Hostname: page-component-cd9895bd7-jkksz Total loading time: 0 Render date: 2024-12-27T10:58:52.136Z Has data issue: false hasContentIssue false
  • English
  • Français

The New Structure of Labour Law in Britain*

Published online by Cambridge University Press:  12 February 2016

Wedderburn
Get access

Extract

The privilege of giving a lecture in honour of so great a jurist as Lionel Cohen demands of the lecturer a fitting and challenging subject matter. My tribute to his memory takes the form of choosing such a topic. For the structure of Labour Law in Britain today has the appearance of an absurd paradox.

On the one hand, labour law still rests upon the traditional concept of the primacy of “voluntary” collective bargaining between employers and independent trade unions. Other than in exceptional war-time periods, the law, both in statutes and in certain areas of judge-made common law, recognises the priority to be accorded to voluntary agreements and arrangements, even to that “custom and practice” which is at the heart of the way things really work on the British factory floor. The law does not regulate the pattern of “bargaining units” as in the United States; it regulates neither the nature nor the administration of the collective agreement, even on interpretation of “rights”. as in so many European countries and in Israel; it establishes no national minimum wage. The law does not “intervene”. it is said, in industrial relations.

Even the exceptions prove the rule. Nearly four million workers of our 24 million workforce have their terms of employment legally determined by Wages Councils set up by Ministerial Order under statute. These bodies, first established in 1909, have on them employers' and workers' representatives with independent members.

Type
Articles
Information
Israel Law Review , Volume 13 , Issue 4 , October 1978 , pp. 435 - 458
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1978

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See Kahn-Freund, O., Labour and the Law (2nd ed., 1977) 56 ff.Google Scholar

2 See Wedderburn, K.W., The Worker and the Law (2nd ed., 1971)Google Scholar Chap. 1.

3 Wages Councils Act, 1959. Legislation now provides for a “half way house” between voluntary bargaining and legal regulation, where a Wages Council converts itself into a “statutory Joint Industrial Council” without independent members: secs. 90–94 and Schedule 8, Employment Protection Act, 1975.

4 See the three volumes of B. Hepple and P. O'Higgins, eds., Encyclopaedia of Labour Relations Law (loose-leaf).

5 See Aaron, B. and Wedderburn, K.W. (eds.), industrial Conflict — A Comparative Legal Survey (1971).Google Scholar

6 See O. Kahn-Freund, “Labour Law” in M. Ginsberg (ed.), Law and Opinion in England in the 20th Century (now Chapter 1 in Kahn-Freund, Otto, Selected Writings, (Stevens, 1978Google Scholar) and Labour Law, Old Traditions and New Developments (1968); Lewis, R., “The Historical Development of Labour Law” (1976) 14 Brit. J. of Industrial Relations 1CrossRefGoogle Scholar; Wedderburn, K.W., “Labour Law and Labour Relations in Britain” (1972) 10 Brit. J. of Industrial Relations 270, 272–276.CrossRefGoogle Scholar

7 Sec. 3, Conspiracy and Protection of Property Act, 1875; now repealed and replaced by secs. 1–5 Criminal Law Act, 1977.

8 One real “privilege” does exist, namely the total immunity in tort for the trade union as such: sec. 14(1), Trade Union and Labour Relations Act (TULRA) 1974. But union officials or members enjoy no such total immunity, and the immunity of the union is therefore of little importance since it will stand behind its men; cf. Kahn-Freund, Labour and the Law 274; and for the historical roots of the immunity, see Wedderburn, , The Worker and the Law 315–321.Google Scholar

9 In Ginsberg, op. cit. supra n. 6, at 241 (now, Selected Writings at 22).

10 Contrast Quinn v. Leathem [1901] A. C. 495 (H.L.) with Reynolds v. Shipping Federation [1924] 1 Ch 28, and Crofter Hand Woven Harris Tweed v. Veitch [1942] A.C. 435, especially at 447, 463, 472, 479.

11 See Wedderburn, and Davies, , Employment Grievances and Disputes Procedures in Britain (1969)Google Scholar; Kahn-Freund, , Labour and the Law (2nd ed., 1977)Google Scholar Chap. 5.

