Unions emerged as a new economic and social force in the latter decades of the nineteenth century. Existing elites saw unions, especially when they became involved in industrial action, as a threat to their dominance and looked for means to control and/or contain their activities. Gary Mucciaroni has examined the experiences of Australia, New Zealand, Britain, America, and Canada in seeking solutions to this challenge, which he describes as the labour question.

He maintains that these nations ‘[a]ll faced serious industrial relations crises at approximately the same time – between the last decade of the nineteenth century and the first three decades of the twentieth century’ (pp. 6–7). This does not square with his analysis of American developments with the passage of the National Labor Relations Act (1935) (Wagner Act) in the 1930s and Canada in the 1940s.

Mucciaroni says the development of the respective solutions resulted from the interactions of five key actors – ‘employers, trade unions, political parties and public officials, and…reformers’ (p. 22). To him, ‘public officials’ are bureaucrats, and reformers are middle-class intellectuals, sympathetic to the cause of labour. In listing his key actors, he has ignored ‘courts’ who have and continue to play a significant, if not crucial, role in the history of unionism. If nothing else, courts, with the exception of Britain, are enshrined in constitutions and are independent and permanent. What a bureaucracy can and cannot do is ‘determined’ by legislation, and their direction can always be changed, if not abolished. Mucciaroni also ignores the role of conservative, anti-union reformers, lawyers, and the like who advise employers on how to take on, constrain, and defeat unions.

Mucciaroni distinguishes between four solutions to the labour question. The first is repression where ‘employers and the state use a variety of means to block labour’s demands to organize, have their organizations recognized, and represent workers’ interests’ (9). This has basically been the situation in America with the exception of approximately two decades after the Wagner Act – the National War Labor Board during World War II (Schatz, Reference Schatz2021) and for several years after the war. Mucciaroni would disagree with the notion of America returning to repression after these years.

Voluntarism refers to the British situation following the 1901 Taff Vale decision and the subsequent passage of the Trade Disputes Act (1906), removing the ability of the courts to become involved in industrial disputes; such matters should be left to the parties to resolve voluntarily.

Legalism is similar to voluntarism in that it is up to the parties themselves to resolve disputes. It is a system, however, that emerges where voluntarism is not possible. Mucciaroni has in mind here America after the passage of the 1935 National Labor Relations Act (Wagner Act) and, to a lesser extent, Canada in the 1940s. The Canadian reforms included voluntarist elements that had been established in Western Canada in the 1910s. For Mucciaroni, legalism ‘establishes an elaborate framework for industrial relations that includes defining rights, obligations and processes that each side must follow…While voluntarism has a permissive orientation, legalism has a promotional one’ (12).

Statism refers to a situation where the state plays an active role in establishing judicial or administrative bodies in resolving disputes. The key for Mucciaroni here is the compulsory arbitration of disputes, which was developed in Australia and New Zealand in the years before and after the beginning of the twentieth century.

Is it worth noting that all four of the systems that Mucciaroni identifies are legislatively based? His notion of the law here seems to be one of legislation. As already mentioned, the courts (which Mucciaroni does not include as an actor) can and have played a crucial role in the lot of unions.

In a footnote, Mucciaroni points to how the Webbs’ discussion of the ‘Method of Collective Bargaining’ (Webb and Webb, Reference Webb and Webb1911, 173–221; also see 222–246) played a ‘critical’ role in his thinking on voluntarism (275n). A reading of this material reveals that much of the Webbs’ discussion of collective bargaining occurred alongside an examination of Australia’s early experiences with conciliation and arbitration. The Webbs saw conciliation and arbitration as complementing collective bargaining, not as an alternative. They observed that ‘the machinery for collective bargaining must be regarded as extremely imperfect…carried on in a haphazard way with the most rudimentary machinery…Much of what is called Arbitration or Conciliation…amounts to nothing more than organised Collective Bargaining’ (Webb and Webb, Reference Webb and Webb1911, 204, 223n). This serves to undermine Mucciaroni’s distinction between voluntarism and statism.

Mucciaroni devotes most of his analysis to describing the events that led up to the establishment of the ‘procedural regimes’ in the respective nations. The only exception to this is the British case where he examines how the use of conciliation and voluntary forms of arbitration were employed in the twenty or so years after the Trade Disputes Act (1906), just as they were before. In this sense, the Trade Disputes Act (1906) is just another step along the evolutionary path of a system that was already in place.

The combination of conciliation and arbitration with collective bargaining raises the question of what extent can his notion of compulsory arbitration, in fact, be regarded as being ‘compulsory’. Mucciaroni does not examine how the Australian system, or for that matter America and Canada after they adopted legalism, operated. He has one brief mention of Henry Bournes Higgins (74) who is universally regarded as a key figure in the operation of Australian conciliation and arbitration. He has not examined Higgins’s series of articles, entitled ‘A New Province For Law And Order’ published in the Harvard Law Review (Higgins, Reference Higgins1915, Reference Higgins1919, Reference Higgins1920).

