The Gazette 1971

Trade Disputes and the Law

Dr. Paul O'Higgins,

Fellow of Christ's College, Cam-

bridge, spoke on Sunday morning on "Trade Disputes

and the Law". It was stressed that few lawyers had

practical experience of industrial relations, and there

are few legal experts on labour law. There is an unfor-

tunate traditional working class antipathy to the inter-

vention of lawyers in labour disputes. The current

labour legislation is based upon the following policy

considerations.

(1) The best method of regulating labour relations is

by voluntary collective bargaining.

(2) It is therefore necessary for trade unions to exist

and to give them the full legal protection afforded by

the Trade Disputes Act, 1906.

(3) There must be freedom of industrial action on

both sides—freedom of employers to lock-out, and free-

dom of employees to withdraw their labour.

Here there is a judicial tendency to grant compen-

sation to any person who suffers financial loss. Unfortu-

nately it is not possible to have effective strike action

without loss to others, such as employers or even the

community at large. As Lord Wright said in the Harris

Tweed case (1942), "the right of workmen to strike is

an essential element in the principle of collective

bargaining". The present worldwide upsurge of unrest

and strikes has caused a change of judicial attitude

which some consider confused. Workers are alleged to

wish to play a greater part in making vital decisions,

and not leaving their grievances to employers and

professors. When governments attempt to impose an

incomes policy of wage restraint, they have made the

public sector the pace setters and these public servants

fall behind others in wage levels. Large international

industrial action has been met by increasingly hostile

public oipnion ventilated by the press and other media

of communications hostile to trade unions. Undoubt-

edly the public does not want to tolerate strikes in

certain essential industries. It is essential to the public

to ultimately prevent the occurrence of true emergencies.

Contravention of Social Charter

But, in democratic states, the undeniable inconveniences

of strikes are part of the price one must pay, Ireland

signed the European Social Charter, but a committee

of experts found that it had contravened the right to

strike guaranteed in Article 6 in three respects :

(1) Under the Trade Union Act, 1941, the protection

given to strike action is confined to trade unions who

have negotiating licences.

(2) Cases like

Smith v Beirne

(1955) and

B and I

Steampacket v Branigan

(1958) placed many employees

such as nurses and schoolteachers outside the protection

of the Trade Disputes Act, as they were not deemed

"workmen".

(3) It is unlawful for public servants to strike. The

principle of collective bargaining, however, involves

that strike action, preferably controlled, should take

place. Some hold that actual loss of production should

be permitted in certain circumstances.

Educational Company v Fitzpatrick

(1961), the

majority of the Supreme Court in its wisdom decided

that it would be a contravention of the fundamental

Constitution not to allow to persons the freedom to join

—or not to join—trade unions, and that it was a contra-

vention of freedom of choice to compel anyone to do so.

It followed that a picket set up to enforce this

alleged constitutional right of compulsion to join

a union could not but be deemed a nuisance.

Some writers and trade unionists had criticised this

decision as an alleged infringement of the European

Convention of Human Rights, on the ground that

picketing is a combined exercise of the right of freedom

of expression and the right of freedom of association.

Some countries, like New Zealand, where strike action

is illegal have bad strike records. In Sweden, there were

many strikes to 1938, when Swedish employers and

trade unions entered into an agreement for the mutual

settlement of disputes. In the European Community

countries, where there is a good strike record, the wor-

kers have a greater say in the making of decisions, and

the rights of employers are restricted. Many strikes over

dismissals or discipline are unfortunately caused by the

lack of properly and jointly negotiated rules.

Objective of Donovan Report

Paragraph 192 of the Donovan Report sets forth the

following objectives :

(1) To develop comprehensive and authoritative col-

lective bargaining machinery at company or factory

level.

(2) To develop joint procedures for the rapid and

equitable settlement of grievances.

(3) To conclude with union representatives agree-

ments regulating in detail the position of shop stewards.

(4) To conclude agreements about the handling of

redundancy.

(5) To adopt effective rules and procedures governing

disciplinary matters, including appeals.

Thus the primary responsibility for good industrial

relations rests upon management, and in Britain the

law was regarded merely as an auxiliary vehicle until

the recent Industrial Relations Bill was introduced. We

must decide whether we should necessarily base our

legislation as heretofore on British collective bargaining

policy principles, or whether we should call on the law

in the future to enforce those principles more drastically.

The courts have an unenviable task, inasmuch as the

common law is often at cross purposes with the legis-

lative policy of collective bargaining; as Mr. Justice

Gavan Duffy stressed in

Cooper v Millea

(1938), impor-

tant questions as to how far organised labour may go

have had to be decided by the conceptions of individual

judges. It will be necessary to consider whether the

circumstances in which it would be unlawful to strike

should replace collective bargaining. It must be recog-

nised that the law and society are powerless to limit the

activities of workers, if they deliberately endeavour to

act unlawfully.

In answer to questions, Dr. Paul O'Higgins stressed

that a cooling off period would work if it were to enforce

compulsory negotiation, but not otherwise. Adequate

machinery should be provided to settle grievances. The

fact that pickets have to be sanctioned by the Irish

Congress of Trade Unions is most useful. On the Con-

tinent, many questions of labour relations have to be

determined by joint agreement, and a conciliation mach-

inery, as well as labour law judges are provided. As the

law cannot solve all disputes, the lawyer has to make

up his mind how far legislation would be useful.

The Swedish joint agreement of 1938 only extended

to the private sector, and the public sector was excluded:

hence the recent strike of civil servants. The Swedish

Government stated they would take strong measures

unless an agreement can be reached to establish a

system of voluntary arbitration. In order to be legally

binding, collective agreements need not necessarily be

contracts, but should then be regulated by statute. In

Britain, it will henceforth be possible to reduce the

number of unions, because the registrar can declare a

particular union to be the union which must deal with

a particular group of workers.