12 Kahn-Freund, O. in Flanders, and Clegg, (eds.), The System of Industrial Relations in Great Britain (1954) 102–103.Google Scholar

13 Flanders, A., Industrial Relations — What is Wrong with the System (1965) 28Google Scholar; and see Wedderbum, on “Conflicts of Rights and Conflicts of Interests in Labour Disputes” in Aaron, B. (ed.), Dispute Settlement Procedures in Five Western European Countries (1969).Google Scholar

14 Ford Motor Co. Ltd. v. A.U.E.F.W. [1969] 2 Q.B. 303; and for the reasons for this remarkable development: Kahn-Freund, , Labour and the Law 125–129.Google Scholar

15 It will so remain to some extent even if sec. 109 of the Employment Protection Act (EPA) 1975 is brought into effect (which has not so far been done) by Ministerial Order.

16 Hutchins, & Harrison, , A History of Factory Legislation (3rd ed., 1926).Google Scholar

17 On the functions of the representatives see Safety Representatives & Safety Committees Regulations 1977, S.1.500. The new statute combines the approach of regulatory law with the promotion of consultation on safety matters at work by the enactment of rights for workers' union representatives.

18 Truck Act 1831, secs. 1–3; Truck Amendment Act 1887, sec. 2; Payment of Wages Act 1960.

19 Exceptionally the regulation is made a compulsory term of the employment contract (e.g., the “equality clause” of the Equal Pay Act, 1970 as amended in Schedule 1 to the Sex Discrimination Act, 1975; but the remedy even there is found via an Industrial Tribunal not the High Court).

20 See for example, on “Unfair Dismissal” TULRA 1974, Sched. 1 para. 13; and also Redundancy Payments Act, 1965, sec. 11; EPA 1975, secs. 28, 107, 118. The modern statutory provisions concerned with individual employment rights, in the various statutes between 1965 and 1975 are about to be codified in The Employment Protection (Consolidation) Act, 1978 which will come into force on 1 November 1978.

21 For a survey, see Hepple, B. & O'Higgins, P., Employment Law (1976).Google Scholar

22 See now the Contracts of Employment Act, 1972, as amended by the EPA 1975, Sched. 16, Part II.

23 Redundancy Payments Act, 1965, amended by EPA 1975, Sched. 16 Part I; Redundancy Rebates Act 1977, and S.I. 1321 of 1977.

In 1977, the number of redundancies was 267,233; the average payment was £620. The number of redundancies would have been higher but for the Temporary Employment Subsidy Scheme, under which the Government pays employers £20 a week for retaining certain workers who would otherwise be made redundant: in March 1978, 173,100 workers were covered by this schemes. Very recently there has also grown up a practice in the nationalised industries of the employing public corporation (in effect, the Government) negotiating with the relevant unions, payments for workers, who will be made redundant by plant closures, of sums much larger than the normal statutory maximum. In the steel industry for example such workers can receive up to £17,000. The schemes in shipbuilding have required legislation: the Shipbuilding (Redundancy Payments) Bill 1978.

24 Notably by TULRA 1974 Sched. 1.; and EPA. 1975, secs. 71–80 and Sched. 16 Part III. (All of which will be consolidated in The Employment Protection (Consolidation) Act, 1978).

25 See sec. 72(2) EPA 1975.

26 Secs. 78–80 ibid., supplementary TULRA 1974, Sched. 1 para. 6(4).

27 The very concept of “dismissal” is itself now the subject of complex case law, see Elias, P., “Unravelling the Concept of Dismissal” (1978) 7 I.L.J. 16.Google Scholar

28 Sec. 35 EPA 1975.

29 Secs. 22–28 ibid. See, as an example, Guarantee Payments (Exemptions) No. 15 Order 1978, S.I. 153, replacing the statutory rights with voluntarily bargained provisions.

30 Respectively secs. 29–33; and 70 ibid.

31 Secs. 53–56 ibid.

32 Secs. 57–62 ibid. See now “Time Off for Trade Union Duties and Activities” Code of Practice 3, Advisory Conciliation and Arbitration Service (ACAS) 1978, which is a guide to interpretation for the tribunals enforcing these sections: see sec. 6(ii) ibid.

