How far we have come; trade unions and labour law

I came across this quaint extract from a Federal Court appeal judgement which inter alia was required to look at the law about trade union activity.

“At common law, a combination of workers to increase wages or otherwise to improve working conditions and health and safety at work would be regarded as a criminal conspiracy: R v Journeymen-Taylors of Cambridge (1721) 8 Mod 10; 88 ER 9; Amalgamated Society of Railway Servants v Osborne [1910] AC 87. It was to remove the fear of such criminal prosecution that legislation was enacted in the United Kingdom in relation to such combinations: see The Combination Act 1824 (5 Geo. 4, c. 95) (UK), The Combination Act 1825 (6 Geo. 4, c. 129) (UK) and The Conspiracy and Protection of Property Act 1875 (38 & 39 Vict. 86) (UK). In the same decade as the last mentioned statute was enacted in the United Kingdom, and not by coincidence, that country’s parliament also enacted The Trade Union Act 1871 (34 & 35 Vict. C. 31) (UK) and The Trade Union Act 1876 (39 & 40 Vict. C. 22) (UK) which legalised trade unions for certain purposes but still left them unable to enforce certain of their rules, for example, that members would not work except under certain conditions, because these were regarded as an unlawful restraint of trade: Hornby v Close (1867) LR 2 QB 153. The Australian colonies soon replicated locally this late nineteenth century, United Kingdom legislation providing for the legalisation of trade unions: see, for example, the Trade Unions Act 1886 (Qld). In turn, from the earliest days of the federal industrial system, the Commonwealth Parliament has provided for the registration of industrial organisations (s 55, Commonwealth Conciliation and Arbitration Act 1904 (Cth), as enacted (Conciliation and Arbitration Act)) and for their participation in the resolution by conciliation and arbitration of federal industrial disputes (ss 19, 22 and 26, Conciliation and Arbitration Act, as enacted). The Fair Work (Registered Organisations) Act 2009 (Cth) (FWROA) and the FWA provide respectively for the registration of industrial associations and for their participation in a wide variety of ways in industrial conciliation and arbitration proceedings and for their undertaking other representational roles.”


Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCAFC 208 delivered 25 November 2020 per Collier, Logan and Griffiths JJ