Labour Law and Labour History

Jeff Shaw QC

Below we reproduce the text of an address delivered by The Hon. Jeff Shaw, QC, MLC, during the NSW ‘History Week’ function organised by the Australian Society for the Study of Labour History, and held at Trades Hall, Sydney on 21 September 1997. Jeff is NSW Attorney General and Minister for Industrial Relations in the Carr Labor Government.

Lawyers are necessarily involved with history. The doctrine of precedent decrees that relationship. The law is an historical process of evolutionary development where common law and equity judges have incrementally developed principles and where, from time to time, legislative intervention has sent that development off on a different course. But even where the legislature has intervened to prescribe or codifY the law, the courts will construe and apply the legislation against the background of the judge-made law. The rule of law is not a reactionary slogan. For E.P. Thompson, the reconciliation of conflicts by lawful process is ‘a cultural achievement of universal significance.’ 1

When I started as an undergraduate student at the University of Sydney in 1968, our first compulsory law subject was Legal History taught by John Mackinolty in the Carslaw Building on the main campus. Our text books were Theodore Plucknett’s A Concise History of the Common Law 2 and Potter’s Historical Introduction to English Law.3 I opened them recently when researching a Bill introduced into the NSW Parliament which would have the effect of sentencing an individual to further imprisonment, contrary to the sentence of the court, thus (so I would argue) usurping the function of the independent courts. I needed to refresh my memory on the historical condemnation of the notoriolls Bill of Attainder whereby the Parliament of England asserted the powcr to declare guilty and sentence individuals without trial before a judge.

So it is that a competent labour lawyer or industrial relation” practitioner cannot hope to deal adequately with the issues und pressures of the 1990s >,without an understanding of the historical background to the current debates; that is to say without an appreciation of labour history. Russel Ward formulated the truism in this way: ‘one cannot understand a contemporary phenomenon without knowing at least something of how it came to present the appearance it now bears; that is, by knowing its history.’4

The great works of labour history illuminate contemporary controversy. They provide a hinterland of ideas which helps to put the day-to-day battles into perspective. ~umphrey McQueen has observed, in attacking the post-modernists, that ‘those cut off trom the canon are left unaware that many of the bright ideas of their gurus had occurred to dead white males.’ This was a proposition referred to and derided by Mark Davis in his recent critique of the baby-boomer intellectuals, Gangland.5

Biography puts flesh on the bare bones of statutes and institutions. It can be especially enlightening when the author attempts a thematic or theoretical approach, rather than merely assembling a pile ofdisaggregated facts.

Some examples of biographies which undoubtedly add to our understanding of Australian industrial relations include John Rickard’s magisterial study of H.B. Higgins6. Higgins pioneered the notion of the basic wage, a standard of living appropriate for workers in Australian society. He diq not regard the profits (or lack of them) made by individual employers as relevant and in 1909 told BHP “that if the company could not pay the minimum he prescribed it would be better that it closed the Broken Hill mine in question.”7 Higgins also provided an intellectual defence of arbitration, which he regarded as a great social experiment – a “new province of law and order”. Dr J.E. Isaac described this work as ‘beautifully written and scholarly’ and urged that those who made the effort to read it would be amply rewarded.8 Blanche d’Alpuget’s
Mediator: Biography of Sir Richard Kirby9 is a detailed and informative account of conciliation and arbitration in the 1940s through to the early 1970s. It shows the role of personality clashes and factional conflicts within the arbitral institution, illustrating that man does make his own history even though buffeted by economic forces. Susanna Short’s remarkably disinterested and highly readable account of her father’s turbulent odyssey, Laurie Short: A Political Life10 illustrates brilliantly the revolutionary turmoil of the 1940s and the role of orthodox Communist unionism and its opponents in the 1950s and 1960s. Many more instances could be cited of biographical studies of more marginal or idiosyncratic figures which nonetheless shed light on the colourful history of Australian industrial relations.11

An analogous point can be made about the utility of the many institutional histories of the Australian labour movement which have proliferated over the last twenty years. Any examples here are necessarily arbitrary, but I would note that the printers’ unions have been well served by Jim Hagan’s
Printers and Politics. 12 I have always found particularly interesting and analytical Tom Sheridan’s Mindful Militants: The Amalgamated Engineering Union in Australia 1920-1973. 13 And the Miners’ Federation has shown an admirable respect for its own history by the self publication of three thorough although inevitably partisan historical works by Edgar Ross and Pete Thomas.14 Whilst many of the institutional histories may not go into much detail about the union’s interaction with the arbitration system or with industrial law they do provide informative glimpses of the ambivalence with which the labour movement has viewed the formal legal structure and the pragmatism adopted in making gains trom that system, where practicable, whilst maintaining an oppositionist stance to the seductions and sanctions offered by the law.