33 See Wedderburn, , (1976) 39 M.L.R. 169.Google Scholar

34 For a comprehensive survey see Reid, Judith, “Women in Employment in the New Legislation” (1976) 39 M.L.R. 432Google Scholar, on the Equal Pay Act, 1970, Sex Discrimination Act, 1975; EPA 1975, secs. 34–52; and Social Security Pensions Act, 1975.

35 Sex Discrimination Act, 1975, secs. 71–73; Race Relations Act, 1976, secs. 62–64.

36 See Whitesides, K. and Hawker, G., Industrial Tribunals (1975).Google Scholar

37 Established under secs. 87, 88 EPA 1975. On the administrations of justice in these specialised courts see the illuminating U.K. National Report to the Munich Ninth International Congress of the International Society for Labour Law and Social Legislation, 1978, by P.L. Davies (forthcoming).

38 Contrast Devis and Sons Ltd. v. Atkins [1977] I.C.R. 662 (H.L.) with Cyril Leonard & Co. v. Sino Securities Trust Ltd. [1972] 1 W.L.R. 80 (C.A.).

39 Provisional figures for 1977 from Department of Employment Gazette (1977) vol. 85, pp. 495, 841 and 1278; and (1978) vol. 8b, p. 133. ACAS received 43.584 cases for assistance in conciliation: ACAS Annual Report (1977) 80.Google Scholar

39a A slight increase in formality is required in the document presenting a complaint by the Industrial Tribunals (Labour Relations) (Amendment) Regulations, 1978, S.I. 991.

40 The first was perhaps the Conservative Lawyers' pamphlet, , A Giant's Strength (1958)Google Scholar. See Wedderburn, , (1972) 10 B.J.I.R. 272–280Google Scholar; and Lewis, (1976) 14 ibid. 9–11.

41 Torquay Hotel Ltd. v. Cousins [1969] 2 Ch. 106 (CA.); Stratford v. Lindley [1965] A.C. 269 (H.L.).

42 Rookes v. Barnard [1964] A.C. 1129 (H.L.) — a “frontal attack on the right to strike”. Kahn-Freund, O., (1964) 14 Federation News 30Google Scholar; the statute was the Trade Disputes Act, 1965.

43 “Report of the Royal Commission on Trade Unions and Employers' Associations”. Chairman Lord Donovan, 1968, Cmnd. 3623, para. 190. On the arguments of the main schools of thought in the period 1965–1970 see McCarthy, W.E.J. and Ellis, N., Management by Agreement (1973)Google Scholar Chaps. 1–5; and Crouch, C., Class Conflict and the Industrial Relations Crisis (1977)Google Scholar Chaps. 8–10.

44 “Industrial Relations Bill: Consultative Document” issued in 1970 by the Government, para. 8.

45 See Davies, P.L., (1973) 36 M.L.R. 78–89Google Scholar; and Lewis, N., “Con-Mech: Showdown for the NIRC” (1974) 3 I.L.J. 201.Google Scholar

46 See Weekes, B., Mellish, M., Dickens, L. and Lloyd, J., Industrial Relations and the Limits of Law (1975)Google Scholar, on the history of this controversial statute.

47 On TULRA 1974 and its 1976 Amendment Act, see Wedderburn, , (1974) 37 M.L.R. 325Google Scholar; England, and Rees, , (1976) 39 M.L.R. 698Google Scholar; on the EPA 1975 see Freedland, , (1976) 39 M.L.R. 561CrossRefGoogle Scholar; Wedderburn, , (1976) 39 M.L.R. 169Google Scholar; Baker, CD., (1976) 5 I.L.J. 65Google Scholar. The new laws on collective labour law are likely to be codified in a further consolidation Act in 1979.

48 Compare with what follows the rather different problem areas identified by Kahn-Freund, in Labour and the Law (1977).Google Scholar

49 Sec. 13 of TULRA 1974 as amended by sec. 3(2) of the Amendment Act, 1976.

50 Sec. 29 TULRA 1974 as amended by sec. 1(d) of the 1976 Act; see generally Simpson, R., (1977) 40 M.L.R. 16.CrossRefGoogle Scholar

51 Beaverbrook Newspapers Ltd. v. Keys [1978] I.R.L.R. 34 (CA.); see too B.B.C. v. Hearn [1977] I.R.L.R. 269 (noted (1978) 41 M.L.R. 80).