Higgins saw arbitration as providing a substitute for industrial conflict declaring that ‘you cannot have [an] award and strike too’ (Higgins, Reference Higgins1915, 29). The meaning of this is that unions could use strikes if they believed they would be successful. If they were not and they sought relief from an arbitration court – ‘the graveyard of disputes’ – they would have to desist from strike action. He also said, ‘The ideal of the Court is a collective agreement settled, not by the measurement of economic resource, but on lines of fair play’ (Higgins, Reference Higgins1919, 190).

While he regarded the minimum, or living wage, as sacrosanct, when it came to the wages of higher, more skilled work, he ‘would follow the distinctions in grade between employees as expressed in wages for many years’ (Higgins, Reference Higgins1915, 16). In other words, such levels would be determined according to voluntarism. He was also loath to interfere with managerial prerogatives. ‘It is well known that the Court is very chary about dictating to those that had to direct the work as to the mode of carrying it out, and that it will not dictate conditions unless it is clearly shown that the mode adopted involves undue pressure on human life’ (Higgins, Reference Higgins1919, 196).

In 1954, the American scholar Mark Perlman published a work on the operation of Australia’s federal tribunal. He maintained that the key to its success resulted from ‘fulfilling the demands of the parties’. He added that ‘The “independent variable” is what the parties need and want; the judge’s reaction in the specific instance, his use of judicial notice, is the visible result’ (Perlman, Reference Perlman1954, 39). This is more consistent with an approach based on voluntarism, not statism. Possibly the only time that the major federal tribunal behaved in a way that was consistent with statism in Australia was during the wage indexation experiment from 1975 to 1981 and the Accords from 1983 to 1996, where the tribunal sought to control ‘everything’, both procedurally and substantively in determining wages and working conditions (Dabscheck, Reference Dabscheck1995).

Mucciaroni provides an extensive analysis of events in the decades before America adopted the Wagner Act. He sees the intransigence of employers, aided and abetted by the courts, resulting in the repression of unions. This changed in the 1930s with a resurgence in unionism and industrial conflict and the activity of reformers, which resulted in considerable legislation including the National Labor Relations Act (1935) (Wagner Act). His account of the American situation finishes with the Supreme Court ruling that the Wagner Act was consistent with the Commerce Clause of the American Constitution (NLRB v Jones & Laughlin Steel, 1937).

The question is whether you would expect employers implacably opposed to unions and courts with their tradition of anti-unionism to give up their opposition and just go away. Would they wait their time and look for other means to reassert their dominance? As early as 1938, the Supreme Court handed down a decision that enabled employers to offer permanent employment to workers hired to replace workers on strike (NLRB v Mackay Radio & Telegraph, 1938) – a decision in time that would basically eliminate the ability of workers and unions to strike. Klare (Reference Klare1978) saw Mackay Radio as part of a series of decisions, in the period 1937 to 1941, where the Supreme Court set about deradicalizing the Wagner Act.

The need for production and industrial peace during World War II, the activities of the National War Labor Board, and financial and other support from the federal government ‘encouraged’ employers to put their anti-unionism on hold. Those who had been ‘members’ of the ‘Labor Board Crew’ also played an important part in several industries as mediators and conciliators following an end to hostilities (Schatz, Reference Schatz2021). Employers, however, were not happy with Wagner and in 1947 were successful in introducing major changes that neutered its operation with the passage of the National Labor Relations Act (1947) (Taft–Hartley Act).

Mucciaroni notes that the Taft–Hartley Act ‘imposed a new set of restrictions on labor unions … but did not change the basic institutional relationships of the regime’. He adds, ‘few have viewed it as marking the end of the legalist regime and the beginning of something fundamentally different from it’ (19). This is wishful thinking. A number of writers have seen Taft–Hartley and a string of decisions by the Supreme Court as returning American industrial relations to its repressive roots (see Getman (Reference Getman2016), Cohen (Reference Cohen2020), Gould (Reference Gould2022), and Hartley (Reference Hartley2023)).

Mucciaroni has provided detailed accounts of how respective Anglophone nations adopted a particular set of procedural rules at different points in time. With the exception of Britain and to a limited extent Canada, however, he has not examined how these respective systems operated in practice. He has been concerned more with form than procedure. Systems of industrial relations can slip backwards and forwards between different forms. Those who are involved in the administration of such systems, arbitrators, and persons appointed to bodies such as America’s National Labor Relations Board can be passive or active, a ‘stooge’ for a particular party or the government of the day, and/or be ‘captured’ by the parties, pushing and pulling systems in different directions.

A fundamental question here is why would we expect the industrial relations systems of different nations to respond in the same way to what appear to be similar issues. Mucciaroni has examined five nations and has produced four results, which run foul of the statisticians’ rule of n-1. Australia and New Zealand adopted conciliation and arbitration tribunals at the same time with the behaviour of Australia’s federal tribunal for the most part, except for minimums, being consistent with voluntarism. British voluntarism was a continuation of trends that had been temporarily upset by courts. America had a short flirtation with legalism before returning to its long-term tradition of repression. And Canada adopted a system that combined legalism and voluntarism, in two tranches 40 years apart.