be sought'
in the Nanking Road incident in Shanghai and the Shakee incident.
In both of these the police in foreign concessions had fired on
Chinese demonstrators, killing and wounding a large number of
workers. This led to several protest strikes, and from that time
onwards the labour movement became one with the patriotic
movement, and was thus considerably strengthened. This state of
affairs may be explained by the special fact that the origin of the
Nanking Road incident was the death of a Chinese worker at the
hands of a Japanese foreman in a Japanese factory, and by the more
general reason that the most important industrial undertakings in
China were in the hands of foreign capitalists. The immediate result
of the Nanking Road affair was the creation of the General Federation
of Shanghai Trade Unions, comprising 107 unions with a membership
of 217,804. This body directed over a hundred strikes, involving
150,000 workers, in consequence of the Nanking Road affair. The
Shakee affair in Canton also had important after-effects for the
labour movement, in the form of the great Hongkong strike, which
led 100,000 workers to stop work and return to Canton, whence
most of them had come. In that town they were the guests of the
Nationalist Government and took part in the boycott of enemy
products. The presence of this labour army in Canton strengthened
the organisation of the left trade unions, that is to say, the new
Conference of Workers' Delegates. The general result was the
extension of the labour movement to all industrial centres. The
following figures show the strength of the trade union movement in
various districts in China at that date 1 .
1
Ming Kuo Jee Pao, Canton, April 1926.
368
-
FREEDOM OF ASSOCIATION
Shanghai
Canton
Hongkong
Tientsin
Province of
Province of
Peking
.
. . .
Hunan
Shantung
220,000
200,000
100,000
80,000
40,000 .
20,000
10,000
F u r t h e r m o r e , in each province most of the unions were affiliated
to a general federation.
I n J a n u a r y 1926 the General Union of Peking was founded, and
on 7 F e b r u a r y the National Union of Railwaymen with headquarters
at Tientsin. I t may also be mentioned that by that date there were
already in existence great trade union federations, such as the
General Seamen's Union, and the National Union of Chinese
Workers, with headquarters at Canton. T h i s latter body w a s set up
in pursuance of the decision of the first National Labour Congress
already mentioned. According to the report of the Central Labour
Committee of the Nationalist P a r t y 011 17 A u g u s t 1926, trade
unionism was also beginning to spread in the provinces of Kiangsu,
Kiangsi, Anhwei, Szechwan, and Shansi.
T h e third National Labour Congress met at Canton on 1 May
1926 and was attended by 400 delegates representing 1,240,000
organised workers.
These delegates belonged to 400 unions in
nineteen provinces. T h e Congress adopted ten important resolutions
on the lOilowing questions :
(1)
(2)
(3)
(4)"
(5)
(ó)
(7)
(8)
(9)
(10)
The principles of the labour movement.
The reorganisation and working of the trade unions.
Immediate aims and the plan of action in the economic struggle.
Strikes.
Relations between workers and peasants.
The education of the workers.
The organisation of young workers and women workers.
Unemployment.
Workers' co-operative societies.
The principles of labour legislation.
§ 4. — From June 1926 to August 1927
On 9 J u n e 1926 the Nationalist army began its expedition against
the militarist Government of the N o r t h . At the beginning of the
military campaign the Nationalist Government, then at Canton, tried
to moderate labour agitation, among other things b y issuing
regulations to establish compulsory arbitration and prohibit strikes
and lock-outs during arbitration "proceedings. A t the same time the
CHINA
369
Canton Government entered into negotiations with H o n g k o n g with
a view to terminating the prolonged strike already mentioned, which
had begun in J u n e 1925. I n point'of fact, the breach with H o n g k o n g
had upset the economic situation of the Province, and t h u s hampered
the military campaign. T h e result was that most of the 100,000
strikers who h a d come from H o n g k o n g were sent back, and Canton
experienced a brief period of calm.
I n Shanghai, on the contrary, the labour movement was the
victim of persecution throughout 1926. During the domination of
the military authorities (Sun C h u n g F a n g ) the workers lost all
freedom of action. T h e General Federation of T r a d e Unions of
Shanghai, which had been dissolved for the first time in 1925, was
again dissolved at the end of 1926. Under the Sun C h u n g F a n g
regime the number of trade unionists in Shanghai barely reached
50,000 in September 192Ó 1.
I n another respect September 1926 was a great date for the
Chinese Revolution. T h e Nationalist A r m y occupied the city of
W u h a n 2.
Wherever the workers were liberated from the militarist yoke
they began to organise. At W u h a n , where before that date there
were only 15 unions with 18,000 members, the n u m b e r immediately
rose to 80 with 100,000 members 3 . I n the province of H u n a n at
the same date there were 533 unions with 320,000 members 4 .
T h e trade union movement of Shanghai, too, revived when in
March 1927 the fall of that town became certain. A t that date there
were about 108 unions with 287,042 members 5 . After the arrival
of the Nationalist A r m y 63 new unions were formed, with a total
membership of 60,000, including the General P r i n t e r s ' Union with
30,000 members. If the declarations of the workers themselves are
to be believed, at that date 821,000 unionists were at Shanghai.
I n brief, in all the districts conquered by the Nationalists the
labour movement developed rapidly, particularly at Canton, Shanghai
and W u h a n . But its character and aspects in these centres were
not the same. A detailed examination of these differences will yet
again bring out the complexity of the labour problem in China.
1
Report of the Conference on Christianising
Economic
Relations,
Shanghai, 1927.
1
This name combines those of the three following towns : Hankow, Wuchang, Hanyang.
3
China Year Book, 1928.
1
Ming Kito Jee Pao, 20 Jan. 1927.
5
Chinese Economic Bulletin, 2 April 1927.
Freedom of Association
24
37°
FREEDOM OF ASSOCIATION
Shanghai is essentially an industrial town. Over 200,000 workers
are employed in modern factories. It is therefore the Chinese town
that best lends itself to modern trade unionism. But Shanghai is
also the town where a number of secret societies (Pan) flourish, and
the Communists easily find followers there. T h e result is that
Sh'anghai had the largest number of unions and went through
the largest number of strikes. I t was at Shanghai, too, that the
persecution of trade unions by the public authorities was most
severe and the ascendance of Communism in the unions most
complete.
Canton, on the contrary, is a town of handicrafts. While less
than 10,000 workers are employed in the few public and private
factories, there are nearly 300,000 craftsmen. Moreover, Canton has
very firmly established craft traditions, which prevailed during the
centuries of predominance of the guild system. A t the same time,
the spirit of the Cantonese is both positive and bold. I t is therefore
easy to understand that modern trade unionism has met with much
difficulty in taking root in this town, in spite of encouragement of
t h e Nationalist Government and the activities of Communists. A s
early as 1925, as already mentioned, two organisations of definitely
opposed tendencies were created : one radical, represented by the
Conference of W o r k e r s ' Delegates, and the other moderate,
represented by the Provincial Federation of Trade Unions. After
the military success of the Nationalist Government the rivalry between
these two tendencies became more acute. On the one hand, the
extremist unions profited by the victory of the Revolution, for which
they took much of the credit, to impose their conditions of employment
and to carry on a pitiless campaign against the moderate unions.
On the other hand, the latter in t u r n , taking advantage of the
departure from Canton of the Left members of the Government and
the Communists — since the Nationalist Government was transferred
to W u h a n in 1926 — organised a counter-attack against the extremists.
T h e small traders and manufacturers, for their part, tried to form
" yellow " unions in self-defence. T h e situation was t h u s decidedly
confused. T h e r e were armed struggles between unionists ; 40 per
cent, of the workers were suffering from unemployment. T h i s violent
conflict was suspended only in April 1927, w h e n Canton, following
the example of N a n k i n g , joined battle with the Communists.
T h e labour movement in W u h a n , or rather the two provinces
of H u n a n and H u p e h , during the first nine m o n t h s of occupation
by the Nationalists was different in yet another way, for it was
CHINA
37 !
entirely under Communist domination. As a matter of fact, these
districts, where the population had been reduced to want by
prolonged civil war, and where there were neither as firmly
established traditions as in Canton, nor as m u c h experience of trade
unionism as among the workers of Shanghai, offered the most
favourable conditions for Communist propaganda. T h e increase in
the membership of the W u h a n trade unions from 50,000 to 120,000
in the brief period of a month may almost be described as paradoxical,
not to speak of the rise in the neighbouring province of H u n a n to
320,000, for previously the workers of that province were not even
as organised as those of the province of H u p e h . W h e n the moderate
members of the Nationalist Government, now transferred to N a n k i n g ,
left it, the W u h a n Government fell altogether into the hands of
the Communists and extremists. T h e labour movement displayed a
feverish activity. T h e number of unionists soon rose to 300,000.
Trade union organisation was in the control of the Provincial Labour
Union, a very advanced body. Three hundred strikes broke out
during the course of three months, and only one failed. W a g e rates
rose substantially ; certain workers, such as the dockers, obtained
a fivefold increase in wages. W u h a n became the seat of the National
Confederation of Chinese Labour, which declared itself against
compulsory arbitration, benevolent reforms, such as profit-sharing,
and the capitalist Powers' control over the International Labour
Office. It also expressed itself in favour of an agreement between
the two Internationals, with a view to establishing a united front
against the imperialists l . It was at W u h a n , on 20 May 1927, that
the first Pan-Pacific Labour Congress was solemnly held.
Eight
countries, Japan, the United States, F r a n c e , Great Britain, the
Netherlands East Indies, Korea, Russia, and China, sent delegates,
representing 14,500,000 workers. T h e resolutions adopted by the
Congress dealt with the following points :
(1) Assistance for the Chinese Revolution and opposition to all
intervention by the Powers in China.
(2) Prevention and elimination of future war in the Pacific.
(3) Support for the movement for emancipation in India, Korea,
Java, the Philippines and the Latin-American countries.
(4) The adoption of a common programme of action against
Fascism.
(5) The adoption of the following fundamental principles with
regard to conditions of work : the eight-hour day and a weekly rest of
forty-two consecutive hours ; the financing of social insurance to be
1
Ming Kuo Jee Pao, 16 March 1927.
372
FREEDOM OF ASSOCIATION
borne by employers and Governments ; the prohibition of night work
for women ; the age of admission to employment fixed at twelve years ;
equal wages for all workers whatever their country ; freedom of association, of assembly, and of the press, and the right to strike ; enquiries
into the conditions of the workers to be conducted by workers'
representatives.
(6) The establishment of a permanent secretariat to maintain
relations and exchange information between the countries concerned 1.
Lastly, one m o n t h later, the fourth Chinese National Labour
Congress was held at W u h a n . A number of resolutions concerning the
conditions of the workers were adopted. T h e Congress also
considered the questions of conditions of employment in handicrafts
and the system of apprenticeship. It marked the culminating point
of the labour movement in China, but this level was maintained only
u p to J u l y 1927, w h e n t h e left fraction of the W u h a n Nationalists
came into conflict in its t u r n with the Communists, and thereby
arrested the tendency towards the dictatorship of the proletariat.
T h u s , each in t u r n , Shanghai, Canton, and W u h a n , broke with
the Communists, with the result that the labour movement of the
China of to-day has changed its course. Owing to the breach
between Nationalists and Communists, the extremist unions in all
large towns disappeared for lack of leaders. T h e authorities set up
committees to unify the trade union movement, and under their
direction it continued to make progress. I t was t h e duty of these
committees to eliminate Communist elements and to restore normal
conditions in industry, while avoiding labour disputes whenever
possible.
T h e result was the establishment of trade union
organisation committees and arbitration committees in the large
towns. On all these bodies the workers were represented side byside with employers, under the direction of representatives of t h e
Nationalist P a r t y and the public authorities. T h i s was the situation
in the second half of 1927, except in the north of China, where all
freedom of action was still denied to the workers by the military
Government of P e k i n g .
§ 5. — From August 1927 to 1928
Since the breach with the Communists, the labour movement,
although it continued to make progress, changed in character :
(1) the unsatisfactory state of industry and t h e difficulties of
1
Shen Pao, Peking, May 1927.
CHINA
373
organisation compelled it, as already stated, to become more
moderate ; (2) once the old Communist or extremist leaders had
disappeared, there was a lack of efficient trade union organisers,
whether due to inexperience or to the fear of being compromised ;
(3) the organisation of the workers was thenceforward under the
control of the Government and the Nationalist Party. But the latter,
being still in the midst of the military campaign, had hardly time
to consider this question.
The unification of the labour movement was made very difficult
by the fact that in each large centre there were several rival trade
union federations of equal power. This problem of unification has
not yet been solved, and since the compulsory dissolution in 1927
of the Communist National Confederation of Labour at Wuhan,
China has had no national labour organisation, nor even any genuine
provincial federation. The situation in Canton in 1927 illustrates
this problem of the difficulty of trade union organisation. In that
town' there were no less than five great trade union federations,
which were on no consideration prepared to sacrifice their
independence to the cause of unity. There was first of all the
Provincial Canton Federation, which was the oldest of all. Before
the other federations were formed, it had succeeded in obtaining the
affiliation, of 138 unions of Canton, that is to say, the large majority
of the workers, quite apart from its members in other towns.and in
the province. Then there was the great Provincial Engineering
Union, which was as old. This union liad never wished to affiliate
to the Kwangtung Federation of Trade Unions, with which it claimed
to have nothing in common, as it recruited only workers in modern
industry and was aiming at the formation of a national industrial
union. These two old-established unions remained industrial in
character.
In 1924, Dr. Sun Yat Sen set up the Conference of
Workers' Delegates, yet another labour federation, which was to be
definitely revolutionary in character. This led to a fight for
predominance between the old federations, accused of being " yellow "
unions, and the new organisation, which tried to enlist the members
of the first or to set up new unions under its own control. From
1925 to 1927 the radical trade unionists had the ascendancy in
Kwangtung. The Kwangtung Trade Union Federation was defeated
and on the point of disappearing. Its situation was complicated by
the appearance of another labour federation — the fourth — the
Revolutionary Federation of the Workers of Kwangtung, which won
recruits among the many unions of small traders in Canton, which
FREEDOM OF ASSOCIATION
374
h a d previously remained within the guild system. I t was in fact
the spread of trade unionism among employees in retail trade that
had most disturbed the business world and had induced the employers'
guilds, then strongly organised, to engage in a fight to t h e death
with the radical trade unionists. T h i s will show how complicated
the organisation of the workers was in Canton. T h e traditions of
the past, the needs of the present, and the policy of the Government
were all involved and led to an almost inextricable situation. After
the breach with the Communists in April 1927, the moderate unionists
of Canton, that is to say, those belonging to the K w a n g t u n g T r a d e
Union Federation and the Engineering Union regained the upper
hand.
Nevertheless, although deprived of the support of
the
Communists, the militant unionists were not completely out of action,
for they still had the support of the left elements of the Nationalist
P a r t y and profited by any opportunity to restore their
fighting
strength. These left elements had not been compromised in t h e
fight against the Communists, and had retained some of their
authority in public affairs. Equilibrium was t h u s maintained and
t h e trade union movement pursued its course. I n the second half
of 1927 there were in Canton 212 registered unions with 365,527
members, and 75 unregistered unions with 191,130 members.
In
the other towns and districts of the province there were 372 unions
with 383,534 members. I n all, the number of unions in the province
of K w a n g t u n g was 659 with an aggregate membership of 640,211 1.
T h e following figures show the state of the labour movement
in K w a n g t u n g at that date.
DISTRIBUTION OF CANTON TRADE UNIONS BY MEMBERSHIP
Membership
U n d e r 500
500 to 1,000
1,000 to 2,000
2,O0O t o 4,000
4,000
5»°°o
6,000
7,000
10,000
30,000
40,000
Number of unions
S8
35
36
27
1
'
3
. . .
.Statistics of the Kwangtung Labour Department.
2
2
5
1
2
375
CHINA
DISTRIBUTION OF KWANGTÜNG UNIONS BY DATE OF FORMATION
Number of unions
Year
Canton
1920
1921
1922
1923
1924
1925
1926
1927
Total
3
36
36
5
8
33
68
47
!
236
Other districts
Other towns
'
4
3
22
26
14
19
52
36
But the Kwangtung labour movement suffered a severe setback
owing to the Communist insurrection in Canton on 10 November
1927. When order was restored, the authorities found it necessary
to dissolve all unions suspected of relations with the Communists.
Thus all the unions belonging to the Conference of Workers'
Delegates and the Revolutionary Federation of the Workers of
Kwangtung were suppressed, which meant the disappearance at one
stroke of 60-per cent, of the unions of Canton ; if the figures for
the whole province are taken, the proportion is 36 per cent. Other
unions dissolved voluntarily for fear of reprisals, so that by the
spring of 1928 there were only some 30 unions left with about
50,000 members.
At this point, Mr. Ma Cheu Chun, the Director of the
Department of Agriculture and Labour, devised a scheme for unifying
the labour movement on the basis of a classification of trades into
seventeen branches, for each of which a general union would be
formed. All the general unions were to be affiliated to a federation,
to be called " the Kwangtung Federation of Trade Unions. " The
committee for preparing this body has already been formed, and is
now in full activity under the chairmanship of Mr. Wang Woon
Ting. It consists of two advisory members, and delegates from
the Party and the Government of the province.
§ 6. — 1928
After the repression of the Communist insurrection of 10
November, the labour movement was strictly supervised throughout
37*
FREEDOM OF ASSOCIATION
China.
Committees of trade union organisation were set u p
everywhere, except in Canton, where their place was taken by t h e
committee for preparing the T r a d e Union Federation. T h e principal
task of these committees is to unify the labour movement and to
train the unions. T h e y consist on the one h a n d of workers and
on t h e other of representatives of the Nationalist Party and
Government. During 1928 the work of these committees did not
appear to lead to any tangible results.
T h e present situation of the trade union movement may be
summed up as follows :
In Canton, the movement is actively reorganising. It should be
observed that strikes are prohibited during this period.
In Wuhan, all trade unions have disappeared owing to the suppression of the Communist centre. In the province of Hunan the situation
is the same.
In Shanghai, in 1928, there were 384 unions with 394,145 members
(including 56,912 women and 10,120 children) 1.
In Nanking, there were 121 unions with 31,522 members (of whom
18,250 were employed in small industries) 2.
In Peiping (Peking), there were in the summer of 1928, at the date
of the fall of the Peking Government, some 20 unions, with a membership
of 30,00o3. These were dissolved, however, in September 192S. To-day
there are only a few unions. Taken as a whole, Peiping is still under the
guild system, although this has been adapted somewhat to modern
conditions. At Tientsin, too, trade unionism is still undeveloped.
I n brief, the characteristic features of the labour movement in
China to-day are as follows : (1) the labour movement is controlled
by the Government and the Nationalist Party ; (2) it is still scattered
and heterogeneous, by districts ; (3) it is still directly affected by
the political situation. Finally, the present labour movement follows
a policy of agreement with capital with a view to promoting national
prosperity.
According to an enquiry made by the Labour Department in the
Ministry of I n d u s t r y , Commerce and Labour in 1928, the number
of trade unions and their membership in the different regions of
China at that date were as follows :
1
The Weekly Revieio of Agriculture,
Industry
and
Commerce,
No. 28, 14 Aug. 1928, published by the Shanghai Office of Social Affairs.
2
Document received from the Nanking Committee for Trade Union
Reorganisation.
' Chinese Economic Bulletin, 1 Sept. 1928.
CHINA
Kiangsu
Anhwei
. . .
Sui Yuen
Kansu
Charhar
Shansi
Honan
Shantung . . .
Kwangtung
Kiangsi
Kwangsi
Fukien
Nanking
Shanghai
P'eiping
Tientsin
Canton
Total
377
.
12
13.746
26,361
1,792
1
.554
2,090
15,382
27,036
98
7
6
*9
. . .
27
77
. . . .
.
. .
Number of
unions
9
5
1
18
1
114
429
!9
77
80
. . .