52 Sec. 17 TULRA 1974 as amended by EPA 1975, Sched. 16, Part III, para. 6.

53 The Labor Injunction (1932; 1963 ed.) 201.

54 TULRA 1974, sec. 15; Broome v. D.P.P. [1974] A.C. 587 (H.L.).

55 Ibid. sec. 18(1).

56 On the repeal of secs. 5 and 6 of TULRA 1974 by the Amendment Act, 1976, sec. 1. The reports of the Independent Review Committee of the TUC can be found in the annual General Council's Report to TUC Congress from 1976 onwards.

57 Lord Denning M.R. has appeared to claim power to declare some union rules invalid on grounds of public policy: see Edwards v. SOGAT [1971] Ch. 354; but this does not represent the stronger line of authority, see Faramus v. Film Artists Assoc. [1964] A.C. 925 (H.L.).

58 See Rideout, R.W., Principles of Labour Law (2nd ed., 1976)Google Scholar Chapters 10–11.

59 EPA 1975, secs. 1–6 and Sched. 1.

60 ACAS, Annual Report (1977, HMSO) 61, 79.

61 See TULRA 1974 sec. 30(1) as amended by the Amendment Act, 1976, sec. 3(3) (4).

62 TULRA 1974, Sched. 1, Para. 6(5), now amended by the Amendment Act, 1976, sec. 1(e).

63 Sarvent v. C.E.G.B. [1976] I.R.L.R. 66, 77–78.

64 For a comparative investigation of this problem see the writer's chapter 6 in Schmidt, Folke, ed., Discrimination in Employment (Stockholm, forthcoming).Google Scholar

65 EPA 1975, Sched. 16, Part III, para. 13, replacing TULRA 1974, Sched. 1, paras. 7 and 8.

66 See below n. 81 on the main issues; Grunwick Processing Laboratories Ltd. v. ACAS [1978] I.C.R. 231 (H.L.) See the more detailed treatment of this issue in Kahn-Freund, , Labour and the Law (1977) 269–271.Google Scholar

67 Directive 75/129; see Freedland, M., (1976) 5 I.L.J. 24Google Scholar on the relationship between the EEC and the 1975 Act.

68 See the EPA 1975, secs. 99, 101–107, for what follows on this topic.

69 Health & Safety at Work Act 1974, sec. 2 (supra n. 17); Social Security Pensions Act 1975, sec. 31(5).

70 On earlier legislation see Wedderburn, and Davies, , Employment Grievances and Disputes Procedures in Britain (1969)Google Scholar Chap. 9.

71 In Schedule 11, EPA 1975. See Bercusson, B., “The New Fair Wages Policy” (1976) 5 I.L.J. 129Google Scholar; and Kahn-Freund, O., Labour and the Law 140–149.Google Scholar

72 In 1977 out of a total of 1124 claims under Schedule 11 of the 1975 Act received by ACAS, 840 were claims for a “general level” as against “recognised terms and conditions”: ACAS, Annual Report (1977) 68. In all the statutory jurisdictions of the CAC, a reference to ACAS precedes the complaint being taken to the CAC in order to give ACAS an opportunity to resolve the dispute by conciliation between the parties.

73 See, on what follows, secs. 17–21, EPA 1975; Gospel, H., “Disclosure of Information to Trade Unions” (1976) 5 I.L.J. 223.Google Scholar

74 “Disclosure of Information to Trade Unions for Collective Bargaining Purposes”. ACAS, Code of Practice 2Google Scholar, para. 11.

75 The High Court took this view of one interpretation by the C AC of Schedule 11 of the EPA 1975; R. v. CAC ex parte Deltaflow Ltd. [1977] I.R.L.R. 486. But in the absence of an error of law or other excess of jurisdiction the High Court refuses to act as a court of appeal from the CAC: see R. v. CAC ex parte T.I. Tube Division Services Ltd. [1978] I.R.L.R. 183.

