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Published online by Cambridge University Press: 02 January 2018
The ‘rights’, if any, which belong to trade union members who refuse to participate in industrial action have been the subject of debate and controversy recently. A number of factors account for this. The first is the legal action maintained by members of the National Union of Mineworkers who refused to participate in the recent industrial action in the coalfields. Secondly, recent debates over the wisdom of introducing a ‘positive’ right to strike in place of the existing system of ‘immunities’ have, as Lord Wedderburn has remarked, ‘opened up… the prospect of a prohibition on unions disciplining members who refuse to strike, on the basis of the fallacy that a positive ‘‘right to strike’’ implies the negative ‘‘right not to strike’’’.
I would like to thank Dr Keith Ewing, Fellow of Trinity Hall, Cambridge for his helpful comments on an earlier draft of this article. I, of course, remain responsible for the views expressed and any errors which remain.
1. For a useful discussion of the cases see Ewing, ‘The Strike, the Courts and the Rule Book’ (1985) 14 ILJ 160.
2. Elias and Ewing, ‘Economic Torts and Labour Law: Old Principles and New Liabilities’ (1982) CLJ 321 at pp 356–358 and Wedderburn, ‘The New Politics of Labour Law’ in McCarthy (ed) Trade Unions (2nd edn), p 497.
3. Wedderburn op cit at p 520.
4. For the opposing views see Crick, ‘Rights for our Worst Enemies’, New Statesman 19 April 1985, p 8 and Christian ‘Liberties Under Attack’New Statesman 3 May 1985, p 14.
5. See ‘Fourth Trade Union Bill Will Focus on Individual Freedoms’ Financial Times, 20 June 1985, p 1 and Financial Times 20 January 1986, p 12.
6. Financial Times 20 June 1985, p 1.
7. In Faramus v Film Artistes Association [1963] 2 QB 524 at 540–542 Lord Denning sought to distinguish between the purposes or main objects of a union and its rules and hold that the latter were not protected from the restraint of trade doctrine in so far as they were not concerned with the main objects of the union. This view was rejected by the House of Lords in Faramus [1964] AC 925 at 943 but has since been resurrected by Sachs LJ in Edwards v SOGAT [1971] Ch 354 at 382. However the better view is that s 2(5) of TULRA has removed the restraint of trade doctrine from trade union rules.
8. See infra nn 34–49 and associated text.
9. [1975] AC 396.
10. NCB v Galley [1958] I WLR 16.
11. Lee v Showman's Guild [1952] 2 QB 329 at 342; Roebuck v National Union of Mineworkers (Yorkshire Arm) (No2) [1978] ICR 676. See generally Rideout's Principles of Labour Law (4th edn) pp 421–439.
12. ‘Survey of Union Strike Rules’ Part 1 (1982) 276 IRRR 2 and Part 2 (1982) 279 IRRR 2.
13. [1984] IRLR 440; for an earlier example see National Sailors and Firemens Union v Reed [1926] 1 Ch 536. See also McDowall v McGhee 1913 2 SLT 238 where is was held that it is not detrimental to the interests of the union for a member to sue to ensure that the union complies with its own rules.
14. [1974] ICR 625.
15. Lee v Showman's Guild [1952] 2 QB 329 at 343–344.
16. For an example of a restrictive construction of a specific rule see MacLeeland v NUJ [1975] ICR 116 and Partington v NALGO 1981 SLT 184 at 190–191 in relation to the restrictive construction of regulation in rule 12(a).
17. For such an argument see Rideout's Principles of labour Law (4th edn), p 426.
18. [1974] ICR 625; see also Partington v NALGO 1981 SLT 184.
19. [1974] ICR 625 at 634.
20. [1957] 3WLR 119 at 129.
21. [1974] ICR 625 at 634.
22. Davies (1975) 4 11.J 112.
23. See infra nn 50–56 and associated text.
24. Cheall v APEX [1983] QB 126 at 33&139, CA, noted by Kidner (1983) 12 ILJ 38 and Simpson (1983) 46 MLR 635; for other indications of such a view see Edwards v SOCAT [1971] Ch 354 at 376; Breen v AEU [1971] 2 QB 175 at 190 and Enderby Town Footbull Club v Football Association [1971] Ch 591 at 606–607.
25. Faramus u Film Artistes Association [1964] AC 925, HL.
26. [1983] 2 AC 180 at 191, noted by Ewing (1983) CLJ 207.
27. 1981 SLT 184, noted by Napier 1982 SLT (News) 169.
28. Section 18(4) of TULRA lays down rigorous requirements which must be complied with before any terms of a collective agreement which ‘prohibit or restrict the right of workers to engage in a strike … or have the effect of prohibiting or restricting that right’ may form part of an employee's contract of employment. It is unclear whether the requirements were complied with as the point was never argued.
49. 1981 SLT 184 at 189.
30. [1979] IRLR 404 at 407.
31. 1981 SLT 184 at 189.