. . . .
999
.
1,423,05s
3>479
23,763
207,492
13,158
21,580
89,539
1,870,030
CHAPTER III
TRADE UNION LEGISLATION
Before the unification of China, which dates back only to 1928,
there could be no question of a general regulation of trade union
law. It is true that the Nationalist Government of Canton had
promulgated in 1924 regulations on the organisation and working
of trade unions, but these were inevitably limited in scope and
effect.
It was not until 1929 that it was possible to establish trade
union legislation for the whole of China and for all classes
concerned. Two Acts promulgated in July 1929, one dealing with
chambers of commerce, the other with handicraft associations, were
the first, the former establishing the right of association of
employers, the latter that of craftsmen and small traders. Finally,
quite recently, the Act of 18 October 1929, which came into force
on 1 November 1929, similarly established appropriate regulations
for the workers' trade unions.
But the central Chinese Government has not been content with
the mere regulation of the right of association. A whole set of
legislative measures have been adopted to define the possibilities
of trade union action in various fields. Thus an Act of May 1928
established regulations for settling collective labour disputes in
co-operation with the unions. Similarly, the Factories Act contains
a special chapter on the right of the unions to participate through
works councils in the supervision of undertakings.
This simple enumeration shows that the National Chinese
Government is intent on finding a general solution to the trade union
problem. These regulations are too recent, however, to allow of à
general estimate of their effect. In this present report it will be
sufficient, therefore, to reproduce as appendixes the more important
texts : (1) the regulations concerning the formation of trade unions
379
CHINA
by the workers promulgated by the National Government of Canton
in November 1924 ; (2) the Trade Union Act promulgated by the
Central Chinese Government on 18 October 1929 ; (3) the Act on
the settlement of labour disputes promulgated by the Nanking
Government on 9 June 192S ; (4) the Factories Bill, Chapter X :
Factory Councils.
•
APPENDIX I
Regulations concerning the Formation of Trade Unions by the
Workers, Promulgated by the Government of
Canton in November 1924
i. All intellectual and manual workers of either sex who are
over sixteen years of age, and are engaged in the same occupation
or employed in the same undertaking, workers, salaried employees
and domestic servants employed by private individuals or public
bodies, teachers in schools, and Government oiiicials shall have the
right to found trade unions under these Regulations, provided that
the union consists of fifty or more members.
2. A trade union shall have legal personality. It shall not be
liable for the acts of its members in their relations with third parties.
3. Trade unions and employers' organisations shall be equal,
and may, if need be, organise joint committees with a view to
discovering suitable methods of raising the standard of living of
the workers, improving their conditions of work, and settling disputes
arising between tlje two parties.
4. Within the limits of activity assigned to them, trade unions
shall enjoy freedom of speech, of the press, and of education.
5. If, owing to its organisation, the activity of a union extends
beyond the limits of the existing administrative area, the union
shall apply to the higher administrative authority to state the official
body under "whose competence it falls.
6. The organisation of the union shall be based in principle on
the undertaking, unless special circumstances make it expedient to
base it on the occupation, and this is the wish of the majority of
the members.
Unions of the same nature may federate or amalgamate, and
trade union federations or simple unions may federate or amalgamate
with similar bodies in another province or in a foreign country.
7. In order to form a union, an application shall be submitted
to the competent local authority, signed by fifty members in the same
occupation or the same undertaking, and accompanied by two copies
of the rules of the union and a list of the names and civil status of
its managers. This application shall be made to the district
magistrate or the municipal office. Unregistered unions shall not
be entitled to the rights and protection granted under these
Regulations.
8. The rules of the union shall state the following particulars :
(1) The name and nature of the union.
(2) Its aims and functions.
(3) The area it covers and its headquarters.
(4) The names and functions of its managers and the rules
concerning their election and resignation.
(s) The organisation of meetings and the method of voting.
CHINA
(6)
(7)
l81
The amount of its expenditure and its financial resources.
The conditions of admission of members, the limitation of
their number, and their rights and obligations.
o. Every six months the union shall submit to the competent
local authority a report and statistical tables, stating the following
particulars :
(1) The names and civil status of the managers.
(2) The names of the members of the union, their number,
date of admission, place of work or state of unemployment,
change of employment, migration, death, or injuries due
to accidents.
(3) The financial situation of the union.
(4) The results of its various undertakings.
(5) Strikes or other disputes in which it is concerned, and
their causes and results.
10. The aim of a trade union shall be :
(1) To protect the interests of its members.
(2) To undertake the placing of its members in employment.
(3) To conclude collective agreements with employers.
(4) To organise for the benefit of members co-operative credit
societies, savings funds, and social insurance institutions.
(5) To organise recreation and social clubs.
(6) To organise for the benefit of members producers',
consumers', housing, etc., co-operative societies.
(7) With a view to increasing the skill and knowledge of
members, to organise technical, popular, and workers'
educational institutions, lectures, study circles, libraries,
and to publish periodical and other literature.
(8) To set up for the benefit of members hospitals and medical
consulting centres.
(9) To settle disputes between members.
(10) In disputes arising between the employer or employers on
the one hand and the union and its members on the other
to state its opinion ; to consult .the parties at issue ; to
indicate the line of conduct to be followed by members ;
to participate in the discussions of joint committees, and
in arbitration proceedings ; in agreement with the
employer or employers, to designate a third party as
arbitrator ; to apply for the intervention of the competent
administrative authorities with a view to making enquiries
or settling the dispute by arbitration.
_
(11) In questions of drafting, amending or repealing industrial
or labour legislation, to submit its opinion to the
administrative, judicial, and legislative authorities, and to
reply when consulted by these authorities.
(12) To obtain information on the conditions of work, placing
in employment, and unemployment of its members, and
on the general economic condition of the workers, with a
view to drawing up the reports and statistical tables
specified above.
(T3) To defend and develop the trade interests of members ;
to improve their conditions of work and increase their
welfare and intellectual faculties.
3 82
FREEDOM OF ASSOCIATION
i i . The managers shall be elected according to the rules of
the union. They shall represent the union in its relations with third
parties, and in this capacity shall be responsible to the members
of the union.
12. The members of the union shall be equal. The rate of
contribution to be levied shall be in proportion to the total income
of each, provided that the ordinary contribution for each member
shall not exceed 5 per cent, of his total income, except in the case
of special reserves and extraordinary levies or contributions of a
temporary, nature.
13. The members may, if need be, send delegates to audit ^he
accounts and examine the financial situation of the union.
14. The union may, if need be, decide by a majority of the
votes of its members to declare a strike, provided that this is not
to the detriment of public order and safety, or the life or property
of private individuals.
15. With respect to the regulation of hours of work and the
improvement of conditions of work, hygiene, and safety in factories,
the union may recommend its point of view to the employers or send
delegates to discuss .with the employers' representatives the measures
to be adopted.
16. When a dispute breaks out between one or more employers
and a union under its jurisdiction, the administrative authority may
order an enquiry into the cause of the dispute and, with the consent
of the parties, act as arbitrator. It may ex officio arbitrate
compulsorily in cases where the strikers belong to a public
establishment or public utility undertaking, and the strike spreads
and is prolonged, in spite of the attempts at conciliation of the said
authority, made after an equitable examination of the facts.
17. If a reserve fund intended for the protection of the interests
of members or for the social insurance institutions or savings funds
of the union is deposited in a bank which goes bankrupt, it shall
be Repayable as a privileged asset.
18. The following property of the union shall not be liable to
seizure :
(1) Its schools, libraries, clubs or circles, hospitals, medical
consulting rooms, and all the real and other property of
the producers', consumers', housing, etc., co-operative
societies of the union.
(2) Its reserve funds intended to protect the interests' of
members or for its social insurance institutions or savings
funds.
19. If the formalities prescribed in sections 8 and 9 of these
Regulations have not been observed or have been fulfilled incompletely
or not in accordance with the facts, the competent administrative
authorities may ask the union to fulfil or complete them,, or else
the union shall forfeit its protection under these Regulations.
20. Unions to which these Regulations apply shall not be
subject to the provisions of the Penal Code and the Police Regulations
restricting the freedom of assembly and of association.
21. These Regulations shall come into force as from the date
of publication.
APPENDIX II
Trade Union Act: Date of Promulgation 18 October 1929,
and of Coming into Operation 1 November 1929
CHAPTER I :
CONSTITUTION
I . Workers of either sex who have attained the age of sixteen
years and are actually engaged in the same craft or the same industry
may combine to form trade unions in conformity with this Act with
a view to developing their intellectual or vocational abilities provided
that the minimum number of members shall be one hundred in the
case of an industrial union and fifty in the case of a craft union.
Regulations shall be issued later to specify the various categories
of industrial unions and craft unions.
2. The following classes of workers may belong to a triade union
even though they do not belong to the same industry or the same
craft, provided that they are neither employers nor representatives
of employers, viz. (i) those who have been managers of the union,
and (2) those who have previously been employed in the industry
or craft to which the union in question applies.
3. Workers employed in administrative departments of the
State, viz. the communication services, the army, the manufacture
of arms and munitions, State industrial undertakings, public
education and other public utility undertakings, shall not form
trade unions within the meaning of this Act.
4. Unions shall be under the supervision of the authorities for
the district, municipality, and province of the area in which the
headquarters of each union are situated.
5. If it is proposed to found a union in accordance with section 1
of this Act, an application for registration signed by all the members
needed for the formation of the union shall be submitted to the
competent authority through from five to nine representatives elected
by the said members, together with the rules of the union and particulars of the civil condition of the representatives.
When the competent authority receives an application for
registration, it shall give its decision within a fortnight. If the
competent authority asks for amendments or a fuller inquiry, it
shall similarly decide within a fortnight of its receiving the new
application or the report consequent upon the amendments or the
fuller inquiry.
If the union is granted registration, it shall inform the competent
authority within three weeks of the date of its foundation, the
managers whom it has elected, and the civil condition and address
of each of the said managers. On receipt of these documents, the
competent authority shall publish them.
Unions which have not been registered or which have failed
384
FREEDOM OF ASSOCIATION
to submit the requisite documents after registration shall not be
entitled to the privileges and safeguards granted by this Act.
6. The workers engaged in the same industry or the same craft
in a particular locality shall not form more than one union.
7. For the foundation of a union a general meeting shall be
convened. The adoption of the rules of a union shall not be valid
unless three-quarters of the votes of the members founding the
union are cast in its favour.
8. The following particulars shall be stated in the rules of
the union :
(1) name ;
(2) aims ;
(3) area and headquarters ;
(4) qualification for membership and mutual rights and duties
of members ;
(5) conditions for the admission and resignation of members ;
(6) provisions respecting the managers of the union ;
(7) provisions respecting the meetings of the union ;
(8) provisions respecting the estimates and other accounts ;
(9) mutual benefit institutions ;
(10) provisions respecting the amendment of the rules.
9. Amendments of the rules shall not be valid unless approved
by the competent authority.
10. A trade union shall be a body corporate.
A trade union shall not be a commercial undertaking.
11. Every trade union shall have managers.
The managers shall be elected from among the members of the
union. Nevertheless they may be chosen from among non-members
if necessary, subject to the approval of the competent authority.
The managers shall represent the union in all its business
relations with third parties.
If tfiere are restrictions on the powers of the managers, these
shall not be valid with respect to bona fide third parties.
12. The union shall be liable for any injury caused to third
parties by its managers and other representatives in the exercise of
their functions, except in cases where the managers or representatives
call upon the members to engage in collective action for reasons
connected with conditions of employment and in cases where the
managers or representatives impose upon members restrictions of
their activities which entail injury upon employers with respect to
the employment of their staff.
The union shall not be liable for the personal actions of its
members or managers.
13. The following matters shall be decided by general meetings
or meetings of delegates :
(1) the amendment of the rules o'f the union ;
(2) the estimates ;
(3) reports on activities and the approval of the accounts of
receipts and expenditure ;
(4) the reform or maintenance of conditions of employment ;
(5) the formation, management and utilisation of the reserve
fund ;
(6) the establishment of mutual benefit institutions ;
(7) the organisation of federations of trade unions and the
CHINA
3»5
affiliation of the union to a federation or its withdrawal
therefrom ;
(8) the winding up, amalgamation or subdivision of the union.
14. A union may appoint auditors in accordance with its rules
or with a decision of a meeting. It shall be the duty of the
auditors to audit the accounts of the union and supervise its operations
apd the work of the various managers. The auditors shall be appointed
from among the members of the union.
CHAPTER II
15.
(1)
:
FUNCTIONS
The functions of a trade union shall be as follows :
the conclusion, amendment and cancellation of collective
agreements, which shall not be valid unless approved by
the competent authority ;
(2) the placing of members in employment and the establishment
of employment exchanges ;
{3) the establishment of savings banks, social insurance
institutions, hospitals, nursing homes and creches ;
(4) the organisation of productive, distributive, purchase,
credit and housing co-operative societies ;
(5) the organisation of institutions for vocational education and
other forms of education for workers ;
(6) the establishment of libraries and reading rooms ;
(7) the issue and publication of printed matter ;
(8) the establishment of social clubs and other organisations
for recreation ;
(9) the settlement of disputes between the union and its
members ;
(10) the settlement of disputes between workers and employers ;
(11) the making of recommendations or replies to be submitted
to the administrative, legislative and judicial authorities
concerning the drafting, amendment or repeal of labour
legislation ;
(12) the making of inquiries into the economic conditions under
which working class families live, and into the recruiting
and unemployment of workers, and the compilation of
statistics on labour questions ;
(13) any other work likely to improve the conditions of
employment and to promote the interests of the members.
If a trade union in the exercise of its functions has not yet
established the institutions for the benefit of the members in general
which are mentioned above or provided for such institutions in its
rules, and the competent authority considers their establishment
desirable, the said authority may send representatives to assist the
union in organising them.
16. The unions set up by the workers in the various industries
and undertakings specified in section 3 shall not have the right to
conclude collective agreements.
17. A trade union may levy contributions upon its members
provided that the entrance fee for each member shall not exceed
one dollar and that the regular contribution shall not exceed
2 per cent, of the member's income. Contributions for the special
Freedom of Association
386
FREEDOM OF ASSOCIATION
reserve fund, occasional collections and capital shares shall not be
levied without permission from the competent authority.
18. Every six months the union shall report to its members
on its financial situation. The members by the signature of one-tenth
of their number may appoint representatives to audit the finances
of the union.
CHAPTER III
:
SUPERVISION
19. A worker shall not belong to more than one trade union
for a given industry or craft.
20. A trade union shall not compel workers to join it or to
leave it.
A trade union shall not refuse admission to any person who
possesses the requisite qualifications according to the law or the rules
of the union, nor admit any person who does not possess the said
qualifications.
A trade union shall not hinder the employment of workers not
belonging to it.
21. A member of the union may resign from it at any time,
unless notice must be given under its rules. In any case the period
of notice shall not exceed one month.
22. A union shall not impose on its members any fine exceeding
three days' wages.
A union shall not expel a member without lawful cause, unless
expulsion is decided on by two-thirds of the total number of members.
23. In the event of a labour dispute, a strike shall not be
declared until conciliation and arbitration proceedings have been
taken, nor then unless it has been decided by a two-thirds majority
of the total number of members on a ballot.
In the event of a strike, the union shall not act to the detriment
of the public peace and order, nor endanger the life or property of
employers or other persons.
A union shall not declare a strike to enforce its claim to a wage
above the basic rate.
Unions organised by the workers mentioned in section 3 above
shall not declare strikes.
24. If any change is made in the rules or the managers or the
staff of the union, notice thereof shall be given immediately to the
competent authority and shall be published by the said authority a
fortnight later. Such changes shall not take effect with respect to
third parties until thus published.
25. After registration, the union shall submit to the competent
authority two copies of blank record books, one intended for recording
the names of members and the other for the accounts. New books
for the same purpose shall be subject to the same formality.
When these books for recording the names of members and for
accounts are full, one copy shall be kept at the headquarters of the
union and the other filed by the competent authority.
The list of members shall show the number of members and
the name of each member, the date of his admission, his address, his
place of employment and all particulars of his being placed in
employment, his unemployment, his emigration, any injuries or
accidents with which he meets, and his death.
CHINA
387
The entries in the account book shall be numbered, and the
documents or receipts relating to income and expenditure shall be
appended. If the competent authority considers it necessary, it may
request the union to appoint an accountant to examine the accounts.
26. In June and December of each year, and whenever required
to do so, every trade union shall submit to the competent authority
the following documents :
(1) a list of the names and civil condition of the managers ;
(2) the list of members ;
(3) the accounts ;
(4) a report on its activities and on any disputes that have
taken place ;
27. The members and managers of a trade union shall not :
(1) close shops or factories ;
(2) take possession of or destroy the goods and equipment of
shops or factories ;
(3) detain or strike workers or employers ;
(4) compel employers to employ workers recommended by
them ;
(5) bear arms at meetings or demonstrations ;
(6) blackmail workers ;
(7) order their members to neglect their work ;
(8) arbitrarily levy fees or other subscriptions.
28. The elections and decisions of a union may be cancelled by
the competent authority if they are contrary to the law or to the rules
of the union.
29. If the rules of a union are contrary to the law, the competent
authority may order their amendment.
30. In cases to which the two preceding sections apply, the
union may appeal against the decision of the competent authority
to the superior authority, provided that the appeal shall be made
within thirty days of the decision.
CHAPTER IV :
PROTECTION
31. Employers and their representatives shall not refuse workers
employment or treat them unfairly because they are members of a
trade union.
32. Employers and their representatives shall not make it a
condition of employment that their workers shall not belong to a
union or shall not become officers of a union.
33. In the event of a labour dispute employers and their
representatives shall not dismiss their workers until conciliation or
arbitration proceedings have been held.
34. Trade unions shall be exempt from income tax, licence
fees and registration duty.
35. Trade unions shall have a privileged claim on the assets
of any of their debtors who go into bankruptcy.
36. The following property of trade unions shall not be liable
to confiscation, viz. head offices, schools, libraries, creches, hospitals,
the real and personal property of productive, distributive, purchasing,
housing, etc., co-operative societies, the reserve fund of each union,
and the moneys of its insurance fund.
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FREEDOM OF ASSOCIATION
CHAPTER V :
WINDING U P
37. The competent authority may wind up a trade union in the
following cases :
(1) in case of failure to fulfil the conditions as to the foundation
of the union ;
(2) in case of a serious breach of the law ;
(3) in case of action to the detriment of the public peace or
order or of the interests of the community.
38. A .trade union may proclaim its voluntary winding up in
the following cases :
(1) when the general meeting decides to wind it up, provided
that the said decision is approved by the competent
authority ;
(2) when the conditions for winding up which are specified
in the rules are fulfilled ;
(3) in the event of the bankruptcy of the union ;
(4) when the union falls below the number of members required
for its foundation ;
(5) in the event of the amalgamation or subdivision of the
union.
39. Authorisation by half the members of the unions concerned
and the approval of the competent authority shall be necessary for
the amalgamation or subdivision of unions.
40. The amalgamated unions shall succeed to the rights and
duties of the original unions.
If a union is subdivided, the new unions formed by the
subdivision shall succeed to the rights and duties of the original
union. The decision respecting the allocation of the rights and duties
among the new unions shall be taken at the same time as that
respecting subdivision, subject to the approval of the competent
authority.
41. The creditors shall be given notice of the amalgamation or
subdivision of the union, and may lodge their claims within one
month. Notice shall be given individually to any creditors who are
already known.
If any creditors lodge claims within the time limit specified
above, the union shall not amalgamate or subdivide until it has paid
its creditors or given them adequate security.
Any amalgamation or subdivision made without observance of
the formalities prescribed above shall not be valid with respect to
the creditors concerned.
42. Except in cases where winding up has been ordered by a
public authority, a trade union which is to be wound up shall notify
the competent authority within a fortnight of the reasons for winding
up and the date thereof.
