Article concerning industrial peace methods by G Hartog “Methods of Industrial Peace within the Empire” published in South African Law Journal 1913 at pages 442 – 448
[GilesFiles Note: Despite being written so many years ago this article is essential reading for an in-depth understanding of labour law and the role played by Jan Smuts. Bold and underlining added]
“Recent industrial disturbances upon the Witwatersrand, and the grave danger of their extension throughout the Union, are, it is hoped, sufficient warrant for the appearance of an article of this nature in the South African Law Journal. The title finds its explanation in the fact that the author of its phrasing is Professor S.J.C. Chapman, whose high authority as an expert upon the subject proposed to be discussed has received the recognition of the Union by his appointment as Chairman of the Economic Commission.
Legislation within the Empire with the object of preventing industrial disturbances, or of promoting peace, in the event of disagreement between masters and men, may be classed under three main heads.-
(1) The State has contented itself simply with the friendly proffer of an impartial conciliator or mediator or board of conciliators, the acceptance of mediation being in no way compelled, nor are strikes or lock-outs prohibited. This may be called the English type
(2) Strikes or lock-outs are prohibited under heavy criminal penalties, and resort to arbitration courts is compelled. The awards are enforceable not only against trades or industrial unions, but also against their individual members. This may be called the Australasian type.
(3) The acceptance of mediation is compelled and a strike or lock-out prohibited, but only until the intermediary has investigated the merits of the dispute, has reported thereon to Government, and (in the Transvaal) a prescribed interval has elapsed after publication of the report. Acceptance of the finding is not compelled, and if not accepted a strike or lock-out may be declared. This may be called the Canadian type.
None of these methods has succeeded in preventing strikes, but the method which has succeeded least, is the type which, has set out to do most, namely the Australasian. Proof of that is to be found in the fact that after more or less fainthearted enforcements of iron prohibitions, Governments are reverting from type (2) (evolved, be it noted, mainly by Labour Administrations) to types (1) or (3).
As Australia and New Zealand have experimented most in this class of legislation, it will not be inappropriate to discuss some examples of type (2) and their results first. The Commonwealth (Australia) Act of 1904 forbids strikes under penalty of £1,000, but as the operation of that Act is confined to disputes extending beyond the limits of any one State, it is not surprising to learn that,
” no strikes or lock-outs have been officially recognised as contravening the provisions of the Act during the eight years it has been in force.”
Coming to individual States, the experience of New South Wales under similar legislation in force from 1901 to 1908 is notable. In that period the number of strikes there increased from 2 in 1901 to 52 in 1907, and to 33 in the first quarter of 1908, and there were 13 instances in which arbitration awards were repudiated by those upon whom they were legally binding. Between July 1, 1908, the day on which the N.S.W. Industrial Disputes Act came into force and August 31, 1911, there occurred 58 strikes, and in only 6 cases were prosecutions made under the Act.
Similar experiences of the ineffectiveness of the Wages Boards Acts to prevent strikes by endeavouring to enforce by law certain definite minimum conditions of employment in different trades; of the failure to compel the acceptance of awards; and of the impracticability of enforcing penal clauses, are to be recorded in other Australian States.
In New Zealand the strikes that have occurred there from time to time suffice to prove that the Industrial Conciliation and Arbitration Act (the parent of this type of legislation) is a broken reed when put to the test. To take the most recent cases, the Wellington tramway strike in February, 1912, was declared in deliberate violation of the law, and the Waihi strike (May to November, 1912) arose out of the repudiation by the Miners’ Union of an award of the Arbitration Court made four years before.
[Note: The writer is indebted for the Australian references to the “Round Table”, of September and December 1913.]
The cumulative result of these experiences, and perhaps more particularly the effect on votes, has led to the condemnation of strikes by responsible Australian Ministers as being methods as barbarous and out of date as trial by torture, and in some States, to a change of legislative method. Thus the new Industrial Arbitration Act of 1912 of New South Wales no longer claims to prohibit lock-outs or strikes.