32. For an attempt to provide such a connection see Kidner, Trade Union Law (2nd edn), p 43.
33. Support for the view that a union cannot discipline a member for refusing to participate in industrial action in violation of a collective agreement can be found in obiter remarks of Lord Denning in Porter v NUJ [1979] IRLR 404 at 407 and in the Canadian case of Tippett v International Typographical Union (No 1) (1976) 63 DLR (3d) 522.
34. There is no direct authority on the point, but for such an argument see Elias, Trade Disputes, p 81. For an outline of the content and likely impact of s 5 see Elias, Napier and Wallington, Labour Law, p 229. See also paragraph 61 (a) of the Code of Practice on Closed Shop Agreements and Arrangements.
35. [1926] 1 Ch 536.
36. Ibid at 540.
37. The case is a rather unsatisfactory one and has been subjected to considerable criticism, most notably by Goodhart, ‘The Legality of the General Strike in England’ (1926–1927) 36 Yale LJ 464 and Pollock (1926) 42 LQR 289. The decision itself was pronounced in an extempore judgment, the defendants were not represented by counsel and no authorities were cited for the proposition vouched for by Astbury J.
38. [1973] ICR 421.
39. Ibid at 433.
40. Although in Sherard v AUEW [1973] ICR 421 at 436 Roskill LJ refused to reject such an argument. It should be noted that in neither NSFU v Reed nor Sherard v AUEW did the judges look for the commission of a tort before declaring any purported disciplinary action ‘unlawful’. It may be that, as most industrial action involves the commission of torts, the judges assumed that a tort had been committed. Support for the view that industrial action outside the golden formula, independently of the commission of a tort, nullifies the union's disciplinary power can be found in paragraph 61 (a) of the Closed Shop Code of Practice which states that ‘unlawful’ means action for which no immunity is provided.
41. There may be little difference in practice because, although in theory industrial action outside the golden formula does not necessarily involve the commission of a tort, in reality torts will generally be committed.
42. [1985] 1 WLR 1081.
43. Ibid at 1117.
44. Ibid.
45. For a persuasive argument that ultra vires cannot apply to trade unions see Wedder-burn (1985) 14 ILJ 127.
46. Drake v Morgan [1978] ICR 56. As this jurisdiction is based upon public policy, there may be situations where public policy dictates that such action should not be ultra vires the union.
47. But for an example of the golden formula being used as an effective guide to public policy see Universe Tankships of Monrovia v International Transport Workers Federation [1982] 2 WLR 803.
48. It may also have bizarre consequences for union liability in tort as s 15 of the Employment Act 1982 appears to have left the common law of ultra vires intact. If industrial action outside the golden formula is ultra vires the union then a union may never be liable in damages under s 15 because if the action is within the golden formula the union would have the protection of the immunity and if it is outside the golden formula the union could plead ultra vires. However this bizarre result could be avoided by adopting the rule in company law that a company cannot invoke the doctrine of ultra vires to avoid liability for a crime or a tort. See Gower's Principles of Modern Company Law (4th edn), pp 169–170.
49. [1979] IRLR 404. In so doing the Court of Appeal refused to follow the Australian decision of Amalgamated Society of Engineers v Smith (1913) 16 CLR 537.
50. For an example of the difficulties surrounding the interpretation of ‘trade dispute’ see Mercury Communications Ltd v Scott-Gamer (1984] I All ER 179.
51. See Morris, The Regulation of Industrial Action in Essential Services' (1983) 12 ILJ 69, especially pp 78–80.
52. Thus paralleling the common law development in Esterman v NALGO [1974] ICR 625.
53. 1981 SLT 184.
54. (1982) 276 IRRR 10. See now ss 10–11 of the Trade Union Act 1984.
55. Elias, ‘Closing in on the Closed Shop’ (1980) 9 ILJ 201 at pp 209–212, Lewis (1981) 44 MLR 198 and Pitt (1981) 10 ILJ 45. For an example of the normative effect of the Codes of Practice see the judgment of Scott J in Thomas v NUM (S. Wales Area) [1985] 1 WLR 1081 at 1114.
56. McCarthy, The Closed Shop in Britain (1964), pp 99–104.
57. See generally Ewing and Rees, ‘The TUC Independent Review Committee and the Closed Shop’ (1981) 10 ILJ 184.
58. TUC Report 1981, p 370. The only other IRC case concerning trade union members who refused to participate in industrial action is Ward and TGWU, TUC Report 1980, p 347.
59. The dispute was held to have been outside the golden formula in Express Newspapers v Keys [1980] IRLR 247.
60. Ewing and Rees, op cit, n 57, and Ewing and Rees (1983) 12 ILJ 106.
61. Gennard et al, ‘New Findings on the Closed Shop’ (1983) 289 IRRR 2 at p 5.
62. Supra nn 34–49 and associated text.
63. For the application of such a jurisdiction see R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 3 All ER 452, discussed in Elias Napier and Wallington, Labour Law, p 333. See also the judgment of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410.
64. But concern has been expressed by the government over the fines inposed by the TGWU on members who refused to participate in last year's dock strike: see Financial Times loc cit n 5 supra.