43. Except in case of amalgamation, subdivision or bankruptcy,
the winding up of a union shall be accompanied by a valuation of its
assets.
The said valuation shall be made in accordance with the
provisions of the Civil Code concerning bodies corporate.
44. If a trade union is wound up, its debts shall be paid. The
remainder of its assets shall be disposed of in accordance with its rules
or the decision of its general meeting. In default of provision in
CHINA
389
the rules or by the general meeting, the remainder of the assets shall
accrue to the federation to which the union was affiliated. If the
union did not belong to any federation, the remainder of its assets
shall accrue to the municipality where its headquarters are situated.
CHAPTER VI :
FEDERATIONS
45. Trade unions may combine to form federations consisting
of unions in the same industry or the same craft for the purpose of
developing the intellectual and vocational abilities of their members,
promoting production and organising institutions for their joint
benefit, provided that they apply to the competent authority for
permission to do so and their application is approved.
If it is proposed to form a federation of trade unions all the
unions shall be convened to a general meeting for the foundation of
the trade union federation, in order to adopt the rules, for which the
approval of the competent authority shall be necessary.
In addition to complying with the provisions of the two preceding
paragraphs, federations of trade unions shall comply with the
provisions of this Act concerning trade unions.
46. A trade union shall not be affiliated to a federation of trade
unions in any foreign country without permission from the
Government.
CHAPTER VII
: PENALTIES
47. If any members or managers of a trade union are guilty
of any of the actions mentioned in section 27 above, they shall be
liable to a fine not exceeding two hundred ' dollars provided that if
the offence in question is punishable under criminal law, they shall
be punished in accordance with such law.
48. If an employer or his representative contravenes the
provisions of sections 31 or 32 above, he shall be liable to a fine not
exceeding three hundred dollars.
49. If an employer or his representative contravenes the
provisions of section 33 respecting the dismissal of workers, he shall
be liable to a fine of not less than ten nor more than one hundred
dollars for each worker dismissed.
50. If the managers of a trade union are guilty of any of the
following offences, they shall be liable to a fine not exceeding
one hundred dollars :
(1) failure to make the requisite declaration under sections 24,
26, 42 or 51, or false declarations thereunder ;
(2) contravention of the provisions of section 25 or of the order
mentioned in section 29 ;
(3) taking measures for the amalgamation or subdivision of
unions contrary to the first and second paragraphs of
section 41.
CHAPTER
VIII :
SUPPLEMENTARY PROVISIONS
51. The trade unions in existence before the promulgation of
this Act shall register afresh in accordance with section ,5 above
within two months of the coming into operation of the Act.
390
FREEDOM OF ASSOCIATION
52. If there are two or more unions for the same industry
or craft in a given locality at the date of the coming into operation
of this Act, such unions shall amalgamate within two months of
the coming into operation of the Act.
53. Regulations shall be issued to provide for the coming into
operation of this Act.
APPENDIX III
Act concerning the Settlement of Labour Disputes, Promulgated
by the Government of Nanking on 9 June 1928
CHAPTER I : GENERAL PROVISIONS
I . This Act shall apply to labour disputes between employers
and workers' organisations or groups consisting of more than thirty
workers, arising out of the carrying out or alteration of contracts of
employment.
2. For the purposes of this Act the expression " administrative
authority ", unless otherwise provided, shall mean the authority of
the special municipality in the case of a special municipality, the
district authority in the case of a district and the ordinary municipal
authority in the case of an ordinary municipality.
Special municipalities shall mean municipal areas directly
subject to the Central Government ; ordinary municipalities shall
mean those which are subject to the provincial governments.
3. In case of a labour dispute the administrative authority
. either at the request of one or both of the parties or ex officio shall
convene the conciliation board with a view to settling the dispute.
The decisions of the conciliation board shall not be binding unless
the parties accept them ; in that case the decisions of the conciliation
board shall have the force of law between the parties. The latter
shall not attempt to alter them before the expiration of their legal
time limit.
4. It shall be compulsory to refer a dispute to an arbitration
board for arbitration if the dispute arose in any of the following
undertakings and the attempt at conciliation was unsuccessful :
(1) undertakings manufacturing munitions and armaments,
directly under the control of the military authorities ;
(2) public utility undertakings for the supply of water,
electricity and gas ;
(3) post, telegraph, telephone, railway, tramway, shipping and
motor transport public utility undertakings.
5. Labour disputes other than those mentioned in the preceding
section shall be submitted to arbitration unless both parties to the
dispute so request ; nevertheless, arbitration may be ordered ex
officio by the administrative authorities if they consider it necessary,
in cases where the dispute is sufficiently serious and has lasted more
than a month.
6. Except at the formal request of both parties, disputes shall
not be submitted to arbitration before an attempt at conciliation has
been made.
7. The awards of the arbitration board shall be binding and
have the force of law between the parties. The parties shall not
attempt to alter them before the expiration of their legal time limit.
392
FREEDOM OF ASSOCIATION
CHAPTER
Division
II
I : Conciliation
Authority
8. T h e conciliation board shall be responsible for the
conciliation of labour disputes.
o. T h e conciliation board shall be composed of five to seven
members as follows :
( i ) one or three representatives of the administrative authority ;
(2) two representatives appointed by each p a r t y .
T h e representatives mentioned under No. (1) shall not be chosen
exclusively from among the officials of the said administrative
authority.
10. W h e n a dispute is submitted for conciliation in accordance
with the first paragraph of section 3, the parties shall appoint their
representatives and communicate the names and addresses of such
representatives to the administrative authority within three days from
the receipt of the official notification.
If necessary the administrative authority may prolong the above
time limit or appoint the representatives ex officio instead of the
parties if it has not received the names and addresses of the
representatives within the prescribed time limit.
11. T h e board shall be convened as soon as the members of
the conciliation board have been appointed. T h e chairman shall be
appointed from among the representatives of the administrative
authority. I n the case mentioned in the third p a r a g r a p h of section 13
the representative appointed by the Ministry of Commerce and
I n d u s t r y shall be chairman.
If the members of the conciliation board fail to attend after
having been convened, thus m a k i n g conciliation impossible, the
attempt at conciliation shall be deemed to have been made
unsuccessfully.
12. T h e chairman of the conciliation board m a y request the
lower authorities to place the necessary staff at his disposal for the
clerical work of the board.
13. If two administrative authorities in the same province are
competent with respect to the same labour dispute, the administrative
authority mentioned under N o . (1) of the first paragraph of section 9,
and also, if necessary, the representative or representatives mentioned
u n d e r the same number, shall be designated by the provincial
government.
If the dispute extends beyond the boundaries of a single province,
the Ministry of I n d u s t r y and Commerce shall designate the
administrative authority mentioned under N o . (1) of the first
paragraph of section 9.
In the same case, if necessary the Ministry of I n d u s t r y and
Commerce may appoint the representative or representatives
mentioned under N o . (1) of the first paragraph of section 9.
Division
II : Arbitration
Authority
14. T h e arbitration board shall be responsible for arbitration in
labour disputes.
15. T h e arbitration board shall be composed of five members as
follows :
CHINA
393
(i)
a representative appointed by the provincial government or
the authority of the special municipality ;
(2) a representative appointed by the provincial committee or
the committee of the special municipality of the party ;
(3) the chairman of the local law-court or his representative ;
(4) a workers' representative and an employers' representative
who are not directly concerned in the dispute.
16. The provincial governments or the authorities of the special
municipalities, within their respective areas, shall require the
workers' and employers' organisations in the month of June in each
year to draw up a list of fifteen to thirty representatives for the
approval of the said authorities. The administrative authorities shall
appoint the representatives mentioned under No. (4) of the preceding
section from these lists. The lists on being approved by the provincial
governments or the authorities of the special municipalities shall be
forwarded by the said authorities to the Ministry of Industry and
Commerce for the purpose of registration.
17. The members of the conciliation board shall not be members
of the arbitration board in connection with the same dispute.
18. The arbitration board shall be convened in the areas
concerned by the provincial government, in which case the
representative of that government shall be the chairman of the board,
or by the authority of the special municipality, in which case the
representative of such authority shall be the chairman of the board.
If the arbitration board is constituted in accordance with the
second paragraph of section 20, the representative of the Ministry of
Industry and Commerce shall take the chair.
19. The chairman of the arbitration board may request the
lower authorities and the local law-court to place the necessary staff
at his disposal for the clerical work of the board.
20. If the dispute extends beyond the boundaries of a single
province, the Ministry of Industry and Commerce shall designate the
provincial government or authority of the special municipality
mentioned under No. (1) of section 15.
In the same case the representative mentioned under No. (1) of
section 15 may be appointed by the same Ministry if necessary. At
the same time the representative mentioned under No. (2) of section 15
may be appointed by the central organisation of the Party 1 and the
representatives mentioned under No. (4) of section 15 may be
appointed by the Ministry of Industry and Commerce from the lists
of members of arbitration boards for the provinces or special
municipalities concerned in the disputes.
CHAPTRR III
:
PROCEDURE FOR THE SETTLEMENT
OF LABOUR DISPUTES
Division I : Conciliation Procedure
21. Parties desirous of having recourse to conciliation shall apply
in writing to the administrative authority for this purpose.
22. The application for conciliation shall contain the following
information :
1
i.e. the Kuomintang Party.
394
FREEDOM OF ASSOCIATION
(i) . the name, occupation, ordinary or business address of the
parties, and the name and address of the head office in
the case of associations ;
(2) the number of workers involved in the dispute ;
(3) the essential points of the dispute.
23. If conciliation is ordered ex officio by the administrative
authority, such authority shall inform the parties of the grounds
thereof in writing.
24. The conciliation board shall begin to investigate the
following points not more than two days after being convened :
(1) the subject of the dispute ;
(2) the written statements submitted by the parties and other
documents connected with the dispute ;
{3) the present position of the parties to the dispute ;
(4) all other facts needing examination.
The duration of such investigations shall not exceed seven days,
except on special grounds.
25. The conciliation board may invite the witnesses or other
persons concerned in the dispute to furnish information in writing
or orally.
26. The conciliation board may undertake an inquiry in the
factories or shops involved in the dispute.
27. The conciliation board shall not divulge any secrets which
it may learn during the inquiry.
28. On the conclusion of the investigations and inquiries, the
conciliation board shall issue its decision within two days, except
in special circumstances or where the parties are of opinion that the
time limit should be extended.
29. The decisions of the conciliation board shall be adopted by
a majority vote ; they shall be communicated in writing to the
parties and to the competent administrative authority within two
days for the purpose of registration.
Division II : Arbitration Procedure
30. Parties desirous of submitting their dispute to arbitration
shall apply in writing to the administrative authority. If the said
authority is the authority of the special municipality, it shall at once
convene the arbitration board on receipt of the request for arbitration ;
if it is a district or ordinary municipal authority, it shall forward
the request for arbitration together with the relevant documents to
the provincial government.
On receipt of the request and the above-mentioned documents
the provincial government shall convene the arbitration board at
once, either at the provincial capital or at the place where the
dispute is in progress.
31. If the request for arbitration is made after the failure of
the attempt at conciliation, it shall contain the following information :
(1) the name, occupation and ordinary or business address of
the parties, and the name and address of the head office
in the case of associations ;
(2) the decision of the conciliation board and the points on
which the parties are not agreed ;
( 3 ) the grounds on which the conciliation decision was rejected ;
395
CHINA
(4)
the alterations in the conciliation decision desired by the
parties.
32. If the request for arbitration is made in respect of a dispute
which has not been submitted for conciliation, it shall contain the
information mentioned in section 22.
33. The provisions laid down in sections 23-29 shall apply to
arbitration proceedings.
34. The parties may conclude a compromise at any time during
the arbitration proceedings, subject to the approval of the arbitration
board.
CHAPTER IV :
RESTRICTIONS ON THE ACTIONS OF T H E PARTIES
TO T H E DISPUTE
35. Employers and workers in the undertakings mentioned in
section 4 of this Act shall not engage in a lock-out or strike on
account of a labour dispute.
Employers and workers in other industrial and commercial
undertakings shall not engage in a lock-out or strike during
conciliation or arbitration proceedings.
Employers in any industry or trade whatever shall not dismiss
their workers during conciliation or arbitration proceedings.
36. Workers and workers' organisations shall not commit any
of the following actions :
( 1 ) to close shops or factories ;
(2) to remove tools or foods or damage the premises of shops
or factories ;
(3) to compel other workers to strike.
37. The question of the payment of wages during a strike
shall also be decided by the conciliation or arbitration board.
CHAPTER V :
PENALTIES
3S. If the parties are guilty of a contravention of No. (2) of
section 3 or No. (2) of section 7 of this Act by failure to comply
with conciliation decisions having the force of law between the
parties or arbitration awards, they shall be liable to a fine not
exceeding two hundred dollars or imprisonment for not more than
forty days.
The above provisions shall not preclude the right of the parties
concerned to request the enforcement of the awards by judicial
proceedings.
39. If the parties are guilty of a contravention of the provisions
of sections 35 and 36, the administrative authorities or the conciliation
or arbitration boards may take the necessary measures to put an end
to such actions.
In case of failure to comply with these measures, the penalties
laid down in the preceding section shall be imposed.
Offences against the penal laws shall be liable to punishment
under those laws.
40. The following offences shall be punishable by a fine not
exceeding one hundred dollars :
(1) contravention of section 25 when the witnesses or other
persons without sufficient reason fail to comply with the
39<>
FREEDOM OF
ASSOCIATION
summons of the arbitration or conciliation board or fail to
supply the information requested ;
(2) contravention of section 27 ; if such contravention is a penal
offence, the penal laws shall apply.
41. The following offences shall be punishable by a fine not
exceeding one hundred dollars, without prejudice in case of perjury
to the provisions laid down in the penal laws :
(1) false statements made under section 25 ;
(2) refusal without sufficient reason to reply, or untruthful
replies, in the inquiry or investigation mentioned in
section 26.
42. The administrative authority or the conciliation or
arbitration board may refer to the competent court any contraventions
subject to the penalties laid down in this chapter, giving its reasons
for such a step. The said court shall give sentence within twenty
days from receipt of the case, unless the circumstances are exceptional.
CHAPTER VI :
SUPPLEMENTARY
PROVISIONS
43. The first lists of members of arbitration boards mentioned
in section 16 shall be prepared by the different administrative
authorities two months from the date of the coming into operation
of this Act in accordance with the procedure laid down.
44. This Act shall repeal all previous legislation, central or
local, respecting the settlement of labour disputes.
45. If necessary the provincial governments and the authorities
of the special municipalities may submit regulations for the
administration of this Act for the approval of the Central Government.
46. This Act shall apply to the special districts, and also to
Mongolia, Tibet and Koukounor.
The regulations for the administration of this Act fn the
above-mentioned areas may be drawn up by the supreme
administrative authorities of those areas in accordance with the
procedure laid down in the preceding section.
47. This Act shall come into operation on the date of its
promulgation.
APPENDIX
IV
Factories Bill
CHAPTER
X
:
FACTORY
COUNCILS
56. Any factory which comes within the provisions of this Act,
may organise a F a c t o r y Council consisting of equal n u m b e r s of
representatives of the employers and the workers.
57. T h e employers' representatives on the Factory Council
shall be selected by the employers from those who are familiar with
the. conditions of the factory and the conditions of the workers ;
the workers' representatives shall be elected b y the employees from
among their fellow-workers in the same factory. T h e election of
the workers' representatives m a y be conducted by the labour union,
if one exists, in the factory.
T h e election of the workers' representatives specified in the
above paragraph shall be done by ballot signed and cast by the
voters under the supervision of the representatives of the Proper
Authorities.
_.S8. I n electing the workers' representatives on the F a c t o r y
Council, each workshop of a factory shall constitute a unit.
The •
election shall be done according to the following, schedule :
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
"
"
"
"
"
"
"
"
Workshop " with
15 workers may elect 1 representative.
Workshop " with
15-""o workers may elect 2 representatives.
Workshop " with
30-50 workers may elect 3 representatives.
Workshop " with 50-100 workers may elect 5 representatives.
Workshop " with 100-200 workers may elect 7 representatives.
Workshop " with 200-500 workers may elect 9 representatives.
Workshop " with 500-1,000 workers may elect 11 representatives.
Workshop " with more than 1,000 workers, each (additional)
1,000 workers may elect 2 representatives.
(9) " Workshop " with more than 5,000 workers, each (additional)
1,000 workers may elect 1 representative.
(10) " Workshop " with less than 15 workers may elect its representative jointly with other adjoining workshops.
59. T h e representatives of the employers and the workers on
the Factory Council shall be three t o nine in number for either side.
Should the election result in more t h a n nine representatives on the
workers' side, then a deciding vote shall be taken among the primary
qualifiers.
60. T h e duties of the representatives on the Factory Council
shall be as follows :
(1) To fix the standard of production.
39^
FREEDOM OF
(2)
(3)
ASSOCIATION
To settle the disputes between the workers of the factory.
To settle the disputes between the employers and the
workers.
(4) To submit proposals for the improvement of factory
conditions.
(5) To initiate, within possible means, enterprises for the
welfare of the workers.
Should the employers or the workers disagree on the decisions
of the Council, a declaration desiring another solution shall be made
by the dissenting party within seventy-two hours.
61. When a dispute arises in a workshop which is within the
competence of duties (2) and (3) of section 60, the representatives
of the workshop in question shall first seek a solution on the
spot, having due regard to the nature of the dispute. Should
the representatives fail to effect a solution, the dispute shall then
be submitted to the Factory Council. Should the Council fail to
effect a solution, then the dispute shall be referred to the labour
union and the employers for a solution.
62. The Factory Council shall have the following officers :
One chairman, one vice-chairman, and two secretaries ; all of whom
shall be elected by ballot among the Council members. In case of
necessity, the Council may elect other officers.
63. The Factory Council shall have one regular meeting each
month to be called by the Chairman. For urgent business or by
request of two members of the Council in writing, special meetings
may be called.
. 64 Should a representative of the workers on the Council violate
the Factory Rules, he shall not be punished without the investigation
and decision of the Council ; during which investigation and
decision, the representative concerned shall not be present.
BIBLIOGRAPHY
In Chinese
MA CHEU CHUN.
The Labour
The Labour Problem in China.
Year Book,
Shanghai, 1925.
First edition, 1929. Published by the
P E I P I N G DEPARTMENT O F SOCIAL RESEARCH.
Dailies : Ming Kuo Jee Pao, Canton ; Shan Pao, Shanghai ;
Pao, Peking.
King
Tsi.
Periodical published by the ECONOMIC
Shen
INFORMATION
O F F I C E O F T H E C H I N E S E GOVERNMENT, Shanghai.
Publications of
the
O F F I C E O F SOCIAL A F F A I R S
of
the
special
municipality of »Shanghai.
Publications of the MINISTRY OF INDUSTRY, COMMERCE AND LABOUR,
Nanking.
In English
ANDERSON, Adelaide M. Humanity
1928.
and Labour in China.
Dr. T A CHEN, f The Labour Movement in China. "
Labour Review, March 1927.
China Weekly Review,
London,
International.
Shanghai.
China Year Book, 1Ç2S, Tientsin.
Chinese Economic
Bulletin.
Chinese Government, Shanghai.
ECONOMIC INFORMATION O F F I C E of the
JAPAN
INTRODUCTION
It is a matter of common knowledge that Japan has made great
strides within a short time. In recent years, specially after 1919,
that is, since the creation of the International Labour Organisation,
the progress made by Japan in the fields of social legislation, trade
unionism and administration of labour has been phenomenal. Due
to the very rapidity of her advancement, which seems even to have
been accelerated of late, no report describing her social conditions
can claim to be entirely complete or up-to-date, and it happens that
the present moment is the least propitious for dealing with the
question of the freedom of association of workers in Japan.