“It only attempts to make them an expensive and inconvenient way of enforcing demands”. [See the Contemporary Review for July, 1913.]
It provides a means of conciliation the object of which is to prevent labour unrest in any area developing to strike-point. Its method of securing this is by the appointment of an Industrial Commissioner whose duty it is to intervene at the first murmurs of trouble. His business is to get masters and men together round a table in the early stages of dispute, and to create a friendly atmosphere. He has no judicial powers, and no compulsory powers beyond that of compelling the parties to meet. If, though they meet, no settlement is reached the matter is referred to the Minister whose duty it is to pass matter on without delay for judicial adjustment to the Arbitration Court. It is claimed after nine months experience that the Act is succeeding. In that period the Commissioner has intervened in 36 cases, in 15 of which a final, and in 20 of which a temporary settlement was effected.
Coming to type (1), in England, conciliation is not compelled but encouraged. The conciliators have been such as to inspire confidence, and though strikes are still not obsolete, their rigour has been mitigated.
The most notable example of the success of a voluntary submission is that which arose out of the great Coal Strike of 1893. That was a wages dispute which threw 300,000 persons out of work and lasted 8 months. It was settled by voluntary submission to a board of which Lord Rosebery was president. In consequence of its success the Board remains in existence by agreement, and is empowered, in the coal areas concerned, to fix wages in the event of dispute, within certain minimum and maximum limits.
Under the Conciliation Act of 1896 some two hundred boards have been instituted, and they have had to consider in this period 1896 to 1905, some 1,500 cases, of which they have settled half. [Encyclopedia Britannica] The Coal Strike of 1912, which arose out of the demand for a minimum wage, resulted in the creation by law of Wages Boards for particular districts in the coal areas with similar powers on voluntary lines, but insufficient time has elapsed to say what influence they had in the prevention of strikes.
Type (3) compels a delay for investigation before a strike may be declared. This is the method of the Canadian Disputes Investigation Act of 1907 (known as the the Lemieux Act), and of the Transvaal Industrial Disputes Prevention Act 20 of 1909, which though more ambitious in title, has been content to copy the Canadian Act’s main provisions.
Both make it unlawful to declare a strike or lock-out on account of any dispute until investigation by a Board instituted by the Act; report thereon; and in the Transvaal, the elapse of a further period of one month after publication of the report. Both enact, however, that an industrial dispute shall not be referable to a Board unless it be one “affecting not less than ten employees“.
Both fail in omitting to define more particularly what “affecting not less than ten employees ” means. Does it initially and directly affecting, or sympathetically and indirectly affecting? And whether either or neither, ought not more be stated so that the Minister may have some guidance in his duty of deciding whether any dispute comes within the Act?
This very difficulty arose in the recent Witwatersrand trouble. Shortly, the origin of that disturbance may be stated thus. Certain changes of hours, not involving an increase, and directly affecting five men only, were made by the management of a mine without giving the statutory month’s notice. The five affected declined to accept the proposed changes, and were discharged. The whole of the men on the mine struck, and thereafter men on other mines were “pulled” out, or went out in sympathy.
No prosecution was instituted against the management for declaring a lock-out, and none against the men for striking without invoking the Act. There was a dispute, a, strike, and a lock-out within the meaning of the Act, but presumably because ten men were not initially affected the authorities held that there was no dispute compulsorily referable to a Board. In consequence the Act was not applied and the whole Rand was plunged into turmoil.
It is submitted that this difficulty would be avoided if the Act were amended so as to make a dispute compulsorily referable to the Board if in the opinion of the Minister the men are likely to be affected. In both Acts it is the Minister’s duty to decide whether the Act applies to a particular dispute. Deciding the point of likelihood, will not materially increase his difficulties. The fact that the Act was not applied or was not applicable has led to adverse criticisms of the Act in principle, but these are not justified.
In Canada the machinery of the parent Act has been frequently invoked, and the figures [see Whittaker for 1913] shew a distinct measure of success.
