tion resolved to oppose some of the conventions vigorously,' the Congress constantly urged the Dominion and provincial governments to give effect to the draft conventions and recommendations 2 and proposed a conference of the Dominion and the provinces in the matter. Conferences were held in 1922 and 1923. In 1922 Mr. Tom Moore, president of the Trades and Labor Congress, was elected to the governing body of the International Labor Organization as a workers' representative and his influence has been exerted for greater recognition of its proposals.

In 1925 the Dominion Government ratified four of the draft conventions with regard to seamen adopted at the Genoa Conference in 1920 and the Geneva Conference in 1921. In the provinces first steps toward ratification have been taken by British Columbia, Nova Scotia, Saskatchewan and Manitoba. Since the war the Trades and Labor Congress has been pressing for a system of old age pensions and it has also had a part in the movement for greater uniformity in the labor laws of the different provinces.

'Labour Gazette, vol. xxi, p. 803.

2 Ibid., vol. xxi, p. 292; vol. xxii, p. 971; vol. xxiii, p. 1096.

3 Ibid., vol. xxii, p. 971; vol. xxiii, p. 1089; vol. xxiv, p. 855; vol. XXV, p. 172.

CHAPTER IV

Labor Not A COMMODITY

The guiding principle above enunciated that labor should not be regarded merely as a commodity or article of commerce. (Treaty of Peace: Article 427, 1.)

CANADIAN legislation has no such declaration as that in the Clayton Anti-Trust Act of the United States that "the labor of a human being is not a commodity or article of commerce." But the Trade Unions Act of Canada, passed in 1872, provided that

the purposes of a trade union shall not, by reason merely that they are in restraint of trade, be deemed to be unlawful so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise, or so as to render void or voidable any agreement or trust.

The act provided however that this protection should apply only to trade unions registered under its provisions and very few unions have registered. This limited protection was shattered in 1889, when it was stated in the anticombines law (c. 41) of that year that it should be construed as if this clause of the Trade Unions Act had not been enacted.

The Trades and Labor Congress of 1889, "recognizing the great injury done organized labor," instructed its legislative committee "to lose no time in securing, if possible, such legislation as will give organized labor at least a legal status, of which it has been deprived." 1 The executive com

1 Trades and Labor Congress, 1889, p. 24.

mittee of the Congress were instructed to use their utmost endeavors to have the anti-union clause of the combines act repealed.1 Apparently the protests of the unions carried weight for the offensive section was omitted when the criminal laws were consolidated in the Criminal Code of 1892.

In the later nineties the Trades and Labor Congress resolved that the unions should have specified exemption from the anti-combines clauses of the Criminal Code.2 This resolution became more determined when it was found in 1900 that the Department of Justice had given an opinion that the anti-combines legislation encroached on the exemption from the law of conspiracy granted by the Trade Unions Act of 1872.3

Then an interesting struggle between the Liberal House of Commons and the Conservative Senate developed. A government bill, favored by the commercial interests, proposed to restore the words " unduly " and " unreasonably " in their application to restraint of trade in the combines section of the Code and to strike out the word "unlawfully " in its application to conspiracy in restraint of trade and so to reduce the restraints in these matters. A bill on behalf of labor proposed to add to the combines section the clause: "Nothing in this section shall be construed to apply to combines of workmen or employees for their own reasonable protection as such workmen or employees." The proposal was finally passed in 1900 (c. 46) but only after being rejected three times by the Senate and when it was evident that unless the Senators concurred, the bill to relax the provisions on restraint of trade would be rejected by the Commons.

It was not until 1914 that the Clayton Anti-Trust Act purported to give American trade unions immunity from the "combination in restraint of trade" theory in the words:

1 Trades and Labor Congress, 1890, p. 32.

2 Ibid., 1900, p. 11.

8 Cf. infra, p. 122.

Nothing in the anti-trust laws shall be construed to forbid the existence and operation of labor, agricultural or horticultural organizations instituted for the purposes of mutual help and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade under the anti-trust laws.

While in the United States judicial interpretation has deprived labor of the gains expected under this law, Canadian trade unions have been given special immunity under all subsequent combines legislation. The Combines Investigation Act of 1910 and the Combines and Fair Prices Act of 19192 contained clauses declaring that their provisions in no way affected the Trade Unions Act, and the Combines Investigation Act of 1923 reproduced the clause with reference to non-application to trade unions, inserted in the Criminal Code amendment of 1900.

1 Cf. infra, p. 185. 2 Cf. infra, p. 186.

3 Cf. infra, p. 188.

CHAPTER V

FREEDOM OF ASSOCIATION FOR EMPLOYERS AND EMPLOYED

"The right of association for all lawful purposes by the employed as well as by the employers." (Treaty of Peace: Article 427, 2.)

This in respect to the employed should include agricultural workers on an equal basis with industrial workers (1921 convention).

THERE has been a very considerable development of association in Canada by both employers and workers, as the Department of Labor's annual reports on Organization in Industry, Commerce and the Professions and on Labour Organization bear witness. But for the most part, while employers' associations have frequently urged their views with regard to proposed labor legislation upon Parliament and the legislatures, they have been little used for the purposes of industrial relations. Legislation governing trade unions began with a British combination act, copied in Nova Scotia in 1816. Agricultural workers seem to have the same rights of association as industrial workers.1

FREEDOM OF ASSOCIATION FOR THE EMPLOYED

Conspiracy, Picketing and the Damage Suit

The common-law doctrine of criminal conspiracy was accepted in the early colonies of British North America and in Nova Scotia it was reenforced by a combination act passed in 1816. But even before this there was legislation to prevent workmen agreeing on wage rates, "An act for restraining the exorbitant price of labour," passed by the 1 Cf. supra, p. 43.