CHAPTER 9
When Solidarity was formed in Poland its emergence was welcomed enthusiastically by conservative western leaders. The absence of free trade unions in the Soviet Union is an embarrassment to its friends in the West and is commonly pointed to as evidence of the oppressive character of communist rule. Indeed "workers' states" are universally characterised by the non-existence of these very instruments of working class advancement.
At the same time the performance of trade unions in Western democracies is a major source of anxiety for Western leaders. Indeed it may be argued that when British Labour and Australian Labor Party governments have to submit the national Budget to the trade union leadership (the Trade Union Congress and the Australian Council of Trade Unions respectively) for prior approval, there has been a shift of Austinian sovereignty from the popularly elected national government to the selectively and indirectly elected leadership of one large minority within the community. (Crudely, the test for Austinian sovereignty -- sovereignty in the sense of the nineteenth century English jurisprudentialist John Austin -- is, Who, in fact, is in receipt of the habit of obedience?)
There are two respects in which trade union power sits uneasily with the official theory of Western representative liberal democracy; the first concerns the distortion it introduces to representative government, the second and more complex is the threat it poses to important areas of liberty.
The trade union movement possesses the capacity to prevent democratically elected governments executing government policy. This capacity is not limited to making its execution conditional on the meeting of industrial demands of the "traditional" sort; for example demands for a wage rise or upgraded working conditions. Through "green bans" in Australia trade unions have selectively prevented redevelopment of both private and publicly owned property. These bans have not caused public outrage, generally because the public's sentiment has been on the side of preservation, and often because the redevelopment proposals were introduced or approved as routine matters of low-level government decision making, and did not represent issues on which governments could claim a popular electoral mandate.
Thus many would defend the action of the unions on the ground that they publicised and prevented an unpopular development which would otherwise have come about through a failing at a point of detail in the democratically elected government's decision-making. They might even argue, as some unionists have declared, that green bans have been a manifestation of true democracy, in that they resulted in popular outcomes.
Trade union bans, however, have not always been directed at securing popular results in relation to poorly considered low level decisions. Moreover it would be absurd to equate the achievement of a popular outcome with "true democracy". Democracy has to do with the procedure for decision making and not with the popularity or unpopularity of the substance of the decision. A benevolent dictator may make universally popular decisions, but this no more makes the regime a democratic one than is the regime of a malevolent tyrant. (A similar idea, that so long as the decisions reflect the "true" or "higher" will of the people the regime is democratic, lies behind the current intellectually fashionable nonsense that a one-party state may be a democracy.)
Quite apart from the fact that it is erroneous to equate the achievement of a popular outcome with the expression of true democracy, it must also be remembered that the execution of democratically determined policies may necessarily involve unpopular measures. Were a trade union for example to apply a selective ban on the issuing of personal income tax demands, its decision would probably meet with a certain degree of short term popularity; however, such a strategy would be profoundly undemocratic in effect in that it would prevent the democratically elected government from achieving its objectives.
Trade union bans have in the past been employed to frustrate Australian government policy in relation to the Dutch East Indies, the modification of Medicare (in accordance with an electoral mandate) and more recently in relation to the visit of nuclear powered and possibly nuclear armed ships to certain ports. There is strong support within the trade union movement, not dominant at present although it could easily become so, for the ending of all uranium mining and development within Australia, and for the total shut-down of nuclear energy based industry in Great Britain and France.
Leaving aside the political ends, which are unstated but intended by many of the cynical instigators of the latter policies, (which in short are to do with weakening defence, undermining strategic alliances. and running down the competitive advantages enjoyed by western democratic economies by limiting their access to cheap energy), and confining our attention to the overtly declared fears of nuclear annihilation, it is difficult to see how any democracy can accept the right of the trade union movement to veto government policies or to impose policies inconsistent with those determined by the democratically elected government.
