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THE COMPULSORY SETTLEMENT OF INDUSTRIAL DISPUTES

I. Memoranda relating to the text and operation of laws affecting Strikes and Lock-outs. Cd. 6081. 1912.

2. United States Bulletin of Labour. No. 98. 1912.

3. Industrial Warfare. By C. WATNEY and J. A. LITTLE. John Murray. 1912.

4. Report on the Industrial Disputes Investigation Act of Canada, 1907. By Sir GEORGE ASKWITH. Cd. 6603. 1913.

5. Report of Industrial Council on Enquiry into Industrial Agreements. Cd. 6952.

1913.

6. Evidence taken before the Industrial Council in connection with the Enquiry into Industrial Agreements. Cd. 6953. 1913.

IN

'N the United Kingdom there is nothing illegal in a strike per se-that is, in a simultaneous cessation of work by work-people consequent on a dispute as to wages and conditions of employment; and so long as such illegal elements as intimidation, violence, or breach of contract are not introduced into a strike, the law cannot be invoked against strikers. In the same way, in the United States and France, except in a few unimportant cases, complete freedom to strike exists. But the grave inconvenience and loss which have been caused to the community in recent years by a series of widespread and prolonged strikes have raised the question whether the State should not attempt compulsorily to settle industrial disputes and place restrictions upon freedom to strike and lock-out. It is true that even where complete freedom to strike or lock-out is given by the law, it may be taken away in exceptional cases by ad hoc legislation or executive action. The Coal Mines (Minimum Wage) Act, for example, which ended the English coal strike of 1912, though based upon the agreement of the parties, contained compulsory elements; and the calling up of the reserves during the French railway strike of 1910, to make the men perform as soldiers duties they had refused to do as railway employees, was a marked restriction on freedom to strike. Ad hoc measures such as these, however,

are open to grave objections. They are invoked, not to prevent a strike taking place, but to end one already declared, and this at a time when a great deal of mischief has been done; they are applied as a rule in times of panic, and, like all action at such times, are liable to look only to present considerations -the necessity of ending the strike-and to ignore important ulterior consequences; and they tend to produce an acute sense of grievance on one or both sides, for at such times feeling runs high and is uncontrolled by reason. Thus, in order that intervention may be successful the State has to make a strong show of authority, to the point of using its military forces, and though in some cases ad hoc action by the State may give the parties an excuse for making peace, in general it is both expensive and inadequate. It is important, therefore, to consider whether it is possible and desirable to place permanent restrictions on freedom to strike or lock-out which would be both more effective and less costly than ad hoc interference.

There is ample precedent for such a course in the practice of European States, of the Australasian Colonies, and of Canada and the Transvaal.

In these countries the laws which restrict freedom to strike or lock-out fall into two main groups, according to the aim which they have in view. The injury done by a strike or lock-out consists partly of the loss falling upon the disputants themselves, together with the evil involved in the breaking of social peace; and partly of the burden thrown upon consumers, including persons engaged in other industries, by the interruption in the supply of a particular article. Thus a law may be primarily intended to regulate the relations of parties to an industrial dispute in their own interest by introducing the rule of law into the settlement of their quarrels; or it may be intended to secure continuity of service to the public. As a rule, existing laws embrace both these aims, but in practice one or other is predominant.

The most important laws primarily designed to secure continuity of service to the public are to be found in various European States, in Canada, and in the Transvaal; while the laws which primarily seek to regulate industrial relations are to be found in the Australasian Colonies. Formerly, the penal codes of the leading European States made it illegal for work

people or employers to combine for the purpose of enforcing demands connected with wages and conditions of employment by means of strikes and lock-outs. The repeal in 1864 by France of the Articles in her Code to this effect was the forerunner of repeal in other continental States, and freedom to combine for the purpose of striking and locking-out has now been formally or tacitly conceded. In some countries, however, this freedom is still restricted in the case of persons engaged in certain industries. In Germany, Austria, and Belgium stringent control is exercised over combinations of employees in the post office, telephone, telegraph, and railway services, and in Germany undertakings carried on by State or local authorities have been held by the Courts not to be 'industrial' and therefore not to fall within the sections of the Imperial Code which specifically grant freedom to strike. The general principle of administration in these three countries is that those engaged in the public service or upon railways must give up their freedom to combine for improving wages and conditions of employment. In Germany, rules for admission to the public service are laid down, which practically prevent an employee belonging to a union not approved of by the authorities, and membership of such a body makes it very difficult to attain the coveted status of a Beamter (official). The Federal and State Railway administrations not only require to be informed of proposals by the staff to form a trade union, but, when it comes into existence, supervise its by-laws and meetings, and so effective is this regulation that 90 per cent. of the organised railway servants of Germany belong to unions, the by-laws of which specifically waive the right to strike. In Belgium there is similar supervision of combinations of employees in the postal, telegraph, telephone, and railway services. In Austria all trade unions are required to send copies of their by-laws to the political authorities, and if these are considered dangerous or illegal' the union is either dissolved or its formation is prohibited, the administration of the law being especially stringent in the case of the public services and railways.