When the Office commenced the present enquiry some years ago,
there had been in force in Japan for more than twenty years a police
law 1 containing certain provisions which aroused bitter complaints
from the trade unionists. There were also certain other laws which
received unfavourable criticism from the people. Accordingly our
report drafted in the early stage of the enquiry dealt at some length
with these laws. However, great changes have taken place in the
meantime. Especially since 1 July 1926 the above-mentioned police
law has been amended and the provisions which had formed the
object of complaints repealed, while, on the other hand, a law for the
conciliation cf labour disputes has been enacted, and several
momentous measures have been taken to ameliorate the situation.
In face of such changes the former draft report has had to be modified
considerably. In the course of the enquiry similarly, a Trade Union
Bill was drafted by the Government, and presented twice to
1
Cf. pp. 406-407 and 435-437 of this report.
Freedom of Association
26
402
FREEDOM OF ASSOCIATION
Parliament at its 1925-1926 and 1926-1927 sessions but the discussion
on the Bill was not finished at either of the sessions of the Diet.
The matter has been referred to a special Commission by the
Hamaguchi Cabinet formed during 1929 and it is expected that the
Government will submit a new Trade Union Bill to the Diet at an
early date. It is obvious that upon the enactment of a trade union
law, the legal situation of workers' organisations will change and a
new development will then result. Thus we have to point out that
the subject matter of our enquiry is at this moment passing through
an important period of transition.
The acknowledgments of the International Labour Office are
due to the Kyocho Kai and the Industrial and Labour Research
Institute of Tokyo, to the Ohara Institute of Social Research of
Osaka, to Professor Gentaro Suyehiro of the Imperial University
of Tokyo, and to the Delegation of the Government of Japan to
the Governing Body of the International Labour Office for valuable
materials and useful suggestions given us in the course of the
enquiry.
CHAPTER I
EVOLUTION AND PRESENT POSITION OF EMPLOYERS'
AND EMPLOYEES' ASSOCIATIONS
§ 1. — Development of Legislative Regulation of Associations
DURING THE FEUDAL E R A
Prior to the Restoration of Meiji of 1868 capitalistic economy
in the modern sense had not yet developed in Japan. The basis
of economy was agriculture rather than commerce and industry,
which were restricted by feudalistic hindrances and could not develop
fieely. Consequently neither the capitalist nor the workers' class,
in the sense in which these terms are used to-day, existed as yet.
Nevertheless, in cases of oppression by the feudal landlords,
examples are not lacking of riots of organised peasants, but these
uprisings were sporadic and short-lived. The punishment inflicted
upon the rioters in those days was often cruel. Merchants and
craftsmen on the other hand formed more permanent organisations,
which may be called " guilds ", among persons of the same
trade, known generally by such Japanese words as Toiya Kumiai
(wholesale dealers' union), Nakama, etc. There are numerous
examples of these organisations or guilds which, under the patronage
and supervision of the feudal lords, monopolised the trading of
special articles of commerce, manufacture of certain specified
commodities, etc. In some cases the evils of the monopoly
exercised by the guilds became so flagrant that it had to be prohibited
by law. The ban on the monopoly of trade being lifted towards the
close of the feudal regime, the new era of Meiji began.
UNDER THE IMPERIAL REGIME SINCE
1868
The Government of Meiji completely destroyed the feudalistic
organisation, both economic and governmental, and endeavoured to
404
FREEDOM OF ASSOCIATION
replace it by a new political and economic organisation modelled
after Europe and America.
In consequence, the guilds which had flourished hitherto lost
their former prestige, but the Government allowed their continued
existence in society. By the Cabinet Notification (Dajokan Fukoku)
No. 276 of the first year of Meiji (1S68) the guild system was
explicitly allowed to continue, being warned only to refrain from
profiteering. However, with the gradual development of the economic system upon liberal principles, and the cessation of former
feudalistic patronage, the continuance of the old system of guilds
became increasingly difficult. Legislation was likewise changing,
assuming more and more a tendency towards laissez-faire. Already
the Cabinet Notification (No. 240) of 1872 stipulated that the rents
of land and of shops, and the wages of employees, craftsmen, and
hired workers, etc., should in all cases be " agreed upon by mutual
negotiation ". In other words, the parties were henceforth free
agents and the Government was not to intervene in these matters.
The same legislation provided that the workers always employed
at a fixed place should make no objection or complaint if the
employer wished to engage other workers. Particularly remarkable
in this connection is the fact that the feudal laws which forbade
the peasants' factions (Toto) were taken over and strictly enforced
(No. 2 of Sadamé 3, Oboyé 3 of March 1868). Inspired by the same
spirit the Revised Statutes (Kaitei Ritsurei) of 1873 laid down that
the crime of sedition (Kyoto Shushu) should be strictly penalised
(cf. section 151 et seq.).
In the Regulations of Assemblies (Shûkai Jôrei) of 1880, provisions were made for the control of the assemblies of political organisations, and in the criminal law of the same year it was already provided that in case the employees conspired against or threatened
the employer in order to obtain an increase of wages, or in case the
employer committed any similar act in order to reduce wages, the
offender in either instance should be imprisoned for more than 1
month but less than 6 months with hard labour, besides being fined
more than 3 yen but less than 30 yen (cf. sections 270-271).
This regulation in the criminal law remained in force until 1908,
when the revised criminal law came into effect, by which a collective
action taken in view of obtaining an increase of wages was an act
punishable by law. However, it has to be pointed out that the principal aim of the Regulations of Assemblies was to control political
organisations.
405
JAPAN
LEGAL CONTROL OK " T R A D E ASSOCIATIONS " , 1S68-1889
Under the new policies of the Meiji Government, commerce
and industry began gradually to thrive, but most enterprises were
still on a small scale. There was no co-ordination among them, nor
was there any discipline. Inferiority of the quality of products due
to careless manufacture was inevitable, especially as there was no
conscious efforts made to raise the standard of the manufactured
goods.
At this juncture, the Government in 1884 issued the Regulations
concerning the Tea Producers' Associations — Department of.Agriculture and Commerce Notification, No. 4 (Chagyo Kumiai Kisoku)
— as well as the Standing Rule concerning Trade Associations —
Notification No. 37 (Dogyo Kumiai Junsoku) — in order thereby
to promote the benefits of business and to correct the evil practice
of the careless manufacture of coarse goods, stimulating the mutual
co-operation of the persons in the same trade.
Of these two enactments, the Standing Rule concerning Trade
Associations is still in force to-day, while the Regulations concerning
Tea Producers' Associations have been amended frequently since
then. These were followed by the enactment of the Saké Manufacturers' Associations Act (Shuzo Kumiai Ho, Act No. 8 of 1905), the
Cattle-Raising Associations Act. (Chikusan Kumiai Hô, Act No. 1
of 1915), etc. As regards raw silk and numerous other important
products, after having passed through many stages of evolution the
Important Products Trade Associations Act (Jiuyo Bussan Dogyo
Kumiai Hô) was enacted in 1900.
However, the " trade associations " (Dogyo Kumiai) dealt with
by these laws were all of them merely aiming at the "promotion of
the business interests and the correction of the practice of careless
manufacture " by the mutual discipline of the persons in the same
trade. They were consequently different in their nature from the
wholesale dealers' unions (Toiya Kumiai) which existed prior to the
restoration of Meiji. They were neither of the nature of the
" Kartei " aiming at the monopolisation of industry, nor of the
modern organisations designed to oppose the workers.
CONSTITUTIONAL GUARANTEE SINCE
1S89
Tn February 1089, the Constitution long craved for was promulgated and by virtue of it the Diet was convoked in 1S90 for the
4o6
FREEDOM OF ASSOCIATION
first time in the history of Japan. The Constitution gave the formal
guarantee to all Japanese citizens for the freedom of speech,
authorship, press, assembly and association.
Indisputably, the
adoption of the Constitution with a representative system of government was a very radical step to take for this ancient empire, ruled
for ages under a feudal regime. Our main task will be to examine
the exact conditions under which this Constitutional guarantee has
been applied in the industrial sphere to employers and employees.
SUBSEQUENT DEVELOPMENT, 1889-1925
The two successive wars fought successfully by Japan, one
against China in 1894-1895 and the other against Russia in 19041905, raised the status of Japan immensely. Her industry, commerce,
and trade expanded enormously within a few decades and
the prosperity of the nation was heightened in due proportion.
After the enactment of the Constitution numerous laws dealing
with industry, trade and trade associations were issued, of which the
above-mentioned Saké Manufacturers' Association Act, Cattle-raising
Association Act and the Important Products Trade Association Act
were only a few instances. Among others, though differing slightly
in nature, the Co-operative Society Act (Sangyo Kumiai Ho) of
1900 has to be mentioned, in view specially of a remarkable progress made by the co-operative movement in Japan in the last
quarter of a century. Mention must also be made of the Chamber
of Commerce Act (Shogyo Kaigisho Ho, Act. No. 31 of 1900),
which is perhaps one of the most important of the existing laws
relating to employers' organisations.
Though the various laws referred to ' above are of a great
consequence from the point of view of Japanese industry, it is
not our purpose to enumerate them exhaustively. However, as
a measure which has had an important bearing upon the situation
of trade unionism, mention must be made of the Public Peace Police
Act (Chian Keisatsu Ho, Act No. 36 of 1900) which was enacted
in the same year as the last mentioned, two Acts. Articles 17 and
30 of this law prohibited and penalised the acts of " instigation ",
" incitement ", etc. committed in a labour dispute, and bitter
criticisms were made against this law as a menace to trade unionism
and an obstacle to workers' freedom.
After the Russo-Japanese war, Japanese industry expanded with
more vigour than ever and it was not long before the industrialists
JAPAN
4°7
and merchants organised themselves in something analogous to
" Kartels ", partly in order to take united action in their dealings
with workers and partly to carry on their political or economic
activities against outside elements in the interest of their own business. The beginnings of workers' organisations, aiming at the
defence of their economic interest, approximately coincided with
the organisation of the former, though the growth of organisations
of either class was only gradual and slow for a considerable time.
LATEST LEGISLATION, 1925-1926
Most remarkable progress in the field of social and labour legislation has taken place in Japan only recently. Since the creation of
the International Labour Organisation, in which Japan has taken
a conspicuously active part, a large number of laws granting
increased protection to her working classes have been enacted,
inspired in many instances either by the decisions of the International Labour Conference or by the principles of this Organisation.
However, we must refrain from enumerating the various new labour
laws, confining the scope to only such laws as would be considered
to affect directly or indirectly the freedom of association.
In 1925, the Parliament of Japan enacted the Public Peace
Maintenance Act (Chian Iji Ho, Act No. 46 of 1925) and in the
following year the Control of Violence Act (Boryoku Koi-to-Shobatsu
Ho, Act No. 60 of 1926). Of these two, the former is intended to
cope with the spread of communistic or revolutionary ideas, while
the latter is for the control and suppression of various forms of
violence.
*
After dealing with a series of important labour measures, the
Government laid before the 1925-26 session of Parliament several Bills
which are of a direct interest to the freedom of association.
First of all the Government proposed the repeal of the muchcriticised Articles 17 and 30 from the Public Peace Police Act of
1900. The Bill was passed without difficulty and it has gone into
effect from 1 July 1926. At the same time as this Bill, in fact in
conjunction with it, another Bill for the arbitration and conciliation
of labour disputes was presented by the Government to Parliament
which the latter duly adopted, and the law has come into operation
also from 1 July 1926. A third, called the Trade Union Bill, was
perhaps the most ill-fated of the numerous Bills submitted by the
408
FREEDOM OF ASSOCIATION
Government to the last session of Parliament. Due to the failure
of this last, but by no means least important Bill to pass the legislature, the legal status of trade unions in Japan is " in suspense ", as
it were, for the present moment.
The analysis of this Bill as well as a closer study of the abovementioned various laws given in a following Chapter will show how
the legal position of the question of freedom of association stands in this
country.
'
§ 2. — Development and Structure of Employers' and
Employees' Associations
EMPLOYERS' ASSOCIATIONS
Historical
Survey
Owing largely to the fact that the modern capitalistic economy
in Japan is only of a recent growth, employers' organisations formed
for the object primarily of combating workers' trade unions may
be said to have been very few and unimportant so far. as industry
in the limited sense is concerned. In agriculture alone we iiave
the instance of a strong organisation called the Landowners' Association of Japan (Nihon Jinushi Kyokai), which, however, has a
history of only a few years since its foundation. This is a fact
worthy of note, inasmuch as among the workers of Japan the development of trade unionism in the Western sense of the word can
be traced back at least several decades .and there exists comparatively
abundant literature on its history, forms, and tactics, in a sharp
contrast with the scarcity of material relating to the activities of
employers in the same field.
Mention has already been briefly made in the preceding pages
of many associations formed among industrialists under various
circumstances. As a matter of fact, if it is for the objects of mere
social intercourse, exchange of views or co-operation for the improvement of business management, development of efficiency, protection of employees, etc., Japanese employers have formed a number
of organisations among themselves, although no attempt at systematic efforts was made, so that those organisations have never been
entirely co-ordinated. If those bodies have begun to function as the
organisations of employers vis-à-vis the workers' unions, as indeed
they seem to have, such a development should be considered to be
of only recent origin.
4O9
JAPAN
The oldest of the organisations of employers of any importance
was perhaps the " Mine-Owners' Friendly-Talk Association " (Kozan
Kon-wa Kai), organised in 1896 among the owners or managers of
mines throughout Japan. Among manufacturers or factory-owners,
a number of organisations were founded after the coming into force
of the Factory Act in 1916, stimulated no doubt by the urgent
circumstances which the strict enforcement of the factory law
created. Their names and organisation are by no means uniform.
Some are called " Factory Association " (Kojo-Kyokai),
others
Industrial Association " (Kogyo Kai), " Factory-Owners' Friendly-Talk Association " (Kojo Kon-wa Kai), etc. They exist mainly
in a town or village, and even the largest of them do not cover as
a rule more than one prefecture. There are about twenty national
organisations of employers which are important, including Kozan
Kon-wa Kai, Boseki Rengo Kai, Denkt Kyokai, Kogyo club, Senshu
Kyokai, etc. A large number of them appeared suddenly in 1919,
1922 and 1923. In 1924 they numbered altogether 150 and in 1925
as many as 172.
Employers' associations were founded in the following order :
Date of foundation
Limited to a
prefecture
1896-I918
4
12
16
1919
6
25
31
1920
4
II
15
1921
2
7
9
1922
4
32
36
1923
6
19
25
1924
5
6
II
1925
4
8
12
—
18
18
35
138
172
Date unknown
Total
Others
Total
4!°
FREEDOM OF ASSOCIATION
Movement for National
Federation
The lack of co-ordination and unification among employers'
organisations gives rise naturally to many inconveniences. In order
to ameliorate such a condition, a proposal was made recently for the
formation of the National Federation of Industrialists, the most
enthusiastic supporter of the project being the Osaka Industrial
Society. Meetings have been held in various centres and the opinions
of influential manufacturers on the proposal have been asked. The
plan contemplated is to bring together, first of all, the existing
organisations on a national basis and eventually to affiliate other
separate companies. An opportune impetus for the materialising
of the proposal was supplied by the National Conference of Industrial
Organisations, convoked specially to consider certain problems arising
out of the Amended Factory Act which has been enforced from i
July 1926. The Conference was held in Osaka on 28 September
1926, under the auspices of the Osaka Industrial Society, the Osaka
Chamber of Commerce and Industry, and the Friendly-Talk Association of Osaka Factory-Owners. Representatives of practically all
the most important employers' organisations in Japan participated
in the Conference and took up a united attitude on the question of
the enforcement of certain details of the factory law. While the
actual formation of the national federation has not taken place as
yet, there is little doubt that the project will materialise some day.
On the other hand, Japanese newspapers reported that the
Kyocho Kai succeeded in bringing together the men responsible
for labour problems in the leading factories in and around Tokyo,
and in -establishing a common organ for the research and handling
of labour questions. The first meeting was held on 12 October 1926
in Tokyo, where some 20 representatives of the most important
industrial concerns were present. This organ expressly proposes
to be more of a " conciliatory " rather than a combative organ.
These attempts made simultaneously in Tokyo and Osaka are
indications of a rising tide towards a nation-wide combination of
employers to meet labour questions.
Present State of Employers'
Associations
Although there are several among the existing employers'
associations which greatly interest themselves in matters concerning
labour — such, for example, as the giving of instruction and training
JAPAN
41t
to workers or apprentices, awarding of certificates to workers for
good conduct, promotion of welfare work, publication of the
employers' point of view at the time of enacting, amending or abolishing
labour legislation, replying to enquiries-made by the Government,
participation in the selection of the Employers' Delegate to the
International Labour Conference, etc. — generally speaking they are
quite limited in number. However, this does not mean either that
the rest of the employers' associations absolutely lack such functions
or that they are uninterested in the subject ; as a matter of fact, some
of them may concern themselves in the questions of the relationship
with labour, or, under u r g e n t necessity they may even take up a
definite attitude of hostility to the development of some sort of
labour legislation or trade unionism.
Indisputably, a remarkable tendency of the more important
employers' organisations is to take increasingly active interest in
labour questions, as is illustrated by the previous section.
However, disregarding the projects for the moment, we will now
examine and classify the existing organisations of employers
according to their more predominant functions. H e r e we find that
they fall into four categories, differing slightly from one another,
as follows :
I n the first category are those associations which aim merely
a t the " promotion of the business interest and the correction of
evils " by the organisation of employers or industrialists in the same
trade.
Notable examples are : (i) " Trade Association of
Important Products " (Juyo Bussan. Dogyo Kumiai) and (ii) other
" T r a d e Associations " (Dogyo Kumiai).
T h e latter are established
in accordance with the " Standing Rules of Trade Associations ",
hence the general name " Standing Rules Trade Associations "
(Junsoku Dogyo
Kumiai).
T h e second category consists of the Chambers of Commerce and
I n d u s t r y , which aim at representing the interests of the whole body of
industrialists and merchants in the same city and to act in their
interests. T h e Chambers often act voluntarily, representing the
opinion of the capitalist group in matters relating to workers, because
their functions as laid down by law are " to express the opinion in
t h e interest of commerce and industry and to present the opinion
to the administrative authority concerning the enactment, enforcement, amendment and abolition of the laws relating to commerce
and industry " as well as " to reply to the question of the
412
FREEDOM OF ASSOCIATION
administrative
authority concerning the matters relating t o
commerce and industry " (cf. Article 7 of t h e Chamber of Commerce
and I n d u s t r y A c t ) . T h u s , we find that in 1923 when the amendment
of the Factory A c t was under discussion, the Chambers of Commerce
in all localities published their opinions on behalf of the capitalist
g r o u p . Also, the Employers' Delegate to attend the International
Labour Conference is actually chosen each year from among t h e
candidates nominated by the Chambers of Commerce and I n d u s t r y .
I n the third category should be grouped those associations which
aim to examine and discuss all matters of common interest, including
labour problems. These associations are formed by industrialists
or factory owners of various kinds in the same locality, and t h e
most representative of them are the Factory Owners' Friendly-Talk
Societies (Kojo Kon-wa Kai), which are being formed everywhere
at present. Although they are not yet organised on a ver}' firm
foundation, it is certain that they will become powerful organisations
in t h e future to deal with labour problems. I n this sense, they are
comparable with the land owners' unions (Jinushi Kumiai), the land
owners' friendly-talk societies (Jinushi Kondan Kai), e t c . , although
the latter are far more firmly organised and carry out important
collective action against the tenant-farmers' movement.
Lastly, in the fourth category w e m a y group those which are
functioning like " trusts " or " kartels " by the combination of
employers in t h e same or affiliated industries. T h e outstanding
examples of associations in this category are the Japan Cotton
Spinners' Federation (Boseki Rengo Kai), the Cement Manufacturers' Federation (Cement Rengo Kai), etc., which are powerful
organisations, representing great bodies of capitalists of the country 1 .