It is critically important that we distinguish the issue of whether there may be some circumstances in which we are glad or relieved that a trade union has frustrated a government policy, from the issue of whether we recognise a moral right of trade unions to frustrate government policy. A thief entering my house might accidentally waken an elderly resident who had fallen asleep in bed with a lit cigarette. I am glad, relieved, indeed in a sense grateful to the house-breaker for saving the elderly resident from death or serious injury and my house from conflagration. But I do not recognise the intruder as having a moral right to enter my house.
How, then, can one consistently welcome the emergence of Solidarity, the very purpose of which is to frustrate Polish government policies in some areas and to insist upon its preferred policies in others, while condemning trade unions in Western liberal democracies in so far as they assert the right to impose their will on elected governments?
The critical difference is precisely the difference between a liberal representative democracy on the one hand and a closed totalitarian society on the other. The right to coerce others to do what they do not want to do is one that should not be conceded lightly. A representative democratic government selected under conditions of liberty, including most notably freedom of expression and freedom of association, including the freedom to join and form organisations, has a superior claim to moral legitimacy in its law making (even though of course it may still enact immoral laws) than does one for which candidature for political office is not available to those who do not share the political philosophy of the incumbent party, in a society in which such important liberties as freedom of expression and association do not exist.
A union that asserts a right to coerce government to implement its policy is making a substantially different assertion when the target government is one of a liberal democracy, than when it is one of an illiberal dictatorship. There is no such general right as the right to win. The superior claim to moral legitimacy of the government of a liberal democracy as against that of an illiberal dictatorship is grounded in the fact that the former government emerges from and stays in power within a framework which provides for a peaceful contest. The legal system of a liberal democracy facilitates the expression of conflicting points of view and directs the forces of law and order against those who would use private force to prevent certain points of view from being expressed or prevent people from associating to further these points of view. (We should, incidentally, be very wary therefore of those who would limit our freedom of expression in certain areas because of fears that the expression of certain opinions and attitudes might incite people to, for example, racial or ethnic hostility and violence. The direction of fit should be the other way round. We should be concerned rather to intervene only at the point at which such violence erupts; and not deter under primitive threat the expression of the points of view that might have that unfortunate result.)
It is precisely because the illiberal dictatorship does not provide a framework for a peaceful contest that resorts to coercion of the sort involved in Solidarity and, one hopes in the future, in the underground free trade union movements in the Soviet Union and certain Latin American countries have a legitimacy that they would not otherwise have. The use of union muscle for political ends -- that is, ends which have no plausible connection with the terms and conditions of employment and which are not within the competence or capacity of the employer to concede -- is unequivocally illegitimate when its aim is to secure a victory, in terms of effective government policy, which was not won within a liberal democratic framework for peaceful contest. To assert that such coercion is legitimate is to assert that, although all may compete, the trade union movement has a right to win.
The use of coercion by trade unions for political ends thus introduces a serious distortion into liberal democracy, for it means that there is a way of imposing one's policies on the government that does not require participation in and victory through the peaceful contest which the liberal democratic framework sustains. This naturally suggests that the law in such societies should be modified to prevent such a result. Thus we frequently hear cries, notably from conservative opposition politicians, that "political strikes must be outlawed".
Leaving to one side the considerable (but, I believe, soluble) problems in defining a political strike, we face another, more fundamental problem. It is received wisdom among the writers and commentators on Western industrial relations that one cannot deal with unions in a legal cum punitive manner. This received wisdom is difficult to evaluate largely because, like Kant scholars, academic and journalistic commentators on unions seem to gravitate to their subject largely because they have a soft spot for it. They tend to be sympathetic to the unions and to believe that public impatience with some union activities is the result of limited comprehension of the ways in which unions work and the complexities of the problems they face.
Nonetheless the history of attempts to curtail union activities through law has been a very sorry one, particularly in Great Britain and Australia. Australia has an extremely complex set of legal arrangements for arbitrating, conciliating, and determining wages and conditions, within which the trade union movement participates, with a few maverick exceptions, fully and vigorously; but once we move from using law to facilitate the management of union-employer disputes and conflicts to using law to discipline unions that disregard their obligations deriving from the application of such procedures, or that operate in defiance of the general law, the record is not one of success.
