This clause became s.6 (l) of the original 904 A ct

2 There is no admission that the 1988 law is merely a renaming of the 1904 law. But it has been argued that it was little more than "a major restructuring of ... the [1904 Act]" (see Mitchell, 1988: 501).

In Nigeria the relevant expression of this object began in 1968 with the enactment of a law entitled Trade Disputes (Emergency Provisions) Decree 1968. Unlike the Australian law, this law did not contain any section enumerating its objects. However the preamble clearly suggests what its central motivation was. It states: "Whereas it is expedient during the present state of emergency in Nigeria to make transitional provisions for the settlement of trade disputes arising within the period of such emergency: THE FEDERAL MILITARY GOVERNMENT therefore hereby decrees as follows:-". The text of this Decree shows that the nature of the dispute-settlement foreshadowed by this preamble involved some restriction upon direct action, unprecedented in the history of the Nigerian labour laws.

The thin veil of "provisions for the settlement of trade disputes" was soon removed by the amending Decree No. 53 entitled Trade Disputes (Emergency Provisions) (Amendment) (No. 2) Decree 1969. The first section of that Decree provided outright for the banning of strikes and lock-outs. The veil was later to be restored in the Trade Disputes Act 1976 - a consolidating or cumulative law, incorporating the 1968 and

1969 Decrees. Its explanatory note employs the disguising phraseology: "the Act makes fresh provisions with respect to the settlement of trade disputes However, as will be shown below, no emphasis is diverted from the prohibition of industrial action, thus keeping the motivation for the legislation which began in 1968 similar to the motivation for the Australian law.

In Australia, Part II of the original Act, entitled "Prohibition of Lockouts and Strikes in relation to industrial disputes", expressly banned direct industrial action. The provisions of this part were made more elaborate by legislation passed in 1918 under a non-labor government led by William Morris Hughes, and in 1926 and 1928 under another non-labor government led by Stanley Melbourne Bruce. While this elaboration may appear to be a "conservative way" of getting at labour, what the terms of these early arbitration statutes betray is "a general feeling that the existence of a right to

strike was inconsistent with the whole basis of a compulsory arbitration system" (Sykes, 1980: 329).

The prohibitions were repealed in the 1930 amendment by a Labor government, led by James Henry Scullin. However a provision was introduced at the same time which penalised union officers for aiding and abetting industrial action (see s. 138 of 1904 Act; Brooks, 1986:277), and the possibility continued to exist for inserting clauses in awards (i.e bans clauses) that parties to such awards shall not take part in industrial action, the contravention being treated as a breach of award (Portus, 1971: 89). This anti-industrial action provision in awards was held to be valid by the High Court in

Seamen's Union v. Commonwealth Steamship Owners' Association (1936) 54 CLR 626. The decision was later endorsed in R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1950-51) 82 CLR 208 and R. v.

Spicer & Ors; Ex parte Seamen’s Union of Australia (1957) 96 CLR 341. The insertion of a bans clause by an arbitrator or the commencement of the enforcement proceedings by an employer against a breach may be a matter of discretion. But the provision for the bans clause in the law implies at least discouragement of industrial action.

In 1977 the Conciliation and Arbitration Act 1904 was amended to insert a definition of "industrial action" in s.4 which, for all intents and purposes, cast a very wide net upon "objectionable" industrial behaviours of workers. And in 1979 s.25A was added to the Act restraining the Commission from making an award "in respect of a claim for the making of a payment to employees in respect of a period during which those employees were engaged in industrial action".

Also in 1977, s.45D was inserted into Commonwealth legislation - Trade Practices Act 1974 - to prohibit secondary boycotts by unions. Founded upon the Report of the Trade Practices Review Committee (the Swanson Committee) which, among other things, examined the "development of a free and fair market", the section "extends anti-trust laws to trade unions, it prohibits secondary boycotts in certain circumstances and it

provides for a liability in a union for any loss or damage caused by individual members or officers acting in concert" (Brooks, 1986: 272). The insertion of s.45E in the same legislation in May 1980 further strengthened this type of prohibition^. There was a concomitant amendment to the Conciliation and Arbitration Act 1904, inserting Division 5A to grant the Arbitration Commission jurisdiction over disputes relating to boycotts; but this was not to affect the operation of the Trade Practices Act (s.88DG of the 1904 Act; see also s. 162 of the Industrial Relations Act 1988).

There has been other prohibitive legislation in respect of industrial action in Australia, some of which is still operational. Outside the industrial relations legislation, there is the Crimes Act 1914 (Cth) which allows for the imposition of penalties for threats, intimidation and boycotts in relation to interstate and overseas trade and commerce (see ss.30j, 30k). There is also the Commonwealth Social Security Act 1947, s. 107 of which disqualifies for unemployment benefits persons whose unemployment results from engaging directly (or indirectly through membership of union) in industrial action. S.66 of the Public Service Act 1922 prohibits public servants from engaging in industrial action. More specifically it deems strike to be an illegal action and renders public servants who engage in strikes liable to summary dismissal. In the period of 1939-45 "strikes were or could be made illegal under various National Security Regulations ... [providing] power to make employees liable for service in the armed forces" (Portus, 1971: 90). The National Emergency Coal Strike Act 1949 was designed to deal with the strikers in the coalfields: union funds were frozen; unions were fined heavily; union officials were gaoled.

Two other Acts regulating, in a prohibitive manner, industrial action were the

Commonwealth Employees (Employment Provisions) Act 1977 and the Public Service and Statutory Authorities Act 1980. Both were introduced by the Liberal-National coalition Fraser Government: the former provided sweeping stand-down powers to deal with the tactics whereby the Commonwealth public servants relied on "partial work