The experience of New South Wales under its new Act of 1912 is undoubtedly corroboration, whilst the non-application of the Act in the Transvaal proves nothing. It is significant to note that legislation of this type fights shy of lawyers,- whether rightly or wrongly, maturer experience will show. Both the Canadian and Transvaal Acts exclude the services of counsel before investigation boards unless the disputants agree to be so represented, and in Canada notwithstanding such consent, the board may decline to allow their appearance. Under the New South Wales Act of 1912 no barrister may plead before the Arbitration Courts or Wages Boards.
A workers’ criticism of the Canadian model has been that it so blunts their only weapon as to render it useless. From their point of view the value of the strike lies in the fact that it may be invoked without warning and that if delay be compelled the employer is given an advantage which the men can never overtake. In the writer’s opinion not much weight should be given to that objection. The history of strikes shews, that whether the grievance be remedied or not, loss, unovertakeable loss, is inflicted upon those least able to afford it; the whole community is made to suffer for the intended benefit of a section; and violence is an invariable concomitant.
The law’s concern and duty is with the peace and good order of the community as a whole. Anything therefore that the law can do to delay the use of so clumsy and double-edged a weapon should be done, provided that the period of delay is occupied by every sane attempt possible to remedy legitimate grievances, and that the machinery of investigation be such as to be rapidly and easily assembled. In a speech delivered in September, 1913, Mr. Malan foreshadowed that the new Act for the Union would insist on the taking of a ballot before a strike may lawfully be declared. Surely a sane precaution after the disgraceful intimidation practised upon Rand miners duirng the last June and July. It is clear that the new Act will not be type (2): it remains to be seen whether it will partake rather of the English than of the Canadian type.
To arrive at some conclusions as to the trend of new legislation, it will not be out of place to sum up the inferences that may be drawn from the preceding survey.
In the first place it is clear that, with human nature environed and educated as it is at present, none of the methods reviewed have resulted in a complete escape from the violences and disturbances of strikes and lock-outs.
Secondly, it would seem that both the economic and moral advantages lie with the English method, because apparently a free submission puts the disputants upon their honour, whilst the surrender of the freedom to settle or to fight, creating as it does a predisposition to resent obedience to a tribunal that has not been freely invoked, seems to explain the failure of compulsory methods.
Prof. Chapman says that
“the distinctive feature of English methods of industrial peace at the present time is the confidence reposed in the disputants to reach a solution of their troubles by continued discussion. All that the State does is to mediate, prevent premature outbreak, and lend aid in the form of the helpful suggestions which men of wide experience can so easily make, if it is found that conflict of interest is irreconcilable.
… To generalise from English experience it would seem that the solution of the problem of industrial peace is to be found in the Joint Wages Board, representatives of masters and men, because on the one hand they alone are in possession of the relevant facts, and because on the other, of the presence of a watchful and unbiassed intermediary, whose main function it is to prevent a hasty appeal to the strike or lock-out.”
Thus, in the third place, the essentials for success would seem to be voluntary submission to boards composed on the English plan, impatient of technicalities, so constituted as to be rapidly invoked, but not so permanent as to court the risk of becoming bureaucratic.
[See Mr Warinton Smyth’s able review at Kimberley, on September 16th.]
Fourthly and lastly, it is clear that as the primitive is not yet exorcised from man, British legislators have been compelled to recognise “the right to strike,” i.e., the right to invoke methods which hurt not only those immediately concerned, but are intended to, and do inflict suffering and loss upon a wide circle of individuals outside and innocent of the grievance, and powerless to remove it. But what is equally clear is that the demagogic insistence on the right to strike is apt to emphasise and accelerate rupture rather than the means of preventing it.
Therefore it becomes certain that it is the plain duty of the law, upon a dispute arising, to effect such a period of delay, and to provide in that period such early, competent and tactful intervention, as will enable calmer counsels to prevail.”
Johannesburg, G. HARTOG.