In essence, the argument is that however morally appealing and legally tidy it might be to subject errant unions to legal penalties, the political reality is that unions are most likely to act in flagrant breach of the penalty-backed laws when, and only when, they know the enforcement of these laws is a political impossibility. The making illegal, in eighteenth and nineteenth century England, of the combinations of working men that we now know as unions failed; indeed such illegal combinations flourished. As Dr Leslie Macfarlane has reminded us:
In spite ... of formal legal proscription in the Combination Laws of 1799 and 1800, combinations continued to flourish; and strikes, sometimes accompanied by violence and intimidation against both masters and workmen, were a common feature of the industrial scene. The Government of the day, however, lacked the resources necessary to instigate prosecutions on a large scale, and most employers were unready and unwilling to do so. (1)
In Australia contempt proceedings and penalties directed to delinquent unions have not fared well. The classic illustration is the Clarrie O'Shea affair of 1969. Professor Ross Martin summarises it as follows:
The matter came to a head in May 1969 when the Industrial Court, seeking to recover outstanding strike fines, imprisoned a union secretary for contempt of court after he had refused to produce his union's books. The immediate result was the massive "O'Shea strike", a bushfire of stoppages which flared throughout the country during the four days that elapsed before a Sydney lottery winner paid the union's fines. Afterwards, in contrast with the metal trades work value dispute a year before, no attempt was made to penalise the unions involved. The moratorium on strike penalties, tacitly declared this way, was substantially maintained to the end of the period. The penal provisions remained in the legislation but they no longer menaced the unions. (2)
(C.L. O'Shea, the Victorian union official in question, was at the time a vice-chairman of the Communist Party of Australia [Marxist-Leninist], a Peking-oriented product of the Soviet-China split.)
Under the Australian Conciliation and Arbitration Act sections 33 and 119 there are modest enforcement powers of which James Macken, G.J. McGarry and Carolyn Sappideen have written:
This procedure in effect inserts a period of conciliation between breach of an award and punishment for that breach; it is a "cooling off" period. Although the arrangements outlined are apparently more acceptable than the contempt proceedings which they replaced, the idea of punishing employee organisations for award breaches is still likely to produce an emotive reaction, and employers have used the procedure sparingly, presumably for fear of precipitating an even worse industrial relations problem. (3)
There seems to be little concern that a major force within the community, the trade union movement, is amenable to such very limited legal control. No other force within the community can escape its legal obligations with such relative impunity. The reality is that the power of the trade union movement to hurt people is so great that it is on balance not worth the pain of dealing with it in the way we should expect and demand of other sections of the community. (It is worth imagining, in contrast, what the community's attitude would be if an attempt to penalise a major manufacturer for violating anti-pollution laws were met by a threat, by the manufacturer, to unleash pollutants on an unprecedented scale.)
Attempts to bring the industrial activities of the trade union movement under the general law or, more precisely, to deal with trade unions as one would with other entities when it comes to the legal prevention of harm to innocent people or the application of penalties for non-compliance with legal obligations, are comparable with attempting to regulate war by law. Regulations governing the conduct of war represent ideal parameters of tolerable decency when it comes to the prosecution of the war, but they do not represent genuinely enforceable legal standards, nor would we really expect any war leader to observe them to the point at which compliance meant defeat and non-compliance victory.
