Henry Rogers Seager American Academy of Political and Social Science.

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Zealand or in New South Wales. Because of the political weakness
of organized labor in the United States, the drafting and the enforce-
ment of compulsory arbitration laws will doubtless, as a rule, be
under the control of persons not recognized as friends of organized
labor. Under such circumstances it may not be anticipated that
this legislation will be very distasteful to the business interests of the
nation.



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CANADIAN LEGISLATION CONCERNING INDUSTRIAL

DISPUTES

With Special Reference to the. Disputes Investigation Act

By F. a. Acland,
Deputy Minister of Labor, Ottawa, Canada

(Reprinted from The Canadian Law Times, March/1916)

Two statutes present themselves for consideration: (1) the
CancilicUion and Labour Ad; and (2) the Industrial Dispvies In-
vestigation Act, 1907. The Conciliation and Labour Act contains the
earliest Dominion legislation concerning industrial disputes. This
statute, in its present form, is a consolidation dating from 1906
of two earlier laws, the Conciliation Act and the Railway Disputes
Act.

The Conciliation Act was passed in 1900. It provided for thd
appointment of a Minister and Department of Labour with certain
prescribed fimctions, and for the institution under the supervision
of the minister of a system of conciliation boards for the adjustment
of industrial disputes. The statute, in so far as it related to con-
ciliation boards and industrial disputes, proceeded generally on the
lines of an English act. It will be interesting to glance at the con-
ditions in Great Britain producing the law which the Canadian act
foUows.

Conciliation committees or boards have, for more than half a
century, existed in mining and manufacturing districts of Great
Britain, springing up quite naturally and unofficially for the ad-
justment of the disputes necessarily growing out of an intense in-
dustrialism. Selected persons represented the varied interests of a
particular industry in a given district, — of textile working or coal
mining, for instance, in Lancashire or Yorkshire. The boards
assumed in time and in some cases a certain permanence of charac-
ter, while the chairmanship acquired almost a semi-judicial aspect.
When difficulty occurred in filling a chairmanship by agreement
the disputing parties fell into the habit of requesting an appoint-
ment by the government. The duty of making such appointments
was vested in the Board of Trade, and gradually there was created
a situation whereby the Board of Trade foimd itself in touch with

167



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158 l^HE Annals of the American AcADEilt

a group of expert adjusters whose success in the work entrusted to
them depended on their skill, tact and known integrity rather than
on any legal or formal authority. The element of legal compulsion
was not a factor in the settlement of industrial disputes which came
before these conciliation boards.

The machinery of the boards was developed and improved as
the years passed. The English Conciliation Act of 1896 confirmed
and encoinraged the system which had grown up. The work of the
conciliation boards aided in the settlement of many trade disputes,
and strikes or lockouts were prevented in these cases, but industrial
unrest kept pace, perhaps more than kept pace, with industrial
development. Some trades did not avail themselves of the methods
of conciliation boards and there was in such cases little to hinder the
rapid aggravation of small disputes into strikes or lockouts. In
some cases also where the boards existed their best efforts were futile
and the disputants resorted to the methods of the industrial battle-
field. Disastrous and even terrible industrial conflicts recurred from
time to time. The necessity of conciliation machinery increased as
the question of industrial relations pressed more and. more to the
front.

Calls on the British Board of Trade for expert adjusters, as-
sessors, etc., in industrial disputes which the disputants could not
settle directly, became more frequent, and in 1908 the machinery
relating to conciliation boards was further developed for the con-
stitution of a Court of Arbitration. For the purpose of this Court
three panels were formed: a chairman's panel, an employers' panel,
and a labour panel. By virtue of this new agency, on the applica-
tion of the parties to an industrial dispute, a Court of Arbitration
consisting of three or five members is nominated by the Board of
Trade from these panels, the powers of the Court corresponding
generally with those which a Conciliation Board had possessed.