EMPLOYEES' ASSOCIATIONS
Historical
Survey
T h e development of modern trade unionism in the exact sense
of t h e words may be said to have commenced among Japanese
workers only shortly before the Great W a r . W o r k e r s ' unions which
1
A full description of these associations will be found in a report
of the " Asiatic Enquiry " relating to industrial conditions in Japan, to
be published by the International Labour Office shortly.
JAPAN
413
existed previously were insignificant, being limited almost without
exception to one factory or mine.
The earliest union of workmen which came to public notice
was formed by rickshawmen in 1883 to oppose the introduction of
the horse-tramway system in Tokyo. In the following year, 1884,
an attempt was made to organise printers in Tokyo, but the time
not being ripe the project failed. A second attempt to organise
printers was made in 1889 in the printing establishment of the
Shuyei-sha, in Tokyo, but the printers outside the establishment
showed not only lack of interest but even positive suspicion towards
the organiser and the attempt soon proved a failure. The efforts
made in 1887 and 1889 among iron workers and in 1892 among
shoemakers were unsuccessful. It was only after the China-Japan wat
(1894-1895), which brought a brilliant victory and consequent
prosperity to Japan, that labour movement began to acquire a
more or less permanent character.
In 1897 the Society for the Promotion of Trade Unions (Rodo
Kumiai Kisei Kai) was established and under its patronage numerous
small unions began to appear, the notable examples being those
formed in the period between 1897 and 1899 among iron
workers, printers and locomotive engineers. The Society seemed
to prosper for a few years but it declined before long during the
period of economic depression following the transient trade boom
of the war time. Those small unions formerly under the patronage
of the Society for the Promotion of Trade Unions collapsed then
one after another.
A new epoch in the history of Japanese trade unionism began
in 1912 when the Yuai Kai was founded by Bunji Suzuki. The
success of the Yuai Kai in settling a strike of phonograph workers
near Yokohama in 1913 attracted the public attention. Thereafter
the membership of the union increased steadily. Branches "were
rapidly set up all over the country and the membership soon spread
to Corea and Manchuria. The Yuai Kai was later transformed to
the General Federation of Japanese Labour. It remains to this day
the backbone and mainstay of the Japanese trade unions.
In tracing the early development of workers' organisations in
Japan, a word has to be said about the Shin-yu Kai, founded in 1916,
among the printers. This union owes its origin to the printers'
union of 1899. Its essential importance lies in the fact that it has
always been a more militant or radical union, forming the nucleus
4H
FREEDOM OF ASSOCIATION
of the left wing movement, while the Yuai Kai has stood for s..und
and practical policies and has led the right wing of the labour
organisations.
The Great War supplied Japan with new opportunities for
industrial activity and economic expansion, and these, in turn,
favoured the growth of workers' trade unionism.
Before the
outbreak of the war, the number of new unions formed each year
was five or six at most ; but in 1916 thirteen new unions were
organised, in 1917 fourteen, and in 1918 eleven. However, ¿no
event in the past ever gave so powerful a stimulus to Japanese trade
unionism as the creation in 1919 of the International Labour
Organisation. In the atmosphere of a general social awakening and
fa\oured by the economic situation, no less than 71 new unions were
formed in 1919.
From 1920 onward, for a period of about five years Japanese
trade unions may be said to have entered into a period of consolidation. In 1920, the All-Japan Miners' Federation was formed by a
number of unions of miners which appeared during the previous
year by effecting a fusion with the miners' department of the Yuai
Kai. In 1921, the organisations "of workers in the arsenals, State
iron works, and other undertakings of the Government were amalgamated and a powerful union known as the Federation of Workers '
in State Enterprises came into being. Within a few months after
this, the Japan Seamen's Union was formed, taking under its aegis
twenty-two seamen's unions out of forty-eight existing ones. In
addition to these, another strong organisation, called the Japan
Farmers' Union, was formed in 1921 among agricultural tenants
and farm labourers.
The following year, 1922, witnessed the fusion of many more
trade unions. - Machinists' unions were incorporated into the
Federation of Mechanics' Unions.
In the spring of 1923, printers' and typographic workers' unions
were amalgamated into the National Federation of Printers, and
then towards the end of the year, iron workers, dyers, electrical
workers, and mechanicians of Osaka combined their unions with the
Western Federation of Labour of Iron Workers and founded the
Federation of Japanese Trade Unions.
In 1924, a great combination of the unions of workers in aP
the navy yards of Japan resulted in the- founding of the Federation
of Navy Labour Unions. During the same year, 1924, a project for
JAPAN
415
the formation of the Transport W o r k e r s ' Federation was made by
the leaders of the Tokyo T r a m w a y W o r k e r s ' Union.
T h e plan
materialised in June 1926. Early in 1925, the ceramic and porcelain workers formed the Federation of Ceramic Workers with
headquarters in Nagoya. However, the chief event of 1925 was the
founding in May of the Japanese Council of T r a d e Unions as a rival
of the General Federation of Japanese Labour. Since the appearance
of this influential national organisation, embracing the radical or
communistic unions, the cleavage in Japanese labour movement has
progressively deepened, dividing the trade unions into many hostile
groups. Exactly a year after the formation of this body, that is,
in May 1926, the amalgamation of all leading unions with anarchosyndicalistic tendencies took place and the National Free Federation
of Labour Unions came into being, representing henceforth t h e
extreme left wing in the labour movement of this country.
Meanwhile, in view of the impending General Election, carried out
for the first time under the new Universal Suffrage law, Japanese
trade unions were engrossed during 1926 in the effort to form
" proletarian political parties ".
T h e wrangle for supremacy in
the newly formed parties, the question of the admission or infusion
of extremists, etc., caused further cleavage in the movement and
dealt an almost fatal blow to at least two of the most influential
national organisations, namely, the General Federation of Japanese
Labour and the Japan F a r m e r s ' Union. T h e membership of both of
them was decimated because those members of the General Federation who were against its very moderate action and those of the
Japan F a r m e r s ' Union who disapproved the radical tendency of the
Union came together in December of 1926 to form c. " centre "
organisation. I n April 1928, the Japanese Council of T r a d e Unions
was dissolved by order of the Government by the application of the
Public Peace Police Act (Article 8, paragraph 2) which authorises
the Minister of the Interior to prohibit the existence of any organisation " if deemed necessary for the maintenance of public peace and
order ".
1
A full description of the organisation, political tendency, etc., of
these trade unions ma3* be found in a report of the " Asiatic Enquiry ",
relating to Japan, shortly to be published by the International Labour
Office.
4l6
FREEDOM OF ASSOCIATION
Present
State
of Employees'
Trade
Unions
According to the information which is available, prior to 1921,
t h e net increase in t h e n u m b e r of unions each year was as follows :
Date
Number of
unions
Date
Number of
unions
Before 1911
33
1917
M
1912
5
1918
II
!9!3
6
1919
71
1914
6
1920
66
1915
4
1921
71
1916
13
T h u s at the end of 1921, there were altogether 300 unions with
103,440 members. T h a t the n u m b e r of unions as well as their
membership increased steadily becomes clear when the following
table is studied in comparison with the preceding one 1 :
Dale
I921
1922
1923.
1924
!925
1926
1927
1928
1929 *
Number of unions
3OO
38/
432
447
490
500
505
501
542
Membership
103,440
137,491
I25.55I
175,454
234,000
272,000
309,493
308,900
321,125
T h e actual numbers of Japanese workers and their unions are
as follows :
1
Official statistics of the Social Affairs Bureau of the Department
of the Interior, for 31 December each year, except that the figures for
1929 refer to 30 June 1929.
JAPAN
417
NUMBER OF JAPANESE WORKERS (31 DECEMBER I928)
Men
(1) Factory workers :
State or Municipal factories
Privately owned
Under the Factory Act
Not under Factory Act
Total (private)
Total factory workers
"
(men and women)
women
31,300
107,866
825,164
861,540
259,827
138,848
1,084,991 1,000,388
1,192,857
1,031,688
2,224,545
2. Mining workers
Total (men and women)
233,818
61,783
295,601
3. Transport workers
Total (men and women)
424,111
33,445
457.556
4. Casual labourers and others
Total (men and women)
1,440,382
406,696
1,847,078
'.
5. Grand total
Total (men and women)
3,291,168
1,533,613
4,824,780
JAPANESE TRADE UNIONS (31 DECEMBER 1928)
On the last day of December 1928, there were 501 unions with
over 308,900 members. A m o n g the prefectures, those with the
largest n u m b e r of unions and union members were the following :
Tokyo
Osaka
Kanagawa
Hyogo
Hiroshima
Fukuoka, etc.
T h e distribution
follows :
of
Industries
Machine and tools
Chemical
Textile
Food and drink
Mining
Gas and electric
Transport
Communication
Engineering works
Miscellaneous
Others
Freedom of Association
Unions
Members
83
67
53,300
41,148
41,178
75,929
23,024
18,789
3°'
37
15
17
members
in
various
industries
was
Unions
Members
64
57
18
13
15
14
59
1
22
84
154
97,603
10,887
12,032
3,937
7,736
8,157
124,4852,232
2.833
12,666
26,332
as
27
4l8
FREEDOM OF ASSOCIATION
Further classifications were as follows :
Classified
by the Nature
Craft unions
Industrial unions
Mixed unions
Classified
Single unions
Federated unions
of the
Union
156
202
143
by the Form
of the
292
41
25,801
251,052
32,047
Union
164,842
144,058
CHAPTER II
CONDITIONS OF LEGAL EXISTENCE
§ 1. — Constitution of 1889
The fundamental legal basis of the right of association is the
Constitution of 1SS9. Article 29 of the Constitution reads :
Japanese shall have the freedom of speech, authorship, press, assembly
and association within the limits of law.
It clearly means that the right of Japanese citizens to form or
join an association is guaranteed " within the limits of law ", that
is, so far as the act of forming or joining an association does not
involve the contravention of law. However, in order to discover to
what extent employers and workers of the country enjoy their
freedom of association, it is necessary first to examine the conditions
of existence of associations as laid down by the actual legislation
and then whether or not the existing legislation meets the special
needs of either employers' or workers' organisations so as to make
possible the full exercise of their rights.
What then are the existing legal provisions which regulate
associations ? Generally speaking, the present legislation in Japan
regulates two forms or kinds of associations, namely, those with
legal personality and those without it.
We will attempt first of all to show here the main outline of
existing laws, and then to discuss the present position of associations
in Japanese private law, with special attention to the problem
which arises from the non-existence of a special law to give to
workers' trade unions a definite legal status.
420
FREEDOM OF ASSOCIATION
§ 2. — Civil Code of 1896
L A W RELATING TO " LEGAL PERSONS " (HOJIN)
The Japanese law relating to associations with legal personality
is found in Book I, Chapter II of the Civil Code of 1896 (Act No.
89), which was amended in 1901 (Act No. 36).
Associations with legal personality in Japan may be classified
into (a) Public Legal Persons l and (b) Private Legal Persons 2.
A public legal person is formed with the object of public enterprise.
Besides the prefectures, cities, towns, villages, etc., such public
organisations as co-operative societies, Chambers of Commerce,
water-utilisation associations, etc., belong to this category. On the
other hand, private legal persons are those formed with the object
of private enterprise. According to the purposes or construction
of the associations concerned, the law classifies the private legal
persons into either (a) " legal persons for public benefit " (Koeki
hojin) and " legal persons for profit-making " (Eiri hojin) or (b)
associational legal persons " (shadan hojin) * and " foundational
legal persons " (Zaidan hojin) 4.
A legal person for public benefit is organised for the purpose
of prosecuting works for public benefit such as those relating to
religion, charity, science, arts, crafts, etc., whereas a legal person
for profit-making is constituted for the purpose of promoting the
economic interests of individual persons. The latter is therefore
called sometimes an " economic legal person " (Keizai-jo no hojin),
which includes commercial companies and partnerships and various
legal persons constituted for the purpose of carrying on agriculture,
mining, fishing, etc. " Legal persons for public benefit " should
not be confounded with the above-mentioned " public legal persons "
because the former are merely " such private legal persons as execute
works for the public benefit " and not " public legal persons ".
The distinction between " associational legal persons " and
" foundational legal persons " is drawn by the difference in the
organisation and not in the purpose of the associations concerned.
An associational legal person is a body organised of a number of
'- Ko-Hojin.
Shi-Hojin.
3
Shadan " Verein " or " corporation ".
4
Zaidan " Stiftung ".
2
JAPAN
42I
persons for the purpose of carrying on some common business and
which has a legal personality, while a foundational legal person is
an aggregate of property devoted to a certain object and which also
O
possesses a legal personality. An associational legal person may be
formed for profit-making, like a bank, company, etc., or for public
benefit such as a church, public" welfare society, etc. The foundational legal person is necessarily created for' public benefit, such for
example as schools, hospitals, etc.
We will now see what are the main conditions imposed by law
upon these various associations with legal personality.
Formation of a Legal Person
In order to form an associational legal person, the founders
must first draw up articles of association or a " Constitution "
(Teikan) embodying fundamental rules concerning the organisation
and operations of the projected legal person : they must contain the
following " compulsory matters " (Hitsuyo-jiko) that is, matters
failing the inclusion of any of which the legal person does not come
into existence, namely : (i) the object, (ii) the name, (iii) the
office or offices, (iv) provisions relating to its property (capital),
(v) provisions relating to the appointment and dismissal of directors,
(vi) provisions relating to the organisation or loss of membership
(cf. Article 37).
As regards a legal person for public benefit, the drawing up
of a " Constitution " is not the only thing required, but the permission of the State must further be obtained (Article 34) - The founders
must make an application for such permission to the competent
authorities, accompanied by the " Constitution " and other relevant
documents. The legal person comes into existence only when
formal permission is obtained. The alteration of the " Constitution "
can ordinarily take place only with the consent of at least threefourths of the total number of members. But, if the " Constitution "
provides otherwise, the alteration may be effected in accordance
with the special provisions it lays down. In all cases, however,
the alteration becomes valid with the permission of the State
authorities (Article 38).
In forming a legal person for profit-making in commerce, namely,
a commercial company, as stated previously, the conditions laid
down in the Commercial Code (Book II, Article 42, et seq ; also
Civil Code, Article 35) must be adhered to. However, the
422
FREEDOM OF ASSOCIATION
examination of these conditions as well as those for the formation
of a foundational legal person (Civil Code, Articles 34, 39-42) does
not properly fall within the scope of our present enquiry. For the
same reason the consideration of the rights of foreign legal persons
in Japan (Civil Code, Article 36) must also be left out.
Organs of a Legal
Person
A n association with a legal personality must have such organs
a s directors, supervisors, general meetings, liquidators, etc., and
they must operate in accordance with the provisions of law (Book
I I , Chapter I I , Administration of a legal person, Articles 52-67).
I n the event of negligence of duties, illegal act, etc., on the part
of directors, supervisors or liquidators, they are liable to a fine of
more than 5 yen but not exceeding 200 yen (Article 8 4 ) .
Capacity
of a Legal
Person
I t goes without saying t h a t a legal person is the subject of
rights a n d obligations quite independent of the founders or members
of the association who form the legal person. However, we must
not overlook the important point that the legal personality is
conferred by law for certain objects as laid down in the
" Constitution " of the association (or determined by the " act of
endowment " 1, in the case of a foundational legal person) and
therefore the rights and obligations of a legal person do not extend
beyond the limits of its objects (Article 43). I t is liable to the
payment of damages caused to other persons by the act of its
directors, etc., in the performance of their functions as organs of
the legal person but it has no responsibility for any damage caused
by them to other persons by acts which are not within the scope
of the objects of the legal person. I n the latter case, the obligation
to pay the damage falls not upon the legal person but upon those
members (e.g. directors) who personally h a d to do with the
performance of the illegal acts in question (Article 4 4 ) .
Dissolution
of a Legal
Person
T h e dissolution of a legal person may take place for various
causes such as : (i) any cause of dissolution specified in the
1
Act of endowment = Kifu
K6i.
JAPAN
423
" Constitution " ; (ii) completion or the impossibility of completion
of the undertaking which forms the object of the association ; (iii)
bankruptcy ; (iv) cancellation of the permission ; (v) lack of
members ; (vi) resolution of a general meeting (Article 68). Upon
dissolution of a legal person, liquidation must be carried out and the
association is regarded as still existing as long as liquidation is not
completed. When there is any property left after dissolution it
goes to the person designated by the " Constitution " or the " Act
of endowment ". Should there be no person thus designated, the
directors may dispose of the property in question for purposes which
are analogous to those pursued by the legal person, and in case
this is found to be impossible the property goes to the State
Treasury (Articles 68-83).
L A W RELATING TO " PARTNERSHIPS " (KUMIAI)
Besides the legal provisions relating to legal persons which are
outlined above, the Civil Code contains those relating to
" Partnerships " {Kumiai) in Book III, which deals with " obligations " (Book III, Chapter II, Contract : section 12, Partnerships,
Articles 667-688).
The association considered here is a form of contract and is
formed by an agreement by which each of the contracting parties
agrees to make contribution in order to carry on a common
undertaking (Article 667). It differs from " associational legal
persons " in that the body in question does not possess an independent
personality but is simply a contractual'relation existing between the
several members. Therefore as against third persons, the rights and
duties of the body are the rights and obligations of the individual
members. The property, if any, of the body in question is
" collectively owned " l by the several members, since the formation
of the association in this case does not create an independent personality which is a subject of rights and obligations (Article 668).
Each party to a contract of association is bound to make a
contribution, the nature and amount of such contribution to be
fixed in the contract. Furthermore, each party has the dutv, as
well as the right, to execute the duties. He has also to share the
losses, besides having the right to share the benefits (Articles 670673). Since the property of the association is collectively owned,
1
Collectively owned = Kyo yu.
424
FREEDOM OF ASSOCIATION
each party to the contract may claim his right as against third
persons in proportion to his share in the property. Provided that
at the time of the formation of their obligations they did not know
of the rate of distribution of the losses, the creditors may exercise
their rights against each member for an equal amount.
A partnership can bè terminated either partly or wholly. It
is partly terminated by the withdrawal of a member.
The
withdrawal of a member may take place at any time at his discretion
when the duration of the partnership is not fixed in the contract,
or when it is provided that it shall exist during the lifetime of one of
the members (Article 678, 1), but when there is an unavoidable cause
each member may withdraw at any time, even at a time
disadvantageous to the association, and also when the duration of
the partnership is fixed in the contact (Article 678, 2). The
withdrawal of a member takes place further in the case of death,
bankruptcy, incompetency or expulsion (Article 679).
The total termination of a partnership occurs by dissolution.
It is dissolved upon the maturity of the term, or when the object
with which it has been formed has been accomplished or it has become
impossible to accomplish the same (Article 682). But when an
unavoidable cause occurs any member may apply to the Court for
an order of dissolution (Article 683). The termination of a
partnership takes effect only as to the future, and on the dissolution
of the partnership a liquidation must be carried out in accordance
with the provisions laid down by law (Articles 684-688).
CHAPTER III
LEGAL LIMITS
INTRODUCTION
In the foregoing Chapter we have outlined the existing
legislation applicable to associations in general, analysing the legal
provisions regulating legal persons on the one hand and partnerships
on the other. However, whether or not all associations which are
not legal persons are actually covered by, or should be regarded
as subject to, the provisions of the Civil Code relating to partnership
is a disputable point in Japanese jurisprudence. This question is
of particular importance in determining the legal rights and status
of workers' trade unions, as well as certain employers' associations
which do not possess a legal personality at present.
In order to gain a comprehensive view of this question on
which opinions are somewhat divided, we have to examine more
closely the nature of the existing associations from the points of
view of both public and private laws of Japan.
§ 1. — Employers' Associations
There are certain important associations of employers in Japan
formed in accordance with some special legislation which are
deignated by some scholars by the term " legal associations " 1, as
against others established without reference to any special law,
namely, " free associations " 2. Both the " legal associations " and.
the " free associations " may or may not possess legal personality.