Although individual trade unions have many functions in common with other associations, such as member development, fellowship, bulk discount seeking and so on, they differ specifically in their claim to an entitlement to use coercive measures to secure an advantage from others who are otherwise unwilling to give it to them, and who have no prior legal obligation to give it to them. It is our recognition that they have such an entitlement (although its scope and nature must be determined) that makes the attempt to bring union activities wholly within a framework of coercive law an untenable one. Nobody seriously suggests that the trade union entitlement to use coercive measures to secure advantages applies to any and every coercive measure and any and every advantage. Most of us would, at one end, readily concede the legitimacy of a union's calling a strike in a printing factory because the owner persistently failed to fulfil the legal obligation to provide a safe place of work. At the other end few would concede the legitimacy of a union of, let us assume, highly paid drivers, banning food deliveries to hospitals (and picketing to prevent non-union deliveries) unless they received a 30 per cent wage rise. It is in the vast area between that our intuitions of legitimacy divide. Even when public opinion is overwhelmingly of the view that a strike is not legitimate (for example, the lengthy rail strikes in New South Wales in 1983 and 1984, and the not infrequent strikes of highly paid Australian refinery workers in critical positions who can shut off oil and petroleum supplies to whole states), there is still reluctance to introduce new or even to enforce existing penal provisions because of the political judgement that the penalties will themselves become a new industrial issue involving a wider range of unions in a wider range of industries. Like outlawing war, banning morally irresponsible industrial action only serves to underline the fact that legal systems are not omnipotent.
What can those who are committed to the value of representative democracy and liberty do? The first is to acknowledge that it is unrealistic to expect governments to do anything positive, for the very problem is that it is not an absence of legal or constitutional capacity (although in Australia there is an inelegant division of the relevant constitutional powers between Commonwealth and States) but an absence of political capacity which paralyses governments in their dealings with agreed union excesses.
But this is not a basis for acquiescence or despair. There are three steps that can be taken. The first is at the level of ideas. It is perilous to underestimate the power of ideas over people. One of the ideas that still has widespread currency is that unions exist to secure justice and to fight for what in some moral sense rightfully belongs to their members. There are unions, and there certainly have been unions, of which this is true. But it is no longer true, if it ever was true, of unions in full generality.
Indeed it is a matter of simple observation in Great Britain and Australia that those workers who are most benefited by militant industrial action are those who are already among the higher paid. There is no credible moral argument for the idea that a well paid worker who is not awarded a further rise through independent arbitration, or who refuses through his union to submit to such arbitration, is therefore entitled to engage in action designed to hurt innocent people (the public) and to hurt his employer, until the rise is forthcoming. In the end political society depends for its survival on certain conduct being unthinkable. It is not Bills of Rights but the near-universal internalised realisation within the community, including the governing class, that certain ways of behaving are absolutely beyond the pale that is the ultimate safeguard of the liberty of the subject. It is only if there is a shift in our thinking, so that simplistic applications of moral categories, positive or negative, to unions are replaced by intelligent moral assessments of particular union strategies, that we can develop in the community at large, including the large section comprising unionists, a clear idea that the standards that should govern acceptable union behaviour are identical with those that should govern acceptable personal behaviour. In neither case is the end generally sufficient to justify the means. It is sad that a nation of people who would today mock "My country, right or wrong" contains many who would not question "My union, right or wrong".
Second, governments have exacerbated the problems caused by militant unions by their penchant for regulation and their desire to preserve their own inefficient monopolies. The devastating impact of the 1983 and 1984 railway strikes in New South Wales was partly the result of government regulation of public transport to protect its own railway system from fair competition. The absence of competition also increases the impact of the strike, as most people have no effective alternative transport. Private coaches picking up the public are forbidden under penalty from competing over routes serviced by rail, which means major cities such as Newcastle and Wollongong have no surface public transport to the state capital when the railway system fails for any reason. If the governments of Australian States were to follow the example of the Thatcher government in Great Britain and permit private coaches to compete with government railways, the damage caused by strikes in the rail systems would be lessened, thus reducing the incentive for calling them in the first place, and the public would have a better service (and ultimately a cheaper one, as manifestly uneconomic rail services were withdrawn).