Yet a further expansion in Great Britain of the conciliation
system was the establishment in 1911 of what was termed an
Industrial Council, composed of representatives of employers and
employes, with a Chief Industrial Commissioner; the Industrial
Coimcil was established '^for the purpose of considering and of en-
quiring into matters referred to them affecting trade disputes," etc.
Sir George Askwith, K.C., who became chairman of the council, had
been long a leading figure in the group of expert adjusters from



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Canadian Legislation Rjbgardino Industrial Dispxttbs 159

which the Board of Trade had been, on the request of the disputing
parties, selecting chairmen of conciliation boards.

It is of interest to note in passing that Sir George Askwith
visited Canada in 1912 for the purpose of investigating the nature
and operations of the Industrial Disputes Investigation Ad, 1907,
the Dominion statute which was now effective in these matters and
the enactment of which by Great Britain was being urged in some
quarters as a possible remedy for the disastrous industrial conflicts
which then were distracting that country. Apart, however, from
certain special legislation limited to the coal mining industry, and
consequent on the national coal mining strike of 1912, no further
legislation as to industrial disputes was enacted in Great Britain
until the outbreak of the war, when a measure was passed not far
removed in its general intent from that of the Dominion statute on
which Sir George Askwith reported.

Before leaving this aspect of the subject, it may be added that
at the close of 1914, 300 conciliation boards or courts were in exist-
ence in Great Britain; the same figure had obtained at the end of
1913. British oflScial reports show that, despite the efforts and
influence of these numerous conciliation agencies, there were 1,497
strikes or lockouts in Great Britain during 1913, with time losses
of nearly twelve million working days; for the corresponding year
in Canada the number of strikes was 113, with time losses of 1,287,-
678 days.

Let us return now to the Conciliation Act enacted by Canada
in 1900. The statute was obviously designed to promote in Canada
the establishment of conciliation boards on the lines of those found
in Great Britain. The meastire was destined to remain inoperative
in so far as it concerned conciliation boards; no tribunals of this
nature were established under its provisions. The act was not,
however, fruitless in its bearing on industrial disputes. Officials
of the newly established Department of Labour were required to
foUow closely the course of industrial disputes, not only for statis-
tical purposes, but from the point of view of public welfare. Offers
of mediation were made in serious disputes. The offers were fre-
quently declined and intervention was possible only by consent of
both disputants. Where mediation was accepted the department
seems to have acquitted itself creditably and the Deputy Minister
of Labour of that time (Mr. W. L. Mackenzie King) established some



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160 The Annals of the American Academy

reputation in the adjustment of industrial disputes. Dominion
oflScials had not previously made efforts in this direction. The
work thus accomplished was of some value, but the facilities of the
department were not large and no headway was, as we have seen,
made in the development of the conciliation board system whereby
local effort and influence might be sometimes e^ectively utilized
for the solution of a particular difficulty.

In 1903 was enacted the Railway Disputes Act, a measure apply-
ing, as its name suggests, to disputes in industries affecting the rail-
way service. The new statute invested the Minister with a limited
power of compulsion with respect to the establishment of concilia-
tion boards. Where a dispute existed between a railway company
and its employes, and either party to the dispute (or a municipality
concerned therein) asked that the dispute might be referred to a
board for adjustment, the act permitted the establishment of a
board without requiring the consent of the other disputant. If,
however, the establishment of a board was not requested, no board
could be established, and in any event the statute placed no re-
straint on the fight to strike or lockout. This measure remained,
on the whole, inactive, only one dispute being referred for adjust-
ment under its provisions down to 1907, when it was practically
displaced by new legislation. It is not impossible that the existence
of the statute may have exerted sometimes on the parties to a dis-
pute a silent pressure towards an amicable arrangement by direct
negotiation, but on this point there is no record.

