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mittee of the Congress were instructed to use their utmost endeavors to have the anti-union clause of the combines act repealed.1 Apparently the protests of the unions carried weight for the offensive section was omitted when the criminal laws were consolidated in the Criminal Code of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

3 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.

General Assembly of Nova Scotia in 1777 (c. 8), following closely an old Elizabethan statute (1562, c. 4). It required that

as soon as may be, after the first day of July next, the Justices of the Peace in the several Counties in this Province, and in the Townships impower'd by Law to hold Special Sessions, shall meet together at such places where the Sessions of the Peace are usually held, and also within six Months thereafter, taking into Consideration, the circumstances of the times and prices of Provisions, Assess the Wages of all Artificers and Labourers, according to the best of their Judgement for any Labour or Work to be done, by the Day, Week, Month, or Year.

Employers who paid wages in excess of the fixed rate could, on complaint before two justices of the peace, be fined not less than five pounds and not more than fifteen pounds and workers accepting higher wages could be fined not more than forty shillings with a penalty of one month in jail if the fine were not paid. The act was to remain in force for one year and until the end of the session of the General Assembly then next following.

The combination act passed in Nova Scotia in 1816 (c. 27) was entitled "An act to prevent unlawful combinations of master tradesmen, and also of their workmen and journeymen." The five sections of the law were taken practically without change from the English general combination act of 1800 (40 Geo. III, c. 106) which forbade all combinations of journeymen. Both acts also prohibited combinations of employers, but this provision of the law was disregarded in England at least.1

According to the preamble of the Nova Scotia act, “great numbers of Master Tradesmen, Journeymen and Workmen,

1 Sidney and Beatrice Webb, The History of Trade Unionism (rev. ed., New York, 1920), p. 73.