To generalise, government monopoly, and, equally, government protection of private monopoly and oligopoly (as when governments set arbitrarily high artificial entry barriers to industries, such as the new restrictions on starting new private schools in Australia) are themselves causal factors in generating and maintaining the power of militant unions. Opening up industries to competition by the removal of government-conferred privilege correspondingly reduces the near-tyrannical power of the entrenched unions, particularly if the competition is created by the entry of firms with different technological or strategic bases, whose personnel are not covered by the entrenched unions.
Third, governments must resist pressure towards enforced "industrial democracy". If particular unions and particular firms wish, as some have done, to bargain representatives of the union onto the policy making board of the enterprise in question, that is a legitimate area of agreement. If the evidence that this increases productivity is as abundant and convincing as some say it is, then most firms will want to follow suit. But it is not the business of governments to legislate such arrangements onto private sector organisations.
It is necessary to mention this because of the increasing frequency with which one hears calls for governments to legislate for industrial democracy. Two arguments are used. The first is that productivity gains will result. As I have already implied, if this is true, and there are no comparable off-sets in increased costs, then all that is necessary is publicity. Mutual self-interest will do the rest.
The second is a more fundamental moral argument to the effect that we all have a right to a say in the decisions that affect us. Actually it is more of a dogmatic assertion than an argument, as one quickly realises when one asks, Why? It is, in any case, an absurdly impractical contention as the ripples from even the most trivial of my decisions may be enormous in their range. I buy the house next to you. You now have me for a neighbour. Should you therefore have participated in my decision to buy that house, as you are affected by it (as are all the other neighbours)?
Moreover, as Robert Nozick has pointed out:
[A]fter we exclude from consideration the decisions which others have a right to make, and the actions which would ... violate my rights, it is not clear that there are any decisions remaining about which even to raise the question of whether I have a right to a say in those that importantly affect me. Certainly if there are any left to speak about, they are not significant enough a portion to provide a case for a different sort of State. (4)
Proposals for industrial democracy achieved through government legislation are a further step in that fundamentally illiberal direction which begins with government acceptance of the closed shop or qualified or absolute union preference, which it has in many states in respect of unions covering its own employees, and in the private sector.
It is ironic that Australian governments which are so anxious to legislate to implement domestically United Nations declarations and other international covenants do not pause to consider Article 20(2) of the United Nations Universal Declaration of Human Rights: "No one may be compelled to belong to an association". Moreover, since a closed shop is generally a one union shop, what of Article 8.1a of the Covenant on Economic, Social and Cultural Rights, which guarantees "the right of everyone to form trade unions and join the trade union of his choice"? It seems that some international covenants are more binding on Australia than others!
The decision to join any association and thereby align oneself with its objectives is one which people should be encouraged to make soberly and thoughtfully. When governments actively or tacitly support arrangements which make joining a particular association a de facto condition of earning one's livelihood it is not just international convention but a fundamental element of individual liberty, expressed in the principle of freedom of association, which is violated.
We are gradually habituating ourselves to the idea that the industrial relations area is one which "doesn't count" as a domain in which these fundamental principles apply. We have allowed ourselves to slip from the realisation that certain normally enforceable standards are not legally enforceable when it comes to unions, to the dangerous nonsense of a conclusion that holds that the industrial relations area is essentially a Hobbesian state of nature which somehow subsists within an otherwise civilised society. Yet that society is civilised ultimately because there is near-universal recognition that certain ways of behaving are unthinkable. It is important that our understanding of the proper roles and powers of unions catches up.
ENDNOTES
1. L.J. Macfarlane, The Right to Strike, Harmondsworth, Penguin, 1981, p 35.
2. R.M. Martin, Trade Unions in Australia Ringwood, Penguin, 1980, p 17.
3. J. Machen, G.J. McCarry and C. Sappideen (eds), The Law of Employment, 2nd edn, Sydney, Law Book Co., 1984, p 269.
4. R. Nozick, Anarchy, State and Utopia, Oxford, Blackwell, 1974, pp 268-270 (emphasis in original).
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