In 1906 the two measures mentioned were consolidated for the
revised statutes of Canada and became known as the ConcUuUion
and Labour Act,

The year 1907 saw the enactment of the Industrial Disputes
Investigation Act, the scope of which is aptly indicated by its com-
plete title, ''An Act to aid in the prevention and settlement of
strikes and lockouts in mines and industries connected with public
utilities. '' The new statute contains the first limitation placed by
the Dominion Parliament on the right to engage in strikes or lock-
outs, the hmitation being confined to stated classes of labour. The
process of dealing with a dispute entails its reference for attempted
adjustment to a Board of Conciliation and Investigation formed on
the lines of the ordinary board of arbitration, with a nominee from
each of the disputants and a third member, the chairman, selected



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Canadian Legislation Regarding Industrial Disputes 161

if possible by joint agreement; failing a joint agreement as to the
chairmanship, the chairman is named by the Minister of Labour.
A strike or lockout in the industries indicated is unlawful, under
penalty, until the dispute in question has gone before the board.
The provisions of the Act have been recently extended to what
may be broadly designated as war industries in all their branches,
so that a lockout or strike in such industries prior to procedure
under the statute becomes unlawful.

It will be useful, before discussing the Dominion Act further,
to look broadly at the conditions elsewhere as to legislation on this
subject. The situation in the United Kingdom has been already
outlined. In the United States, as in the case of Great Britain, the
new Canadian law was made the subject of official inquiry. Dr.
V. S. Clark, a skilled investigator, visited Canada in 1908 and again
in 1909, with a view to ascertaining the adaptability of the statute
to the requirements and conditions of the United States. Dr.
Clark's reports are valuable treatises on the statute and its aims
and achievements, as at the time of enquiry. Similar enquiries into
the Canadian Act have been made by various states of the union.
The United States proceeded, however, on other lines, its efforts
culminating in what is known as the Newlanda Act of 1914, which
created a Board of Mediation and Conciliation, designed, like the
British Industrial Council, for the purpose of promoting industrial
peace and not imlike the British Industrial Council in its general
method of operation; the jurisdiction of the United States Board of
Mediation is, however, severely limited, extending only to disputes
involving employes of interstate railways. Like the British statute,
the measure is permissive, not compulsory. The legislation of the
states of the union, when it touches the subject of industrial dis-
putes, has not gone beyond efforts at conciliation and the provi-
sion in some cases of carefully devised machinery for that purpose.

A concise statement as to the situation in continental Europe
in these matters appears in a special report on legislation respecting
industrial disputes issued a year or two ago by the Labour De-
partment of the British Board of Trade:

AmongBt the foreign countries covered by this return, says the report, it will
be observed that in Europe there are nine, the statute books of which comprise
legislation specially designed to avert strikes on the part of those employed in
public utility services. While varying widely in range and stringency, these laws
I one characteristic in common: the workpeople to whom they relate 9re m



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162 Ths Annals of the American Academy

every caae pla4)ed on a footing different from' that of the general body of industrial
workers in respect to the right to engage in strikes, this right being either explicitly
withheld or dse subjected to specific limitations in its exercise.

Of the nine coimtries referred to, five have enacted laws absolutely prohibit-
ing workpeople employed in certain public utility services from engaging in strikes.
These countries are Russia, Roumania, Holland, Belgium snd Italy. In Russia
and Roumania, the law covers the whole field of what may be termed public utility
services, whether governmental or local. In Belgium, it applies to all persons in
the service of the state, including the railways, post office, telegraphs and tele-
phones; in Italy, it applies to all persons in the service either of the state or of a
railway company, while in Holland, only those employed on main lines of the
railway service are included. Three coimtries, viz., Spain, Portugal and the
Ottoman Empire, have enacted laws applicable to all public utility services, and
declaring concerted stoppages of work illegal, unless certain conditions have
previously been fulfilled. In Spain, the conditions are that notice of the strike or
lockout shall have been given to the authorities, either eight days or five days
beforehand, according to the nature of the undertaking, and that such notice be
accompanied by a statement of the cause of the strike or lockout. The Portu-
guese law insists on twelve or eight days' notice being given of the strike or lock-
out, according to the nature of the un4ertaking, and requires that such notice be
accompanied by a statement of the causes or objects of the strike or lockout. Un-
der the same law, all ''officials, public servants, or those receiving salaries from
the state" incur the penalty of dismissal, if they combine to suspend work.