LEGAL ASSOCIATIONS
(HÓTEKI
DANTAI)
Legal associations exist in principle exclusively for public benefit
(koeki) although in practice some of them may occasionally act
1
1
Hoteki Dantai in Japanese.
Xin-i Dantai in Japanese
426
FREEDOM OF ASSOCIATION
upon outside bodies in such a way as would defend or promote the
members' own interests. The establishment of legal associations is
to a large extent actuated by the State. The State confers various
privileges upon them and many of them possess a legal personality,
by virtue of a special law, in the capacity of " legal persons for public
benefit created by a special legislation " (Tokubetsu Ho ni yoru
Koeki Hojin).
The chief examples of the legal associations with a legal personality are the Trade Associations of Important Products (Juyo Bussan Dogyo Kumiai) and the Chambers of Commerce and Industry
(Shoko Kaigi Sho).
The trade associations are organisations of
persons conducting the same trade, formed with the objects of
promoting common trade interests and removing the evils of the
trade. The State has conferred upon these organisations special
privileges in public law, expressly recognising that these objects are
in harmony with the public interests of the State. Accordingly, all
persons conducting a certain trade within the scope and fixed area
of a given Trade Association are uniformly compelled to join and they
are not allowed to withdraw their membership at their own will.
Moreover, those who contravene the " Constitution " (Teikan) of
the association to which they belong will be fined by it. Thus the
legal status of these legal persons in public law is considerably different from that of legal persons in private law.
Then, the notable examples of legal associations without a legal
personality are the " Standing Rules Associations "
(Junsoku
Dogyo Kumiai), which are similar in many respects to trade associations. The important difference is in the legal status. A Standing
Rules Association must, in the establishment of the association,
receive the permission of the local governor, but it has no legal
personality, and the affiliation of members is only voluntary and not
at all compulsory as is the membership in trade associations. In
the case of a Chamber of Commerce and Industry, which is also
established in accordance with a special law, by merchants and
industrialists within a city or prescribed area for the promotion of
commerce and industry, membership is open to all those merchants
or industrialists who are engaged in business within the area and
possess prescribed Qualifications.
The primary object of the legislation has been, in practically
all cases, to bring small enterprises in the same trade or industry,
or in the same geographical area, in closer touch with one another
and to make them establish permanent associations in order to
JAPAN
427
promote similar enterprises or to remove evil practices used in the
business. Obviously it is on account of these objects, which are
in the interests of the " public welfare ", that these associations
are given their legal status or legal personality. I t should be
noted, further, that the membership in most of them is compulsory
upon persons in the same trade. H e r e is the important difference
between a legal person in public law and a legal person in private
law. While the former has the legal power to compel all or a
number of certain specified persons to join, even against their wish
(Important Products T r a d e Association Act, Article 4 ) , the latter
has no such coercive power. T h i s may be regarded as a limitation
of the freedom of business imposed on behalf of public benefit. A
further restriction is placed on these legal associations in that they
cannot dissolve without the permission of the competent authorities,
while the State may order their dissolution under certain special
circumstances which are specified by law (Trade Association Act,
Articles 15-16 ; Chamber of Commerce and Industry Act, Articles
37, 4 5 ) T h e legal persons under this category, i.e. legal associations,
enjoy other rights besides those already mentioned. Being legal persons, their decisions are of course binding upon all members. T h i s
is common to all legal persons, b u t a legal person in private law
cannot exercise the right of demanding certain things from persons
other than its members such as, in the case of a Chamber of Commerce and I n d u s t r y (Chamber of Commerce and I n d u s t r y Act,
Article 29). Nor can they inspect t h e articles manufactured by
members or fine the defaulting members as in the case of trade
associations (Trade Association Act, Article 10), or compel the
payment of moneys as in the case of a Chamber of Commerce and
Industry (Chamber of Commerce and Industry Act, Article 33).
Parallel with these rights, the legal persons in public law have
certain special obligations or duties inasmuch as their objects are
recognised to be, as in the case of the State itself, " public ". T h e y
are subject to a special supervision of the State. T h e y must m a k e
investigations and reply to the enquiries addressed to t h e m by the
competent authorities ; the election of members must be concluded
under the supervision of the local governor ; the appointment of
officers must be approved ; reports of settled accounts, etc., must be
submitted to the competent authorities, and in all these cases the
latter reserve the power to dissolve the association, dismiss the
428
FREEDOM OF ASSOCIATION
officers, or declare decisions invalid, when the decisions or acts of
officers are either in contravention of law or of " Constitution ", or
injurious to public welfare.
In respect of the formation of the deliberative organ and the
appointment of directorial, supervisory and consultative organs, the
legal persons created by special laws such as the Chambers of Commerce and Industry and the trade associations, differ on some points
of detail from the legal persons in private law. However, broadly
speaking, the general principles which apply to the legal persons
in private law are equally applicable to these associations.
F R E E ASSOCIATIONS ( N I N - I DANTAI)
If the above-mentioned legal associations enjoy certain privileges
in virtue of a special legislation they must inevitably face at the same
time certain disadvantages under the somewhat rigid administrative
supervision of the competent authorities. Not being formed spontaneously or voluntarily, but being compelled by a special legislation
or the direct will of the State, the social and economic powers of
these associations are apt to be inferior to those of the associations
bound by no special legislation. This is perhaps an explanation of
the marked tendency of employers to combine into free organisations,
which has been accelerated lately, especially in the period of economic
depression after the Great War. Free associations have without
doubt the possibility of becoming a tremendous social force inasmuch
as they count among their members financial magnates and large
corporations, and especially since a large number of them have acquired legal personality. What, then, is the legal basis upon which
they have acquired legal personality?
It will be recalled that under the existing législation, associations formed with the object of profit-making may, by adopting any
of the forms of a company as laid down in the Commercial Code,
acquire a legal personality (Civil Code, Article 35). Obviously,
however, the employers' associations under review are not the same
as the companies covered by the Commercial Code. We have shown
previously that any organisation which is organised for the purpose
of prosecuting works for public benefit such as those relating to
religion, charity, science, arts, crafts, etc., and which does not aim
at profit-making, may acquire a legal personality with the permission
of the competent authorities (Civil Code, Article 34). We must
conclude that the voluntary or " free " associations o*' employers
JAPAN
429
which possess a legal personality have been granted their present
legal status as " associations for public benefit " within the meaning
of Article 34 of the Civil Code. At all events those free associations
of employers with a legal personality, namely, the corporations in
private law, enjoy private rights and are also liable to obligations
within the scope of their objects as laid down in their " Constitution ". They also receive the legal protection of the State within
the limits of their objects.
The more representative of these associations are : the Electric
Association, Japan Shipowners' Association, Japan Industrial Club,
Federation of Paper Manufacturers, Japan Steel Manufacturers'
Association, Japan Fire Insurance Association, Association of Life
Insurance Companies, Japan Milk Products Association, Osaka Business Men's Association, Federations of Industrial Associations, Hokkaido Coal Mining Association, etc.
In accordance with the provisions of the Civil Code (Article 43)
all these associations possess rights and are subject to obligations
within the scope of their respective constitutions. They have the'
capacity to own property in their own name and may become a
party to a lawsuit. Moreover, they are liable for damage done to
others by the directors or their representatives in the performance
of their duties (Article 44). The affairs of these associations are
subject to the supervision of competent authorities. The latter may
at any time examine, ex officio,, the affairs and the state of the
property of these associations (Article 67). A number of obligations
or formalities are imposed upon them. For example, these associations are obliged to register cheir establishment, removal, etc. They
must also prepare and keep an inventory of their properties, a list
of members, etc. (Articles 45, 46, 48, 51. 84). The authorities in
charge of these associations have, furthermore, the power to cancel
the permission for the establishment of any of the associations when
they have done anything beyond the scope of their object (ultra
vires), or contravened the conditions under which the permission for
their creation has been granted, or otherwise done anything injurious
to public welfare (Article 68).
Lastly, we have to consider the legal status of the associations
of employers without a legal personality which have been organised
spontaneously, by mutual agreement and not in accordance with any
special law.
There is a large number of associations of this description, such
FREEDOM OF ASSOCIATION
43°
as the Japan Cotton Spinners' Association, Japan Wool Industry
Association, Federation of Coal Miners, Mineowners' Friendly-Talk
Association, Federation of Economic Associations, Federation of
Bleaching Powder Manufacturers, etc.
The legal interpretation which has sometimes been given regarding these associations is that they should be subject to the rules in
the Civil Code regulating " partnerships ", but some scholars have
begun to take up a different interpretation of late \ It is pointed out
that these associations are formed, just like other associations possessing a legal personality, with a fixed name, definite objects and fixed
statutes or constitutions. Their organisation and actions are no
less rigidly bound by their respective constitutions than are the
associations with a legal personality. The only difference is that
legally they cannot become subject of private rights because they
have no legal personality. If these associations were really on a
contractual relation of partnership, their property must be regarded
as the common property of members (Civil Code, Article 668). The
members would be able to claim, upon their withdrawal from the
association, the repayment in money of their share or interest (Civil
Code, Article 682) and any one of them might appeal to the Court
for an order of dissolution of the association when any unavoidable
cause occurs (Civil Code, Article 683). Any such procedure would
be contrary to the idea of the organisation and is as a matter of fact,
out of the question. On these grounds, these associations are regarded
as " corporations without legal personality " (Jinkaku naki shadan).
In concluding this section, it may be pointed out that in the
case of employers' organisations, " free " associations seem generally
to enjoy a greater freedom than " legal " associations precisely
because they are not bound by any special law, whereas in the case
of workers' organisations, as will be shown below, the absence of
a definite legal status guaranteed by a special law has been found
to be a handicap.
§ 2. — Employees' Associations
Among the associations formed by workers in Japan, besides the
ordinary " trade unions ", which aim at the promotion or maintenance
1
Professor SDYEHIRO : " Rodò Kumiai no Hôritsnjô no chri " (Legal
Position of Trade Unions) in Kaizo of April 1925, quoted by Y. MORITA
in Waga Kuni no Shihonka Dantai (Employers' Associations in Japan),
PP- 157-158 ( in Japanese).
JAPAN
43'
of economic interests of wage earning workers, there are n u m e r o u s
mutual aid societies.
Occasionally secret organisations for a
revolutionary change of the present social order come to light.
However, our description must be confined for the present to " trade
unions " in the strict sense of t h e term. Reference will be made
to others only incidentally in so far as the question affects the trade
unions of workers.
T h e first important point which must be stated at the outset
in discussing the legal status of Japanese workers' trade unions is
that at the moment of writing this part of t h e report it is announced
that a T r a d e Union Bill, already presented by the Government to
the Diet twice in the past, is about to be re-submitted to the same
body. I n this connection it is necessary to point out that Japan has
hitherto had n o special law which confers a definite legal status upon
workers' trade unions, but that the legislation in view proposes to
grant certain special legal rights and status to them. T h u s it is
expected t h a t in the event of the passage of the Bill the legal
situation of trade unions will be considerably changed and improved.
W e must anticipate therefore t h a t m u c h t h a t is recorded here may
shortly prove to be of historical interest only.
At first sight perhaps it would seem that the workers' trade
unions would enjoy a greater freedom if no special law existed,
for as a matter of fact a large n u m b e r of trade unions have already
come into being, acquiring an increasing amount of social, economic
and even political influence, under the protection of no special law.
T h e y have grown and come into power under the sole guarantee of
Article 29 of the Constitution which formally grants the freedom
of association to all Japanese subjects. Moreover, Japan has never
had any special prohibitive law which, as has been the case in many
Western countries, expressly condemned the !' formation " of trade
unions, although as regards the " free exercise of the rights of trade
unions " Japan has not been entirely free from criticism, and this
is indeed another important fact which must be pointed out at this
stage.
In connection with this last point we may recall the statement
of Mr. Bunji Suzuki, made at the 1924 Session of the International
Labour Conference. H e said :
N'ot very seldom the Japanese Government hinders the development
of labour organisations and discourages workers from forming unions
by either dissolving their unions or by putting them under a reformed
stafF, in which case such unions lack the necessary spirit of freedom and
43 2
FREEDOM OF ASSOCIATION
self-control. The Government also looks favourably upon unions which
are organised or supervised by the capitalists. Freedom of speech and
assembly is very often rendered impossible for no other reason than the
blind zeal of unintelligent policemen who try to please their superiors.
I n support of this affirmation, Mr. Suzuki cited numerous cases
of p u n i s h m e n t under various legislative Acts, referring at the same
time to an incident which he called " a n eloquent proof of the
endangered condition of the Japanese workers ". T h e statement of
the Japanese workers' delegate was categorically denied by Mr.
T a m o n Mayeda, the Government delegate, who said t h a t it was
" unfair to judge the attitude of the Japanese Government with the
freedom of association of workers by fortuitous incidents of a
special n a t u r e ". T h e counter-declaration of the Government delegate
contained further the following words :
All the references made by the Workers' delegate are due to lack
of information and knowledge of the facts.
The workers' freedom of
association is guaranteed by the Japanese Constitution and there is no
regulation in the country restricting such freedom l.
Bearing on the same point, it is recorded that in 1919, when
t h e question of the freedom of association became the subject of a
heated controversy in this country, Mr. K a w a m u r a , the Chief of
the Police Bureau of the Japanese Government, declared :
The establishment of trade unions is entirely
exists in Japan which prohibits it.
free, because no law
T h u s the legality of the formation of trade unions has never
in itself been a vital question, while apparently the difficulty has
been in t h e full or unhampered exercise of the rights pertaining to
trade unions which already exist, and it is obviously in the l a t t e r .
aspect t h a t t h e problem presents itself to us. But, here again, it is
necessary to point out that Japan is passing through a period of
rapid transition when the old obstacles are being removed gradually
one after another. A certain Japanese scholar 2 has remarked in this
connection that the attitude of the State towards workers' unions
passes as a rule through three stages or periods of development,
1
Cf. Proceedings of the International Labour Conference, Sixth Session, Vol. II, pp. 540-543. Geneva, 1924.
2
T. YAMANAKA : Rodò Kumiai Haan Kenkyu (Study of Trade Union
Bills), p. 22 (in Japanese).
JAPAN
433
namely, ( i ) the period of categorical suppression, (2) the period
of formal recognition, and (3) the period of substantial (or real)
recognition, and Japan is now in the second period of formal
recognition without having gone through the first period of
categorical suppression.
T h e difficulties which have confronted the freedom of
association heretofore * fall into three kinds, of which the first a n d
second may be called " legal " and the third " practical ". T o be
more precise, the first series of difficulties have come from the fact
that there existed certain laws and regulations which, as has been
pointed o u t by a number of scholars, trade union leaders, etc.,
restricted the free exercise of the trade union rights despite the
right of association, formally guaranteed by the constitution. T h e
second series of difficulties, though never so serious as the first,
have been due to the fact that trade unions possess no civil
personality, and the third, of a more considerable importance t h a n
others, have been due to the opposition of employers. T h e last
mentioned kind of difficulties m a y also be considered as " legal "
only in a negative sense, because those difficulties are examined
under this heading only in so far as they are due to the non-existence
of any special law which definitely establishes the legal status and
rights of trade unions. I n the following pages an attempt will be
made to analyse briefly the nature of these various difficulties.
E X A M I N A T I O N OF L E G A L
LIMITS
Something which a m o u n t s t o a summary statement of the legal
obstacles or difficulties, in the way of the free exercise of trade
union rights, is found in two resolutions of the Japanese Associations
for International Labour Legislation a . T h e resolutions were placed
1
This word is employed advisedly, because of the rapid transition
of events which is taking place at present, as described in the following
pages in detail.
2
Kokusai R0dù Kyokai (literally " International Labour Association ") founded in March 1925, with Mr. Z. Asari as the principal Secretary
and Dr. I. Takano as the chairman of the Executive Council. It consists
of Government officials in charge of labour matters, influential employers
and powerful labour leaders. For particulars, see INTERNATIONAL' LABOUR
OFFICE : Industrial Conditions and Labour Legislation in Japan, Studies
freedom of Association
28
434
FREEDOM OF ASSOCIATION
before it by a special sub-commission of experts, after serious study,
and were formally adopted by a two-thirds majority vote of
members at the first general meeting of the association on 8 November
1925. T h e important passages of the resolutions in question are as
follows :
RESOLUTION ON T H E RELATION BETWEEN T H E FREEDOM OF
ASSOCIATION AND T H E PEACE TREATY
. . . "While hitherto a number of laws which 110 longer suit the conditions of the day have existed and placed serious obstacles in the way of
workers' organised movements, now in addition a grave menace has been
superimposed upon the associations of workers by the new enactment
of the Public Peace Maintenance Act.
This must be regarded clearly as a contravention of the spirit of the
Peace Treaty.
This association expresses hereby the wish that the Government shall
speedily amend or repeal the above mentioned laws and conform to the
general lines laid down in the Labour Chapter of the Peace Treaty.
RESOLUTION CONCERNING T H E REMOVAL OF OBSTACLES TO THE
ASSOCIATIONS OF W O R K E R S IN T H E EXISTING LAWS
The provisions contained in the existing Criminal Law and Police
Ordinance which bring pressure to bear upon the organised movement
of the workers and threaten their freedom of association are by no means
few in number. The provisions in the Criminal Law relating to seditious crimes, Article 17 of the Public Peace Police Act, and the provisions
of the same Act concerning the holding of meetings, together with the
provision concerning restriction in the Administrative Execution Act,
the Ordinance for the Punishment of Contravention of Police Orders, and
Police Offence Summary Judgment Ordinance, have all frequently been
applied to obstruct the activities of trade unions in connection with the
holding of their general meetings, lectures and demonstrations in connection with labour disputes.
Moreover, there exist various provisions which suppress organised
movements of the workers and of the tenant farmers in various Prefectural
Ordinances of Gifu, Saitaina, Kagawa, Kumamoto, Miye, Fukuoka, Saga,
Okayama, and Gumma.
Therefore, even if a Trade Union Act and a Tenant Farmers'Union Act
be enacted and Article 17 of the Public Peace Police Act be repealed, so
long as these provisions of the Criminal Law and Police Ordinance continue to exist and to be applied freely as at present, the workers and
tenant farmers will still be unable to enjoy fully the freedom of association..
If the Government really intends to recognise the freedom of association, it should promptly amend or repeal completely all those provisions
which suppress the workers' and tenant farmers' organisations or any
organised movement on their part and should take proper measures to
prevent any abuse of these laws which might cause the suppression of
such organisations or their organised movements.
and Reports, Series B, No. 16, pp. 110-112. The Association was
reorganised in September 1929 and it is now known as the Association for
Social Legislation.
435
JAPAN
Our task is to examine first of all t h e nature and content of
the various laws which are enumerated in the Resolutions.
The Public
Peace Police
Act
A m o n g the various laws cited in these two Resolutions, by far
the most serious difficulty, which was disputed with much bitterness
for a quarter of a century, was the restriction of freedom imposed
by Articles 17 and 30 of the Public Peace Police Act
(Chian
Keisatsu Ho) of 1900. Although the Government have declared
repeatedly that the object of the law was the maintenance of peace
and order and it did not intend to suppress the strike itself, vigorous
protests against this law were unceasingly raised in the country
by trade unions and often also outside the country by the workers'
delegates of Japan at various Sessions of the International Labour
Conference. F o r example, Mr. Masumato, the Workers' Delegate
of Japan a t the Washington Conference of 1919, criticised the Act
as a " weapon to prevent the organisation of trade unions " and
declared further :
All intelligent classes in Japan now regard this as one of the worst
laws of the country. Even some of our capitalists feel that it should be
abolished and that labour should be allowed freely to organise '.
Mr. Bunji Suzuki, the W o r k e r s ' Delegate at the 1924 Conference
in Geneva, also issued a statement condemning this law as one of
the " limitations of personal freedom ".
