Adelaide construction worker and unionist Ark Tribe went to court last Friday (October 30): “Mr Tribe’s appearance before a magistrate was brief, with the case adjourned until December 18” (Jail threat sparks union protests, Ewin Hannan and Gavin Lower, The Australian, October 31, 2009).
Interestingly, the CFMEU has vowed to undertake “a national strike in the construction sector if Mr Tribe were jailed”, which claim naturally brings to mind The Curious Case of Clarrie O’Shea (1906–1988), the Victorian State Secretary of the Australian Tramway & Motor Omnibus Employees’ Association (ATMOE), jailed in 1969 by Sir John Kerr for contempt of the Industrial Court. The marriage ceremony between O’Shea and prison, conducted by Kerr, gave premature birth to a general strike in May of that year — O’Shea was released shortly thereafter (see : John Arrowsmith, Abolish the penal powers: freedoms fight of ’69, Trades Hall Council Administrative and Financial Review Committee, Melbourne, 1969 [PDF]).
‘Friends of Hawthorn Tram Depot’ on Clarrie O’Shea:
…Over a period of five years from 1964 to 1969 the ATMOEA had accumulated 40 fines totalling $13,200 as a result of industrial action, none of which were paid by the union. O’Shea was ordered by the Commonwealth Industrial Court to provide the financial records of the ATMOEA, so that the court could determine the union’s ability to pay the outstanding fines. However, he point blank refused to provide the records.
The culmination of this conflict occurred on 15 May 1969 when O’Shea was jailed by Justice Kerr (later Sir John Kerr and Governor-General of Australia, notable for the sacking of the Whitlam Government) of the Commonwealth Industrial Court for contempt over the failure to answer summonses and pay fines totalling $8,100.
This sentencing resulted in national general strike action across a wide range of industries. There were a number of marches in many state capitals, often culminating in violent clashes between strikers and police. The level of public unrest caused anxiety to both Federal and State Governments, but they could not afford to be seen to back down, as they would otherwise appear to be soft on union militancy. This dilemma was only broken by the action of Dudley MacDougall, a former advertising manager for the Australian Financial Review, who paid the outstanding fines acting on behalf of an anonymous public benefactor who was said to have won the NSW State Lottery. O’Shea was released from Pentridge Prison on 21 May 1969.
On his release, O’Shea announced, “My release is a great victory for workers. I am certain that all workers remain adamant in their opposition to the penal powers, which are designed to suppress the workers. The infinite power of the workers when they are really aroused has frightened the life out of the government and the employers … I am certain the workers will continue the struggle for the abolition of all penal powers.”
The jailing of O’Shea was the last use of the penal sections of the Conciliation and Arbitration Act, although these provisions have never been repealed, so O’Shea did not get his wish. In order to prevent similar mass action over industrial issues, the Fraser Government introduced in 1977 sections 45D and 45E of the Trade Practices Act, which outlaws secondary boycotts within Australia – the very mechanism used to place pressure on the government of the day in the O’Shea case. These secondary boycott provisions still remain in force, but the public outrage generated by the jailing of O’Shea has prevented similar court action by the Federal Government.
Some things do change however, and one Sir has been replaced by the KRudd Government with another: the Australian Building & Construction Commission (ABCC): the failure of building workers like Ark to doff their caps when in its presence is another sure sign of society’s decay.
See also : “A dose of libertarianism would enhance our democracy” — and if my aunt had balls, she’d be my uncle., October 20, 2009.