The last <A the nine European countries that call for mention in this connec-
tion is France, where the only persons employed in public services who incur
legal penalties for participating in strikes are the engine-drivers, guards and
brakesmen actually in charge of trains, and the outdoor staff of the postal service.

While attempt to avert strikes and lockouts in public utility services by means
of special laws withholding or limiting the exercise of the right to strike are con-
fined to the nine countries just enumerated, there are two countries — Germany
and Austria — ^where, so far as the railway, postal and allied services are con-
cerned, the exercise of such a right on the part of the staff is rendered impossible
in practice by the policy pursued by the authorities towards any manifestations
of trade union activity among members of these services — a policy based on the
assumption that membership of a militant trade union is incompatible with loy-
alty to the department and with the safety of the state.

The British report contains a further paragraph showing that
permanent courts of arbitration "equally representative of the
interests of employers and of workpeople," especially for the pro-
motion of industrial peace, exist in Denmark and in the Swiss Canton
of Geneva.

There remain the British Dominions. Apart from the Do-
minion laws now under consideration there is little to be said of
Canada. In Ontario and Quebec there are laws providing ma-
chinery for conciliation purposes: the machinery is but little used.



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Cajiadian Legislation Regarding Industrial Disputes 163'

A more interesting statute is that of Nova Scotia^ dating from 1890
(amended 1900), which, applying to the coal mining industry only,
forbids a strike or lockout where one of the disputants calls for a
reference of the dispute to arbitration in the maimer provided;
where there is no request for arbitration there is no restraint on
strike or lockout.

South Africa needs but a word. In 19p9 the Transvaal enacted
a law adapted from the Canadian statute of 1907, and this measure
is understood to have remained effective under the South African
Union.

In Australia and New Zealand the situation is more intricate.
For twenty years the various Australasian States have shown ex-
traordinary activity in legislation concerning industrial disputes.
The writer of an Australian letter contributed so long ago as April
14, 1909,. to the Otago Witness, one of the leading journals of New
Sioaland, remarks: ''The Commonwealth and States will in a few
years be overlain with a web of industrial legislation and judicial
decisions which will tax the brain of the future European should
he endeavour to unravel it." The period subsequent to the date
of this comment has not been less fruitful than earlier years in in-
dustrial legislation in Australia, and with this warning before us it
will be perhaps wise to abstain from too close an inquiry into the
subject. The independent and original character of much of this
legislation is perhaps reflected in the view which finds expression
in a report issued in July last by the Government of Victoria on
" Anti-Strike Legislation " :

The lawB in parts of the world outside Australia, excepting perhaps Canada
and South Africa, are of little use as a guide, from the fact that conditions from
military and other points of view are so different. It is iateresting to note that
no two laws in Australia, nor, iadeed (so far as I can find), in the world, have
quite the same provisions against strikes and lockouts. This may b^ accounted
for in part by the different conditions, but it also suggests that anti-strike law
haa not yet evolved; that it is in its elementary stage; and that each country, as it
set about choosing its method, turned down every system aheady in existence
and proceeded to set up a new one of its own.

At another point in his report the writer credits the Canadian
Act of 1907 with having inspired not only the Transvaal Act of
1909, as mentioned above, but also the Queensland Act of 1912 and
the New Zealand Act of 1913, which, in what are perhaps their chief
features, approximate to the Dominion measure.



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164 The Annals op the American Academy

Of the abundant industrial legislation of Australasia it may be
said generally that while numerous statutes were enacted having
as their chief aim the elimination of strikes and lockouts, and in
many cases (as in New South Wales) expressly prohibiting them,
under severe penalties, the strike has by no means disappeared.
The Statistician of the Conmionwealth of Australia places the num-
ber of strikes and lockouts for Australia for 1914 at 334, involving
time losses of 942,000 working da3rs, as against 44 disputes only,
in the same year, for Canada, with its much larger population, the
Canadian disputes entailing time losses of 430,000 days. The com-
parison is yet more favourable to Canada if it is confined to the
State of New South Wales, where alone, in 1914, the strikes num-
bered 235, with time losses of 727,726 days.