T h e t e x t of the most disputed parts of this Act, namely, Articles
17 and 30, is as follows :
Article if. Neither violence, nor intimidation, nor slander in public
with any of the following objects shall be committed against others, nor
shall instigation or incitement be committed against others with the
objects referred to in (ii) below :
(i) To make others join or prevent them from joining associations
formed for the purpose of combined action concerning the conditions of or the remuneration for work.
(ii) To make employers discharge workers or refuse application for
employment or to make workers stop their work or refuse a
request for employment as workers, with the object of concerted
discharge of workers or of strike.
(iii) To coerce the other party to consent to given conditions of or
remuneration for work.
Neither violence nor intimidation nor slander in public shall be
1
Cf. Proceedings of the International Labour Conference, First Session, Washington, 1919, p. 160 ; and Sixth Session, Geneva, 1924, p. 541,
etc.
43<>
FREEDOM OF ASSOCIATION
committed against other parties in order to coerce them to consent to
rent conditions of land for cultivation.
Article 30. Those who contravene the provisions of Article 17 shall
be liable to an imprisonment with hard labour for more than a month
but less than six months, and in addition a fine of more than three yen
but less than thirty yen. This shall apply equally to those who commit
violence or intimidation or slander in public against an employer who
does not join in a concerted discharge of workers or a worker who does
not join in a strike.
These Articles have been definitely abolished as from 1 July
1926 — a memorable date, on which, besides t h e repeal of these
Articles, a large number of important labour laws were simultaneously
b r o u g h t into operation, t h u s m a r k i n g a new epoch in the history
of Japanese labour legislation 1 .
Nevertheless, we cannot afford to overlook a n important fact
w h i c h one of the above-cited resolutions suggests. Attention m u s t
be called here to the point that the repeal of Articles 17 of the
Public Peace Police Act does not free it from criticism. F o r example,
Article 8 of the Act provides that " in order to maintain peace a n d
order, police officers m a y hold in check, prohibit or dissolve an
out-door meeting, a mass movement or a crowd of people, or dissolve
an indoor meeting ". Because of this provision, it is complained,
the effective means of publicity of the union, such as parades and
mass meetings are liable to be strictly controlled.
Article 9 of the A c t prohibits also lectures a n d discussions in
meetings which would " incite or conceal crimes, or praise or give
relief to criminals or defendants in criminal cases ". H e r e again, it
is claimed that by such a provision, anyone venturing to express a
n a t u r a l sympathy to a victimised trade union worker in prison is
incriminated, and such a case did actually take place in 1921 at the
time of the Convention of the General Federation of Japanese
L a b o u r 2 . F u r t h e r , the Act contains a provision in Article 14,
1
Cf. International Labour Review, Dec. 1926, p. 861.
Although these Articles are thus no longer in force, considerable
historical interest still attaches to them on account of the conspicuous
importance they have had on the life of trade unionism in Japan.
2
Cf. G. SuYEHiRO : Rodo Ho Kenkyu (The Study of Labour Laws),
pp. 70-71. (The Verdicts of the Supreme Court, Vol. I, No. g, Criminal
cases, pp. 519 et seq. At the annual meeting of the General Federation
of Japanese Labour in 1921, Mr. Bunji Suzuki, president, and Mr. Komakichi Matsuoka, executive secretary, read a letter of thanks addressed
to the fellow members of the organisation who had been imprisoned on
account of a strike. Punishment was inflicted on these officers for this
act.)
JAPAN
437
making it illegal to form a secret association. It is pointed out here
that when there is any persecution or oppression, the trade union
will naturally tend to conceal its existence. Since there is no law
requiring either a report or registration of the formation of a new
union, the union will take no steps to publish its existence other
than by an overt action. Thus the provisions of this Article " can
easily be-violated ", while the contravention of this Article is
punishable by imprisonment of from six to twelve months, and thus
it is considered as " an unjust intimidation to the organisation and
activity of trade unions " \
The Criminal Law
Among the various crimes provided for in the Criminal Law
(Keihô, Act. No. 45 of 1907) such as the crimes of sedition, violence,
intimidation, obstruction of public or private business, and the like
(cf. Criminal Law, Articles 95, 106-107, 208, 222-223, 234), the
case of seditious crimes (Sojo Zai) requires a special attention.
During the ten-year period ending in October 1925, there were
out of 430 criminal cases no less than 52 seditious crimes involving
1,980 persons, and 26 cases conbining other crimes with sedition,
involving 886 persons. This means that seditious crimes accounted
for almost 20 per cent., while the number of persons involved was
more than half of the total offences.
It is indisputable that such crimes as sedition, violence, intimidation, obstruction of business, etc., must under no circumstances
be committed by any person, and it is also clear that those provisions
of the Criminal Law are not directed against trade unionism.
Nevertheless, it is pointed out by a number of scholars who have
made a specia1 study of the problems of trade union legislation in
Japan that they constitute a menace to trade unionism because the
collective action of workers is liable to be interpreted as intimidation,
obstruction of business, etc. They argue that as long as the employer
refuses to recognise and negotiate with the representative of a trade
union, and as long as he can with impunity discharge a worker for
having joined a trade union, the latter is in a helpless and
disheartening situation. Thus, they question whether it is judicious
or right to class the worker with ordinary criminals, when he, in
desperation, commits one of these crimes 2 .
1
2
Ibid., pp. 72-73
Cf. A. YAMAXAKA, op. cit., pp. 25-26.
438
FREEDOM OF ASSOCIATION
Other Laws and Ordinances
We have in the next place to examine briefly the general nature
of the Ordinance for the Punishment of Contravention of Police
Orders, the Police Offence Summary Judgment Ordinance, the
restriction clauses in the Administrative Execution Act, etc.
I*et us take, for example, the Ordinance for the Punishment of
Contravention of Police Orders (Keisatsu Han Shobatsu Rei,
Ordinance of the Department of the Interior No. 41 of 1908). It
contains clauses for the punishment of " those who have violently
demanded an interview without cause, or made peremptory demands
or committed intimidation" (Article 1, clause 4), and the punishment also of " those who have obstructed or done mischief to the
business of other people" (Article 2, clause 5). It is contended
that because of these punitive provisions the workers' demand for
collective bargaining with any employer who intends to disregard
or slight their trade union ends often in a futile result. The criticism
has also been made that the representative of the trade union who
demands an interview with the employer is liable to be treated as
" he who stands in the way of or pursues others without due cause "
(Article 2, clause 31) and to be punished by a detention up to 30
days or by a fine running up to 20 yen. It is contended further,
that in this clause lies the greatest danger of making it impossible
at the same time to carry out picketing, which is essential from the
workers' point of view in maintaining their solidarity in the case of
a strike.
Among other provisions enumerated as frequently obstructing
trade union action in a way similar to that covered by the above
described clauses we may examine some of the Police Orders of
Prefectures (Fu-Ken Keisatsu Meirei). They punish such practices
of workers' or tenant farmers' unions as : (1) instigation or decision
of a school-strike of children ; (2) instigation or decision of nonpayment of taxes ; (3) coercing other people to join a union or
refusing without due cause to withdraw from it ; (4) violently
demanding others to return rented land, or obstructing the sale,
exchange, renting, etc., of land ; (5) ringing fire bells, beating
drums, etc., at the time of dispute ; (6) demanding an interview
by knocking at the door after midnight ; (7) obstructing other
people's business or meddling in or inciting a dispute without due
cause ; (8) inciting or going in large numbers for negotiation
concerning a dispute ; (o) stopping or causing others to stop social
JAPAN
439
intercourse on such occasions as marriage, funeral, festivals, etc.,
which are observed locally as a custom. These are practised rather
often by workers and tenant farmers in rural districts, so that the
Police Orders which prohibit them have been applied to a number
of offenders.
Reference to the Police Orders, as obstacles in the way of free
trade union action, has been made not only in the above quoted
Resolution of the Japanese Association for International Labour
Legislation, but by a number of authoritative scholars, trade unions
and individuals. However, for our present purpose it will not be
necessary to go further into details by examining the actual extent
to which Japanese trade unionism suffers from the application of
these provisions. Already it seems that an official announcement
has been made to the effect that " all the local Police Orders shall
be amended or repealed in so far as they tend to suppress trade union
action in the same way as Articles 17 and 30 of the Public Peace
Police Act ". The taking of necessary steps for their modification
commenced when the articles in question in the Police Act were
definitely abolished on 1 Juli 1926 l .
More Recent
Legislation
In concluding the enumeration of laws which are alleged to
restrict the freedom of trade unions, a passing mention must be
made of three new laws the enactment of which was made the subject
of heated controversy and seriously objected to by trade unions.
The laws in question are : (i) the Public Peace Maintenance Act
(Chian Iji Ho) of 1925 ; (ii) the Act respecting the Punishment of
Violent Conduct (Bôryoku Koi-to-Shobatsu Ho) 2 ; and (iii) the
Labour Disputes Conciliation Act (Rodo Sogi Chotei Ho) '.
The Public Peace Maintenance Act. — This Act (Act No. 46
of 1925) was condemned before its enactment by the working class
as one of the " Three Pernicious Bills " (San Daiaku Ho-an) * which
restricts the freedom of trade unions, but prior to its final adoption
by the Diet, the form of the Bill was modified in such a way that,
1
Cf. G. SuYEHiRO, op. cit., pp. 68, 87.
- See Chapter I, Article 6.
Cf. Legislative Series, 1926, Jap. 3.
4
The three Bills in question were : The Public Peace Maintenance Bill,
the Trade Union Bill, and the Labour Disputes Conciliation Bill.
3
44°
FREEDOM OF ASSOCIATION
judged from the t e x i , the law apparently could not be applied to
ordinary trade union movement. Article i, clause i, of the Act
reads * :
Those who have formed an association with the object either of
transforming 2 Kokutai3
(or Seitai)4, or of denying the institution of
private property 5 , or have joined it knowing the circumstances, shall be
punished by imprisonment for not more than io years, with or without
hard labour.
T h e Act further penalises attempts to commit the offence defined
in Article i , clause i : consultation or instigation with the object
defined in the same ; the instigation of seditious acts, violence or
other offences injurious to life, limb or property ; and the giving or
receiving or promising of money, goods or other payment with that
object. Finally, it is provided t h a t the Act shall apply to the offences
defined, when committed, beyond the spheres where the Act is
enforceable, and also that if a n offender against the Act surrenders
himself and confesses his guilt the penalty may be mitigated.
A s regards the application of this Act, Mr. Bunji Suzuki, the
W o r k e r s ' delegate at the 1925 Session of the International Labour
Conference, stated on 28 M a y , referring to the question of the right
of association in Japan, t h a t this legislation was " enacted to punish
those who denied the validity of private property and tried to
overthrow the foundation of the national Constitution ; b u t one
1
After this, the Article was revised by an Urgent Imperial Order in
1928 so as to include the death penalty against the organisers of
revolutionary movement.
2
" Transforming " — Henkaku Suru in the Japanese text — means
bringing about a radical change, e.g. by revolutionary means.
3
Kokutai cannot be translated exactly. The Minister of Justice
explained on 17 March 1925 in the House of Representatives that " it refers
to the present Kokutai, of being reigned over and governed by the line
of Emperors unbroken for ages eternal ". From this it would appear that
the term roughly signifies the " Imperial Sovereignty ".
4
The original text proposed by the Government contained here the
words Matawa Seitai after Kokutai.
The phrase would literally mean
" or the form of Government " but this was explained also by the Minister
of Justice to mean the " parliamentary form of government " (Gikai
Seiji). The House of Representatives amended the text to suppress this
part and the House of Peers approved the amended text.
5
In the original, Shiyn Zaisan Seido wo Hiuin-suru.
This was
explained elsewhere by the Minister to mean the denial of the right of
private ownership of property, so that the Act would not penalise, for
instance, the proposal to transfer a part of the privately owned means of
production to public management and 'ownership, which is in conformity
with the recognition of the right of private property.
JAPAN
441
result of its application will be to prevent the development of the
organised labour movement ". I n reply to this, Mr. T a m o n Mayeda,
the Government delegate, affirmed that the Act had " nothing to
do with the freedom of association ".
It simply deals (he continued) with anarchist or communistic intrigues
intended to undermine the foundations of the national existence. The
text of the Act strictly defines such cases and there is no danger of abuse
being made of it '.
The Act respecting the Punishment
of Violent Conduct. — T h i s
law (Act. N o . 60 of 1926) penalises violent acts which are committed
" by the demonstration of the power of either an actual or feigned
organisation or mass, by the display of arms or by the common
action of several persons. . . . "
(Article 1, clause 1 ) . T h e
violent acts covered by this law refer to acts not resulting in actual
injury ; threats of injury to life, limbs, personal freedom, honour
or property ; destruction of or causing damage to certain objects
belonging to other persons. T h e offender is liable to imprisonment
for less than three years or to a fine of less than five h u n d r e d y e n .
Peremptory demands, intimidation, etc., committed for the object
of unjustly obtaining material benefits by the methods defined under
Article i , clause 1, are also punishable by this Act. T h e law
facilitates the p u n i s h m e n t of violence without waiting for a
" personal complaint ".
While there is no question as to the justification of any law
which aims at the suppression of violence, trade unionists of t h e
country strongly opposed the enactment of this law, and the strong
opinion has been expressed that " there is a high degree of
apprehension that this law may become the law for the control of
the organised movement of trade unions " 2 . However, before t h e
Bill was presented to the Diet, the Japanese press reported to the
effect that the Department of Justice had decided not to include t h e
trade union action within the scope of this law 3 . F u r t h e r m o r e , the
Minister of Justice declared in the H o u s e of Representatives on
iS March 1926 that " the Government do not intend in the least
1
Cf. Industrial and Labour Information, Vol. XLV, pp. 374, 455.
Also Proceedings of the International Labour Conference, Seventh Session, Geneva, 1925, pp. 101 and 109.
- A. YAMANARA, op. cit.,
3
E.g. Asahi, 7 Feb. 1926.
p.
27.
442
FREEDOM OF ASSOCIATION
to control, by this law, the trade union movement, the tenant farmers'
movement, and the like " \
The Labour Disputes Conciliation
Act. — T h i s (Act No. 57
of 1926) is another of the laws the enactment of which was seriously
objected to by workers, including it among the " T h r e e Pernicious
Bills " which restrict the freedom of trade unions. Since the origin,
content and merits of this legislation have already been amply
explained in a publication of the International Labour Office 2 , we
m a y limit discussion to the question : H o w does this law affect the
exercise of the workers' rights of association ?
T h e r e were many reasons offered for the rejection of the law
prior to its enactment, b u t the principal objection was that the law
imposes a n obligatory conciliation procedure. According to Article
1, clause 1, of this Act, the administrative authority may set u p a
conciliation board upon the request (or even without the request
if deemed necessary) of any of the parties concerned, when a labour
dispute occurs in a n u n d e r t a k i n g , defined in the clause, which
affects " public welfare ". F u r t h e r , Article 19 lays down that
pending the completion of conciliation procedure from the time that
the official notification ordering the setting u p of the board is
received, so long as the dispute has occurred in any " public
welfare " undertaking as defined in Article 1, clause 1, the following
restrictions shall be enforced :
. . . Persons other than the employers and workers who are
actually connected with the dispute and officers or clerks of the employers'
or workers' organisations to which they belong shall not instigate or incite
either the employers or the workers connected with the dispute until
the conclusion of the conciliation procedure for any of the purposes
enumerated below : (i) to cause the employer to close down the workplace, to stop the work, terminate the employment of workers or refuse
a request for the continuation of labour, in connection with the labour
dispute, (ii) to cause a body of workers to stop work, impede the progress
of work, terminate their employment or refuse a request for their continuation in employment in connection with the labour dispute.
A person who has contravened these provisions is punished
either by a fine not exceeding 200 yen or by imprisonment not
exceeding 3 months (Article 22).
1
Kanpo (Official Gazette, Extra number of 19 March 1926), Minutes
of the House of Representatives, p. 870 (in Japanese).
2
Cf. International Labour Review, Feb. 1927, Vol. XV, No. 2, pp.
257-271.
JAPAN
44 3
Whether or not this law really encroaches upon the rights of
workers' associations is a question which is disputable. During the
period that it has been in operation (since i July 1926) experience
has not shown that it does.
However, we may point out that a strong opposition to the
legislation was raised in the earlier stage of the drafting of the Bill,
when the draft text contained ambiguous phrases, proposing for
instance to prohibit " any third person from instigating or inciting
workers to carry out a strike " during the compulsory period of
arbitration and conciliation. If the " third person " meant, as was
feared then, a union officer who is not himself in the employ of an
establishment where the dispute has occurred, the proposed legislation
would seriously restrict the action of the union interested in the
dispute. Thus there was a strong apprehension before the adoption
of the final text that the above-mentioned clause might be used to
suppress the strike itself. The Resolution of the Eastern Federation
of Trade Unions affiliated to the General Federation of Japanese
Labour asserted that the Government was " going to injure the
cause of the workers in labour disputes and to smash into pieces
workers' legitimate demands " x. On the other hand, however, we
should note that the Prime Minister confirmed in his speech in
Parliament that " no pressure will (by this legisation) be exerted
against strikes " z , and also made in this connection the significant
statement that : " the attempt of the workers to carry through their
claims by means of strikes is not a matter to be suppressed" 3 .
Moreover, so eminent an authority on labour legislation in Japan
as Professor Suyehiro has welcomed this law with enthusiasm,
censuring the workers who have opposed its enactment. He pointed
out that industrial workers are in a different situation from
agricultural tenants. While the latter (the tenants) might prefer
to prolong a dispute and not to submit it to a compulsory conciliation
because they hold the land and can bring the landowner to terms
by prolonging the dispute, the former (the industrial workers) only
suffer by a long continued strike, and an indefinitely prolonged
dispute is ipso facto a victory for the employer. " Therefore ", says
he, " so long as workers' unions are not more developed than they
:
2
Resolution adopted by the Federation on ai January, 1925.
Cf. Industrial and Labottr Information, Vol. XVIII, pp. 108-111.
"- Shûgi-In Cijiroku (Minutes of the House of Representatives), No. 14
of 1926, p. 365 (in Japanese).
FREEDOM OF ASSOCIATION
444
are at present, compulsory conciliation will not necessarily put the
worker at a disadvantage, not only in public-welfare enterprises but
in all general enterprises ". Continuing the argument, he has shown
that legislation of this sort is in fact a step in the direction of
eradicating the employers' habit of refusing to enter into collective
bargaining — which has been one of the great evils confronting the
workers' unions 1.
Finally, as regards this law, we may recall that the importance
of its enactment was enhanced and made particularly significant
from the point of view of workers' freedom by the simultaneous
repeal of Articles 17 and 30 of the Public Peace Police Act. The
two laws were acted upon from the beginning, one in conjunction
with the other, as being inseparable or " combined-legislation " and
with reference to this, Professor Suyehiro has said :
Now at last we leave behind the age in which labour disputes have
been indiscriminately condemned. We enter upon a new epoch in which
freedom in dispute is established as a matter of principle on behalf of
the workers 2.
CONSEQUENCES OF THE LACK OF LEGAL PERSONALITY
We nave stated previously that there exists in Japan no special
law as yet which confers a definite legal status upon the workers'
trade unions. This gives rise to a question in Japanese jurisprudence,
namely : Which part of the existing legal provisions applies to them
generally ?
The existing legislation does not grant a legal personality to
workers' trade unions. Consequently, as in the case of the employers'
associations which are without a legal personality, it has frequently
been claimed that they should be subject to the parts in the Civil
Code relating to " partnerships ". It is unnecessary to reproduce
here at length the legal arguments to prove either the validity or
fallacy of such a facile interpretation. We need only to outline the
argument on the other side that most trade unions are formed with
a definite name, definite objects and definite constitution like the
associations with a legal personality, and the organisation of a trade
1
2
G. S U Y E H I R O , op.
cit.,
p p . 102-103.