There is little doubt that the policy of these three countries has been successful in its object, but the scope for its application is clearly very limited. The history of laws against combination shows clearly that the restriction can only be

made effective by giving some quid pro quo to the employees in the form of more favourable terms of employment than obtain elsewhere. These differential advantages increase the reluctance of workpeople to jeopardise their employment by disobedience to rules and, if a strike does take place, diminish the solidarity of the strikers and make it easier to replace them. In practice, however, such advantages can only be given in State-controlled industries, and it is therefore only in these that effective regulation of combination can take place. But the more widely industry is nationalised, the more expensive does it become to give these differential advantages, while in cases where freedom to combine is highly valued they would have to be greatly increased. Continental experience therefore gives no warrant for the view that nationalisation of industry coupled with restrictions on freedom to combine affords a solution of the strike problem. In Germany, Austria, and Belgium the social prestige attaching to State employment keeps the cost of controlling combination within reasonable limits; but where, as in English-speaking countries, State service is less esteemed and freedom to combine is more valued, the inducement to surrender this freedom would have to take the form of much higher wages or much shorter hours. In this country, therefore, though strict supervision of combination among State employees would probably lessen the risk of their striking, its expense might outweigh any advantages secured.

The laws of European States which directly prohibit strikes and lock-outs, though numerous, are unimportant and have been little used. In Italy, strikes of railway employees are forbidden unconditionally under penalty of degradation, dismissal, or loss of superannuation benefit; but the value of the law has never been tested, and it is generally believed that the sanction for observance is quite inadequate. In Belgium, in addition to the laws restricting freedom to combine, strikes of railway employees and other civil servants are forbidden, but the general observance of this law is said to be due not to the penalties it imposes, but to reluctance to risk the loss of State employment. The railway strike of 1903 in Holland led to the passage of an Act imposing penalties on railway employees concerned in a strike, but the concessions made in 1903 have prevented any serious unrest and the law has never

been invoked. In Russia, strikes are forbidden in 'undertakings 'having a social or governmental character,' but in practice, the suppression of strikes has been secured by the executive action of the police. The laws of Spain and Portugal both require a minimum period of notice to be given before a strike is declared which will affect the supply of necessaries such as light, water, and railway services, but recent industrial disturbances in those countries have been met, not by the law but by the use of the military; and the law of the Canton of Geneva which forbids suspension of work in order to modify an award of the Wages Board set up by the law has no penalty attached, and is therefore nothing more than a pious expectation.

More interesting than these laws, but chiefly of value as an example of what to avoid, is the doctrine laid down by some of the United States Courts that a strike is illegal if it is declared to gratify a malicious motive or to secure unreasonable or unfair ends. Administration of the law on these lines has proved impracticable. As a famous English judge remarked, 'The Devil 'himself knoweth not the hearts of men'; and in the absence of any satisfactory external test of motive, or of reasonableness and fairness, a law against strikes based on differences of motive or intention is almost bound to be unworkable. For this reason, the suggestion often made that prohibitions of strikes. should be limited to those intended to 'hold up' society cannot be regarded as practical politics, for though it may be argued that strikes involving several industries simultaneously have this object, in fact they may be aimed solely at employers, while a sectional strike may well be directed against society as a whole.*

The only laws directly prohibiting strikes and lock-outs, of which experience can be regarded as at all useful, are those of the English Colonies, and these therefore claim somewhat detailed consideration. The law passed in Canada in 1907 served both in aim and machinery as a model for the Transvaal Act of 1909, and the two may therefore be conveniently described together. Their chief object is undoubtedly to secure continuity of service in certain important industries, but they differ from European laws in that they also aim at settling

* For example, the strike of the French miners at Carmaux in 1891 to obtain manhood suffrage.

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