Just why the dominions and states of the South Seas should
have shown so much greater activity in this field of legislation than
has been manifested by the Dominion and provinces of Canada
must remain a matter of interesting conjecture, but if the number
of strikes and lockouts is a criterion of industrial unrest, then the
figures quoted do not suggest that the comparative inactivity of
Canada has brought a severe penalty.

The Canadian statute of 1907 is then in agreement with the
laws of several countries in two important respects: (1) in being
applicable to industries connected with public utilities; (2) in de-
claring that strikes and lockouts may not occur legally in these in-
dustries until after efforts at adjustment through oflScial machinery
have been made. In some countries, however, the prohibition
goes beyond that of the Dominion law and is imconditional. The
Dominion statute is exceptional in being applicable to the mining
industry.

It was in 1906 that a prolonged strike in the Gait coal mines of
Lethbridge, Alberta, brought about a severe shortage of fuel in
southern Alberta and southern Saskatchewan. The Prime Minis-
ter of Saskatchewan, the province in which perhaps the difficulties
were most acute, asked the aid of the Dominion government and
the then Deputy Minister of Labour, Mr. W. L. Mackenzie King,
was despatched to the scene of the dispute, this action being taken
under the authority of the Conciliation and Labour Act, The
efforts of the Deputy Minister and the increasing evidence of
the hardships threatening the public combined to bring about a



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Canadian LegisLaoion Regarding iNDusTKtAt Disputes 166

settlement and the threatened fuel famine was prevented. Official
reports of the period show that the incident caused special
consideration to be given to the subject of industrial disputes
legislation with a view particularly to the prevention of strikes or
lockouts of such a nature as to jeopardize the public safety. The
classes of industry known generally as '^public utilities'' are, clearly,
those with which the public interests are most intimately identified.
The term "public utilities" is somewhat loose and its interpreta-
tion varies in different countries. In New Zealand, for instance,
bakers and slaughtermen (butchers) fall within the category, and
from the point of view of the prairie provinces in 1907 there was
much to be said for regarding the coal mining industry as a public
utility. The interpretation clause of the Canadian act is of some
assistance. The clause declares that ''employer" means ''any
person, company or corporation employing ten or more persons and
owning or operating any mining property, agency of transportation
or communication, or public service utility, including, except as
hereinafter provided, railways, whether operated by steam, elec-
tricity or other motive power, steamships, telegraph and telephone
lines, gas, electric light, water and power works." It was of course
inevitable that coal mines also were brought in. The statute pro-
hibits under penalty a strike or lockout in any of the industries in-
dicated until after the dispute which is in question shall have been
before the Board of Conciliation and Investigation, and it provides
for the establishment of a Board of Conciliation and Investigation
on the application of either party to a dispute. The composition of
a board was explained above.

The act gives the board the requisite powers for taking evidence,
etc. Proceedings are public or private as may seem expedient to
the board. The department pays fees and traveling expenses of
board members, witnesses, etc., and for necessary clerical work. If
the board by conciliatory effort brings the disputants together and
a working agreement restdts, the dispute manifestly is ended. If
this is impossible the board is required to make findings and rec-
ommendations showing how in its view a settlement should be
made. Provision is made for a minority report. All reports are
made public. The theory of the act is that the board's findings,
being based on what is presumed to have been a fair and impartial
investigation, will bring an informed public opinion to bear on the



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166 The Annals of thb American Academy

matters which have been in dispute, and that either of the dis*
putants who is unreasonable in his attitude will thus be induced to
yield a point and accept the recommendations of the board rather
than fly in the face of a public opinion which might be expected to
sustain the view of the board; acceptance of the findings, however,



Online LibraryHenry Rogers Seager American Academy of Political and Social ScienceAnnals of the American Academy of Political and Social Science → online text (page 16 of 91)