For particulars, see International Labour Review, Feb. 1927, pp.
257-271.
JAPAN
445
union cannot result exactly in a contractual relation 1 among members
a s in the case of a partnership.
" Logically speaking ", so the
a r g u m e n t r u n s , " there exists to begin with an abstract organisation
formed for a definite object or objects, in which individual members
join or from which they withdraw. It is of course true that at the
time of inauguration of the union, the founders draft and mutually
agree upon the adoption of a constitution, but such an agreement
does not create ipso facto a mutual relation of obligation 2 a m o n ¿
the individual members. I n point of fact a trade union thus created,
having a fixed n a m e , fixed objects and fixed constitution, is quite
similar to incorporated associations or companies which are organised
either for profit-making or for charity, arts, crafts or other objects
of public benefit, and has thus a shadan-teki
organisation3.
Therefore, even though the formation of the union and the joining
of members m a y coincide, the formation of the union does not bind
the members in relation of obligation among the members ". T h u s ,
according to the opinion of certain scholars 4 , a workers' trade union
should be regarded as an " association (or corporation) without a
legal personality " 5 , and it should not be confused with a
" partnership ".
(The reader might usefully refer to the part of
the present report where the legal characteristics of a partnership
are outlined in order to appraise the validity of this argument.)
W i t h o u t going further into this question in jurisprudence, on
which opinions may differ, we have to examine the consequences
of the actual fact t h a t workers' trade unions are granted no legal
personality.
F i r s t of all a workers' union cannot own property or exercise
private rights in the name of the union. Even if it owns land,
buildings, etc., in fact, it cannot register the ownership in the n a m e
of the union whereas for economic reasons it is necessary that t h e
organisation should possess property of its own, apart from that of
its members, and it does actually own its property ' . T h i s formal
1
Contractual relation = " Keiyaku Kankei ".
Relation of obligation = " Saimn kankei ".
' Shadan-teki = corporation-like.
2
d
E.g.
G. SUYEHIRO, op. cit.,
pp. 116-118.
s " Jinkaku-naki Shadan " or " Verein ohne Rechtsfähigkeit
".
6
If a union wishes to acquire a right that can be done only in the
name of the president, treasurer or some other officer. In such cases.the
446
FREEDOM OF ASSOCIATION
or legal incapacity of the trade union to become the subject of r i g h t s
is considered to be decidedly inconvenient for the union.
The
inconvenience may not assume any serious dimensions for the time being
as long as workers' unions are insignificant in size, but the handicap
is expected to become exceedingly great in future, in proportion to
the growth of trade unionism in this country.
Under the present situation, the property of the union must be
owned legally in the name of its president or some other individual
and as frequently happens in respect of certain kinds of property,
especially the movable property which may clearly belong to the
union, the legal ownership of it is not at all certain. I n the case of
property owned in the name of t h e president, the relation between
him and the union is only " moral " and not a legal relation of
" trust " ', so that there is no legal protection of the union property
against a third party. T h e property of the union may be endangered
but the union is legally incapable of bringing a lawsuit. I n other
words, when the creditor of either the president or any other officer
of the union, in whose name certain property of the union is owned,
proceeds to seize the property in question for the unpaid debt, the
union cannot legally object to the execution. On the other hand, the
creditor is in a position to bring an action against the representative of
the union, either recognising or denying as h e pleases, the moral " trustrelation " existing between the union a n d its representative in whose
n a m e the property is owned. T h i s can take place because as a matter
of fact whatever the representative executes, be it a legal or illegal
act, will affect the union. If, for example, he acquires a right on
behalf of the union as its representative, even if the law does not
recognise it, the right will, in point of fact become the right of the
union and benefit it rather than the individual, and similarly an
obligation contracted by the representative will become the obligation
of the union. T h u s the creditor may either bring an action against
the representative of a union in a manner utterly disadvantageous
to the union, if he chooses to recognise the property of the union.
as something left in trust with the representative, or proceed to
representative of the union in whose name the right is acquired will
retain the right as the " trustee " of the union. If this procedure were
in accordance with the Trust Act (Shintaku Ho, Act No. 62 of 1922) the
legal protection might be granted in the relation with a third party.
However, the actual situation is more complicated.
1
Trust = " Shintaku ".
JAPAN
447
seize the property in question if he chooses not to recognise the
trust-relation. T h u s the situation is precarious for both the union
and its representative so long as the property of the union cannot
exist apart from the property of individuals and the representative
of the union can be held responsible in such a m a n n e r as described
above \
I n short it would appear that the difficulty cannot be removed,
unless the law either grants legal personality to workers' unions
or recognises legally the trusteeship of the union representative in
the disposal of the union property ; and no doubt it was precisely,
or partly at least, to remove such a difficulty and to enable workers'
trade unions to acquire and exercise the private rights in law t h a t t h e
T r a d e U n i o n Bill presented by the Government to the Diet proposes
to grant a legal personality to trade unions. T h i s point will b e
dealt with more at length later under the " T r a d e Union Bill ".
T H E ATTITUDE OF EMPLOYERS
T h e t h i r d series of difficulties have come so far from t h e
employers' side. T h e employer has been able among other things :
(a) to refuse to engage in collective bargaining, (b) to refuse to
employ a n y member of a trade union a n d to discharge a worker on
account of his membership of a trade union, and (c) to demand
compensation for damage caused by a trade union by strike, etc.
W h a t these imply, and how they affect Japanese trade unionism,
will be briefly explained below.
T h e basic principle of Japanese labour legislation has been
" freedom of contract ". T h e employer, therefore, has up to the
1
The understanding of the true legal position of the trade union is
rendered particularly difíicult by certain judicial precedents. Whether
or not a trade union can be a part} 7 to a lawsuit is not quite certain. The
Supreme Court on 19 April 1917 decided on the non-recognition of a lawsuit raised in the name of a Standing Rules Trade Association (Junsoku
Dogyo Kumiai) which had no legal personality, but a decision taken b y
it on 3 October 1895 regarding the Lawyers' Association (Bengoshi Kai)
which possessed no legal personalit\- was contrary. Also on 26 May 1915
the Supreme Court came to a similar decision in respect of the Medical
Doctors' Association (Ishi Kai), which had as yet no legal personality,
recognising that the " President of the Association may, acting upon his
competence, represent the Medical Doctors' Association as its President
and judicially execute the business of the association outside the Court ".
In the face of these precedents it is difficult to say how the Court
would decide when a trade union raises a lawsuit.
448
FREEDOM OF ASSOCIATION
present been bound by no law t o treat with workers or to enter
into a contract with them against his will. I n other words he was
free to decline a demand for collective bargaining. W e have shown
previously, in connection with " legal obstacles " to freedom of
association, that " any person w h o stands in the w a y of or
pursues others without due cause " can be proceeded against. I t
would appear that a trade union is helpless in such a situation.
{Furthermore, according to the Civil Law, w h e n there is " an
unavoidable cause " either party to a contract of service m a y rescind
i t " a t a n y time even if t h e term of the contract has been fixed
definitely " (Civil Code, Article 628). Obviously this provision is
inspired by the principles of freedom of contract, which presupposes,
" equality " of the parties to the contract. However, it is pointed
o u t t h a t in practice, this legal provision is prejudicial t o trade union
workers because the employer is able to rescind the employment
contract and discharge workers with impunity at any time under
the pretext of an " unavoidable cause " when the worker is engaged
in trade union activities, while the perennial question of livelihood,
without a n y reserve to depend upon, would disable a n y ordinary
worker from exercising the same right of immediate termination
of the employment contract.
I n t h e past, the Japanese employer could make it a condition
of employment that a worker should not join any trade union and
the employer could discharge a worker whenever the latter made
himself conspicuous in trade union activities. Lastly, also, the
employer could, if he wished (though this h a s never occurred),
demand from the trade union compensation for damage caused by
a strike and t h u s financially ruin the trade union. A n eminent
authority on labour questions in Japan has said in this connection :
As yet the capitalists of Japan do not generally employ this weapon
(i.e. compensation for damage), the reason being simply that as long as
the period of punishment lasts, the State conducts the disciplinary measures publicly on their behalf so that the capitalists need not take the
trouble of applying those measures privately *.
1
G. SUYEHIRO, op. cit., p. i n . The major part of his book was
written before the repeal of Articles 17 and 30 of the Police Act and the
enactment of the Conciliation Act, and thus the author took the view
then that Japan was still in the "period of punishment " (pp. 64-94),
but we have shown previously that another writer, Mr. Yamanaka, takes
JAPAN
449
I t is evident that all these measures are capable of being a
formidable menace to trade unionism if they are applied relentlessly
and if they remain unchecked. But, here again, we should reiterate
the fact that a rapid transition is taking place in Japan at the present
time.
First of all, as regards collective bargaining, the draft of the
T r a d e Union Bill which was prepared by the Bureau of Social
Affairs of the Japanese Government contained a section (section 12)
, providing that " a labour agreement concerning working conditions
made collectively between the trade union and the employer or
employers' association cannot be broken by an agreement concluded
by individual bargaining between the employer and the members
of the union ". I t was laid down further that " such an agreement
is valid only in those parts of it which do not violate the collective
agreement of the union ". A l t h o u g h there was nothing specially
provided in the draft to oblige the employer to enter into collective
bargaining 1, it would seem clear that in the mind of the legislator
this was a matter which had better be left out. I t would suffice
to give priority to collective bargaining by law and the rest would
follow when the trade unions grew in power. Unfortunately this
section was deleted from the final draft of the Trade Union Bill
presented to the Diet at the 1925-1926 sessions, but it was reported
subsequently that the Bureau of Social Affairs was preparing a
separate measure dealing with collective agreements alone, with the
intention of presenting to the Diet a Bill on the subject, quite apart
from the Trade Union Bill 2 .
Secondly, as to the question of the employers' refusal to employ
a worker belonging to a trade union or t h e employers' ability to discharge him on account of his membership of a union, the same draft
of the T r a d e Union Bill prepared by the Bureau of Social Affairs
contained another section (Article 11) providing that " the employer
or his agent shall not discharge the worker on account of the latter's
membership of a trade union, nor can he make the withdrawal of
the worker from, or his non-affiliation to, a union a condition of
the view that Japan has entered the stage of " formal recognition " of the
trade union liberty without passing through a period of categorical repression.
1
We have shown above that the Labour Disputes Conciliation Act
is a step towards the legal obligation to enter into collective bargaining.
2
Cf. Industrial and Labour Information, Vol. XX, p. 46S ; Chuo
Shinbttn of 15 October 1926.
Freedom of Association
450
FREEDOM OF ASSOCIATION
employment ". T h e wording of this Article underwent a modification
before the Bill was presented to the 1925-1926 Session of the Diet.
T h e definitive text of the Bill was worded as follows :
Article 14. The employer's expression of his will to discharge a
worker on account of the membership of the latter in a trade union shall
be invalid. The same rule shall apply to any Article in an employment
contract agreeing not to join a trade union or to withdraw from it.
However, since the above-mentioned Bill has been shelved
by t h e Diet, so far as national legislation is concerned the situation
remains " in suspense " until the Diet settles the question definitely.
Nevertheless, according to Kokumin of 24 January 1927, it seems
that practical steps have been taken by the Bureau of Social Affairs
to improve the situation in a more expedient manner without recourse to national legislation. I n order to effect this, the Bureau took
advantage of the occasion to enforce the Factory Act (Amendment
Act) of 1923. According to the Amended Ordinance for the
Enforcement of the Factory Act (in force since 1 July 1926), all
factory owners, employing normally more t h a n 50 workers, must
apply the Employment Regulations to their factory workers and
receive the sanction of the local governor. T h e Bureau of Social
Affairs has notified the local governors to the effect that the latter
" shall henceforth cause the E m p l o y m e n t Regulations to be revised,
striking out the clauses in the Regulations which make the nonaffiliation to or withdrawal from a trade union a condition of
employment of the worker ". T h u s , it would seem that the situation
will in point of fact be remedied to some extent even if no national
legislation exists on this matter.
Lastly, as regards the question of the obligation of the trade
union to pay compensation for the damage caused to an employer
by strike, etc., although the draft Bill of the Bureau of Social
Affairs did not contain any clear and explicit provision, the definitive
text of the Bill, formally presented by the Government to the Diet
at its 1925-1926 session, contained an Article worded as follows :
Article 15. A Trade Union shall be under obligation to pay compensation for the damage caused to others by its directors, or their representatives, in the performance of their duties. This rule, however, shall not
apply in the case of damage, in the employment relation, caused to the
employer by either letting the members of the union carry out a common
action or restricting their action concerning the conditions of work.
T h e exact meaning of this provision is not clear. It may be
noted that both the above-mentioned Article 14 and this Article
45 !
JAPAN
were commented upon in m a n y ways and the latter was particularly
criticised because of the ambiguity of the meaning of the text.
§ 3. — Trade Union Bills
T h e preceding description of the present position of trade unions
in Japanese law has clearly indicated the extreme importance of
trade union legislation.
T h e future of trade unionism and the
welfare of workers of this country may be said to depend greatly
upon the n a t u r e of the law to be enacted, because it is bound to
affect vitally t h e workers' freedom of association in Japan.
T h e Bill presented already to t h e Diet in F e b r u a r y 1926 by
the Government consisted of 36 Articles and several transitory,
supplementary provisions, and the gist of it was as follows :
Nature of Trade Unions to be Recognised *
A trade union is composed of workers in the same or similar trade
or industry (Article 1). Those unions which embrace workers in various
trade or industries and which already exist at the time this law comes
into force, may be recognised if they report within six months (Supplementary rule). Under certain limited circumstances other people (i.e.
persons elected as officers of the union or admitted by the decision of the
General Meeting, or persons who were fomerly workers in the same
or similar trade or industry) may be admitted (Article 12).
As regards soldiers, sailors and civilians attached to army or navy,
they may be prohibited from joining trade unions by Imperial Order
(Article 33). A federation of unions is not recognised by law. However,
there is no minimum membership required of a trade union in the Bill.
Obligations
and
Limitations
The union is required to become a legal person (Article 3), and consequently it must observe and fulfil various forms laid down by the law
regarding the reports to be made on the formation of the union, its
constitution, amalgamation or split, dissolution, liquidation, etc. (Articles
3-7, 21-32). It is subject to administrative control (Articles 16-19) as is
explained below (See " supervision " ) .
The Bill provides also that certain important matters shall be decided
either by the general meeting of the union or a meeting of representatives. (Articles 10-11). The union must not lay down unjust conditions
concerning the withdrawal of members (Article 13).
Legal Status : Privileges
By the acquisition of legal personality, a trade union becomes the
subject of legal rights and obligations. In other w e d s , it can own
property and also become a party in a lawsuit (Article 3), and the general
1
According to the explanation previously given by the Administrative Investigation Board, it was intended that tenant farmers' unions
shall not be covered by the Act. Also Government officials are not'
considered as " workers ".
452
FREEDOM OF ASSOCIATION
provisions of the Civil Code apply henceforth to trade unions (Article 9).
No registration fee is changed for the registration of a trade union
(Article 8).
* ,
Traie Union Rights
In order to safeguard the position of trade unions, the law declares
" invalid " the employer's " expression of his will to discharge a worker
on account of the membership of the latter in a trade union ". The same
rule applies to the Article in a contract of employment agreeing not to
join or to withdraw from a trade union (Article 14). However, this legal
" invalidity " does not incriminate the einploj-er. In order to have this
provision enforced, it is necessary for the union to bring a lawsuit at its
own expense against the employer and nothing further than the judgment
of " invalidity " from the court can be obtained. The union, being a legal
person, has rights as well as obligations, but as an exceptional
matter,
the union may be exempted from the obligation to pay compensation for
the " damage in employment relation caused to the employer by either
letting the members of the union carry out a common action or restricting
their action concerning conditions of work ". Otherwise, as a general
rule, " the trade union has the obligation to pay the damage caused to
others by its directors or their representatives in the performance of
their w o r k " (Article 15).
Siipervision,
Punishments
and
Redress.
The trade union is subject to the supervision of the administrative
authority which may order the union to submit reports on the number
of its members, its business and its financial conditions (Article 16).
The administrative authority may also invalidate any decision of a union
which is contrary to law or injurious to public welfare (Article 17); also
it may order the alteration of the constitution of the union which contains
clauses which are against law or injurious to public welfare (Article 18I
and in a case where the action of the union disturbs peace and order, its
dissolution may be ordered by the administrative authority (Article 19).
In the event of unjust punishment inflicted by the administrative
authority the trade union may make " complaint " and also resort to
" administrative litigation " if its rights are unlawfully violated
(Article 20). The failure on the part of the directors of the union or
of its liquidators to carry out their duties properly is punishable by a
fine of" 50 yen (Articles 34-36).
P r i o r ' t o the submission of this Bill to the Diet by the Government, the Bureau of Social Affairs had published a " private Draft "
of its own, which was generally regarded as " advanced ". T h i s
private draft underwent revision on a number of important points
before it became the Bill in the h a n d s of an important Governmental
commission called " Administrative Investigation Board ". Consequently the Bill received severe criticisms of progressive thinkers
and a vigorous opposition of trade unions. Amidst a heated
controversy, before the Diet had time to take any action on the
Bill, the Session was closed. I t is important to recall here what the
revisions consisted of and from which quarters thejiopposition was.,
raised in order to show the trend of public opiffion in Japan in
favour of freedom of association.
JAPAN
453
T h e r e were two outstanding revisions which made the final t e x t
of the Bill conspicuously different from the original " private
draft ", namely :
( i ) T h e original draft proposed to recognise as trade unions
not only single unions b u t also their federations, whereas the revised,
final text would recognise only unions organised by craft or industry
and not any federation of unions of various crafts or industries.
While t h e federation is free from the control of the law, the law
will not recognise it as a legal trade union. T h e federation, in other
words, will be left out of account, even if it exists in fact.
( 2 ) - W h i l e the original draft contained a penal provision against
the employer (or his agent) w h o either discharged the worker on
account of the latter's membership in a trade union, or made the
withdrawal of the worker from or his non-affiliation to a union
a condition of employment (Articles 11 and 21), the revised text
has deleted the penal provision and rendered ineffective the guarantee
or protection of the right of a member of a trade union.
These were among the main points on account of which severe
criticism was levelled against the final text by trade union organisations
a n d critics. T h e view taken generally by some of the leading papers
of the country was that the text had been " degraded " in quality
and made " boneless " by the revision 1. Both the employers' and
workers' organisation were opposed to t h e Bill, the latter condemning the text because of the revision and the former disapproving
of it in spite of the amendments 2 .
T h e workers' organisations were especially enraged.
Among
them, the Osaka T r a d e Union Council was the first to start a
movement in opposition to the T r a d e Union Bill. Demonstrations
1
Cf. Industrial and Labour Information, Vol. XVII, pp. 269-270
(Japanese press, 7-26 Dec. 1925).
2
For example, the Labour Legislation Committee of the Tokyo
Chamber of Commerce decided already on 11 December 1925 to oppose the
Bill for the reasons that the passing of a Trade Union Act would have
a serious effect on the prosperity of industry as well as on the safetj' of
the nation, that the Bill published by the Government was premature,
defective and contrary to the idea of harmony of capital and labour, and
that it would thus react to the detriment of industrial progress. This
attitude was slightly modified later, and the Tokyo Chamber decided on
25 December 1925, to request the Government to present a Bill to the Diet
but pointing out that the Bill recently published was ill adapted to the
present needs and to urge the setting up of a Commission domposed of
representatives of the Government and of the people, to investigate the
problem and propose a solution in harmony with public opinion.
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FREEDOM OF ASSOCIATION
took, place in d u e course in T o k y o , Osaka and other large centres
denouncing the Bill as " pernicious ".
On 7 F e b r u a r y , at a large meeting in T o k y o in which all leading
trade unions, even of opposite tendencies
Preview of large file truncated