76 Sec. 1(2), EPA 1975.

77 See, on what follows, secs. 11–16, EPA 1975.

78 Sec. 12(1) ibid.

79 The sections have so far been used by unions to attempt to secure recognition from an employer who refuses any recognition. But the Act envisages a parallel claim by a union already recognised for “further recognition”. i.e. a claim to have the area of bargaining widened by means of a legal order from ACAS. Such claims will test secs. 11–16 of the Act even more severely than those claims already brought.

80 The obligation of the employer in sec. 15(2) of the Act is to take “such action by way of or with a view to carrying on negotiations as might reasonably be expected to be taken by an employer ready and willing to carry on such negotiations as are envisaged by the recommendation” of ACAS. On the parallel with the U.S. “duty to bargain in good faith” see Kahn-Freund, , Labour and the Law 83.Google Scholar

81 Some trade unionists who (uncharacteristically for the movement) advocated such laws in the 1960's had, however, already seen that the sanction would probably be only an award of individual employment rights; but they may not have sufficiently understood the limitations of that as the ultimate remedy: see Jenkins, C. and Mortimer, J., The Kind of Laws the Unions Ought to Want (1968) 50–56.Google Scholar

82 Grunwick Processing Laboratories Ltd. v. ACAS [1978] I.C.R. 231 (H.L.).

83 Ibid. at 264 (where “Apex” dearly should read ACAS).

84 See Rogaly, J., Grunwick (1977)Google Scholar; and the employer's viewpoint in Ward, G., Fort Grunwick (1977)Google Scholar. The union, APEX, eventually proceeded under Schedule 11 of the 1975 Act against Grunwick Ltd., before the CAC, alleging that Grunwick Ltd. employed its staff on terms less favourable than the “general level” in the industry and in the district. But by this time Grunwick Ltd. was able to show that its employment conditions were not as bad as that. The CAC held that in view of the “marked improvement” of conditions in the preceding year, the claim against the employer must fail; Grunwick Processing Laboratories Ltd. and APEX, Award 329 of 1977.

85 See “Report of a Committee of Inquiry under the Rt. Hon. Lord Justice Scarman O.B.E. into a Dispute between Grunwick Processing Laboratories Ltd. and Members of [APEX]”. Cmnd. 6922 (1977, HMSO).

86 ACAS, Trade Union Recognition — the First Two Years (13 February 1978).Google Scholar

87 See the 1976 version in TUC Disputes Principles and Procedures (TUC); and see Kalis, P., “The Adjudication of Inter-Union Membership Disputes” (1977) 6 I.L.J. 19Google Scholar, and “The Effectiveness and Utility of the Disputes Committee of the TUC” (1978) 16 Brit. J. of Industrial Relations 41.

88 EPA 1975, sec. 118(1) (2).

89 At the time of writing the union has failed to force ACAS to proceed to a determination of its claim notwithstanding the TUC Disputes Committee Award: EMA v. ACAS, March 1978, unreported (High Court).

90 See for example Squib U.K. Staff Assocn. v. Certification Officer [1977] I.R.L.R. 355 (EAT), interpreting “independent” as defined by sec. 30(1) TULRA 1974; see also GMWU v. Certification Officer [1977] I.C.R. 183 (EAT).

91 See for example NUGSAT v. Albury Bros. Ltd. [1977] I.R.L.R. 173 (EAT) interpreting “recognised” in sec. 99, EPA 1975; but see now Wilson Ltd. v. USDAW [1978] I.R.L.R. 120 (EAT).

92 Murray, L., Viscount Nuffield Memorial Lecture, The Times, 29 April 1978.Google Scholar

93 See the Bullock Report on Industrial Democracy, Cmnd. 6706 (1977); discussed by Kahn-Freund, O., “Industrial Democracy” (1977) 6 I.L.J. 65Google Scholar; Davies, P. and Wedderburn, , “The Land of Industrial Democracy” (1977) 6 I.L.J. 197Google Scholar; and, now, the Government's response and proposals in its White Paper “Industrial Democracy”. 1978, Cmnd. 7231, H.M.S.O.