Labour history provides the contemporary practitioner with the colourful, complex and ambivalent story of the central concept of compulsory arbitration in Australian industrial relations. D.W. Rawson has written of the great influence which the law has had on Australian industrial relations.15 Rawson saw that, in considering the interplay between law, politics and industrial relations, there were some analogies between the Australian experience and that in England. However, he described what he referred to as ‘the Australian story’ as having its own attributes and complexities and saw them arising fundamentally trom ‘the uniquely ambitious pretensions of the conciliation and arbitration systems and the powerful but equivocal responses to which they gave rise.’16 In tracing the essentially liberal genesis of Australian arbitration, Rawson was, of course, reflecting the work of many scholars. Our understanding of contemporary arbitration, albeit an arbitration system curtailed by recent legislation and trimmed down to the so called twenty ‘allowable matters’, is assisted by the discussion of the atmosphere in which the trade union movement and ‘Lib-Lab’ politicians were attracted to the idea of the power of the state as intervening between capital and labour, the suppression of what was seen as the potentially oppressive bargaining power of employers and trade unions.17

The important collection of essays edited by Stuart MacIntyre and Richard Mitchell, Foundations of Arbitration 18, explains why arbitration has dominated industrial relations in Australia – it is sanctioned by state policy; arbitral awards and orders have clear, tangible practical effects; arbitrated wage levels have implications for economic policy; arbitration is prevalent in settling industrial disputes; and there is widespread registration of orgauisations of employees and employers,19 It is this book which is the highest point of an attempt to integrate historical origin with the theory and contemporary relevance of arb!tration as a central mechanism for the resolution of industrial disputes in Australia. Many issues in the long standing debate can be assisted by historical scholarship: why did the labour movement, by and large, support arbitration, and why does it continue to do so? To what extent have the outcomes of arbitrated wage structures been different to that which an unregulated labour market would have delivered? Did arbitration, as is often asserted, foster the growth of trade unionism in Australia? To what extent has arbitration diluted union militancy and assisted moderate trade unionism? Labour historians have traditionally argued that answers to these questions could be drawn from historical study and have also argued that the questions remain relevant to today’s conflicts.20

On a more prosaic level, practitioners will find facts to be found in historical works relevant to day-to-day disputes. In seeking to argue for an expansive constitutional coverage of the Waterside Workers’ Federation in the stevedoring industry in the 1980s, I needed to trawl through the archives to show that the original waterfront union had gained coverage of all occupations engaged in or in connection with the loading or unloading of vessels.21 In seeking to defend the Amalgamated Metal Workers’ Union from a challenge to its constitutional coverage of tradespersons in the tobacco industry, I was assisted by Sheridan’s work on the Amalgamated Engineering Union and guided to the original awards in the metal industry which had an occupational and not merely employer-industry focus.

I have of course not attempted a general justification for the discipline of history. I take the value of history, the search for historical truth, to be self evident. But I have advanced some reasons why labour history is not only of relevance to labour lawyers and industrial relations practitioners, but is vital to an educated understanding of industrial relations today.


  1. Thompson, E.P. (1975), Whigs and Hunters, Allen Lane, London, 265.
  2. Butterworths, London, 1956 (5th ed.).
  3. Sweet and Maxwell, London, 1962 (4th ed.).
  4. Ward, R. (1968), Uses of History, Public Lecture printed by the University of New England, 5.
  5. Allen and Unwin, Sydney, 1997, 164, 165. vRickard, J. (1984), H.B. Higgins: The Rebel as Judge, Allen and Unwin, Sydney, 1984.
  6. Ibid., 175.
  7. Isaac, J .E. (1985), Book Review of “H.B. Higgins: The Rebel as a Judge”, Journal of Industrial Relations, vol.27, 400.
  8. Melbourne University Press, Melbourne, 1977.
  9. Allen and Unwin, Sydney, 1992. The writer commented in more detail on this work in J.W. Shaw, Book Review of “Laurie Short” (1993), Journal of Industrial Relations, vol. 35, 361.
  10. See, for example, Graham, M. (1995), A.B. Piddington: The Last Radical Liberal, UNSW Press, Sydney; Dabscheck, B. (1983),Arbitration at Work: Sir William Raymond Kelly and the Regulation of Australian Industrial Relations. Allen and Unwin, Sydney.
  11. Hagan, J. (1966), Printers and Politics: The History of the Australian Printing Union 1850-1950.,Australian National University Press, Canberra.
  12. Cambridge University Press, Cambridge, 1975.
  13. Ross, E. (1970), A History of the Miners’ Federation of Australia, Australasian Coal and Shale Employees Federation, Sydney; Thomas, P. (1986), The Coal Miners’ of Queensland, Queensland Colliery Employees Union, Ipswich, 1986; Thomas, P. (1983), Miners in the 1970s, Miners Federation, Sydney.
  14. Rawson, D., ‘Law and Politics in Industrial Relations’ in Ford, G.W. Hearn, J.M. & Lansbury, R.D. (eds.), Australian Labour Relations: Readings, 4th ed., MacMillan, Melbourne, 46.
  15. Ibid., 48.
  16. Ibid., 53.
  17. MacIntyre, S. & Mitchell, R. (eds.) (1989), Foundations of Arbitration: The Origins and Effects of State Compulsory Arbitration 1890-1914, Oxford University Press, Melbourne.
  18. Ibid., 1-2.
  19. Garton, S. (1994), ‘What Have We Done? Labour History, Social History, Cultural History’ in Irving, T. (ed.), Challenges to Labour History, UNSW Press, Sydney, 46, 47.
  20. As to the legal and industrial battle for an industry union on the waterfront, see Beasley, M. (1996), Wharfies, Halstead press, Sydney, 265, et. seq.; the writer dealt with some legal aspects of this contest in Shaw, J.W. (1988), ‘Interpreting Trade Union Constitution Rules’,
    Australian Law Journal, vol. 62, 690.