65. Ibid.
66. Clarke v Chadburn (25 May 1984, unreported), Ch D; Taylor v NUM (Derbyshire Area) [1984] IRLR 440; Taylor and Foulstone v NUM (Yorkshire Area) [1984] IRLR 445.
67. Morris v NUM (Midlands Area) (22 August 1984, unreported) Ch D; Taylor v NUM (Derbyshire Area). n 66 supra.
68. Clarke v Chadburn and Taylor and Foulstone v NUM (Yorkshire Area), n 66 supra.
69. Clarke u Chadburn; Taylor v NUM (Derbyshire Area) and Taylor and Foulstone v NUM (Yorkshire Area), n 66 supra.
70. Taylor v NUM (Derbyshire Area) [1985] IRLR 99 and Hopkins v National Union of Seamen [1985] IRLR 157.
71. [1975] AC 396. See also Porter v NUJ [1979] IRLR 404 and [1980] IRLR 404, noted by Newell ‘Trade Unions and Non-Striking Members’ (1981) 97 LQR 214.
72. [1984] IRLR 445.
73. Ibid at 450.
74. (1843) 2 Hare 461. For a brief discussion of the application of this rule to trade unions see Harvey on Industrial Relations and Employment Law, Div IV, paras 269–274.
75. [1972] 1 WLR 130.
76. Ibid at 140.
77. In such circumstances a court may be more reluctant to grant an injunction and may apply the more rigorous test laid down by the Court of Appeal in Cayne v Global Natural Resources PLC [1984] 1 All ER 225.
78. [1984] IRLR 445 at 450. Although it should be noted that the defendants were not represented in this case.
79. The phrase ‘right to work’ or ‘right to go to work’ has occurred in a number of the recent cases. It has its origins in Nagle v Fielden [1966] 2 QB 633 and Edwards v SOGAT [1971] Ch 354. However the juridical basis of this doctrine is extremely suspect (see Hepple, ‘A Right to Work?’ (1981) 10 ILJ 65 at pp 78–81) and it should be discarded.
80. For an analysis of the problems of balancing the individual and the collective interest see Kidner, ‘The Individual and the Collective Interest in Trade Union Law’ (1976) 5 ILJ 90.
81. [1984] IRLR 445.
84. Ibid at 450.
83. Ibid.
84. [1977] 1 WLR 1172.
85. In the recent Green Paper Democracy in Trade Unions (Cmnd 8778, para 63) the government also canvassed the possibility of introducing triggered ballots, which would enable a certain percentage of union members to apply to court to hold a secret ballot to test the support which union leaders claimed for industrial action. However, practical difficulties led to the non-implementation of these proposals (paras 64–66).
86. For the use of such a justification see Lee v Showman's Guild [1952] 2 QB 329 at 343; Edwardr v SOGAT [1971] Ch 354 at 376. For an excellent analysis of the arguments for and against legal intervention in voluntary associations see Chafee, ‘The Internal Affairs of Associations not for Profit’ (1930) 43 Haw LR 993.
87. Chafee's ‘stranglehold policy’, op cit, pp 1021–1023.
88. Chafee's ‘hot potato policy’ and ‘living tree policy’, op cit, pp 1026–1029.
89. Kahn-Freund, ‘Trade Unions, the Law and Society’ (1970) 33 MLR 241 and Kahn-Freund, Labour and the Law (2nd edn), pp 192–193.
90. Kahn-Freund, Labour and the Law (2nd edn), p 225.
91. His view on the disciplining of members who refuse to participate in industrial action is unclear. He thought that Esterman v NALGO was correctly decided because of the ‘quite exceptional circumstances of the case’(Labour and the Law (2nd edn), p 188). Yet he rejected s 65(7) of the Industrial Relations Act 1971 as being ‘unworkable’ (Labour and the Law (2nd edn), p 215). His objection to the latter section appeared to be two-fold. First, he doubted whether the law could force such a member on to a union and, secondly he seemed to think that s 65(7) crossed the boundary between protecting the individual and disrupting the life of the organisation (Labour and the Law (1st edn), p 193). Yet the same criticisms could be levelled against Esterman. The rationale behind his distinction is unclear.
92. Mr Tebbit, 94 HC Official Report (6th series) cols 895–897 (13 April 1983).
93. McIlroy, ‘Chips off the Block’, New Statesman, 1 April 1983, p 14.
94. For an argument that an individual's right is confined to a right to participate in the making of the strike decision see MacFarlane, The Right to Strike, especially ch 5.
95. Express Newspapers u McShane [1979] ICR 210 at 218 per Lord Denning: ‘When Parliament granted immunities to the leaders of trade unions, it did not give them any rights’. See also Kahn-Freund Labour and the Law (3rd edn) pp 308–310.
96. Kahn-Freund Labour and the Law (3rd edn), pp 352–359.
97. The illogicality of deriving a ‘right’ from a ‘freedom’ has been discussed, in the context of freedom of association, by Prondzynski, ‘Freedom of Association and the Closed Shop: The European Perspective’ (1982) 41 CLJ 256, especially pp 263–264.
98. Kahn-Freund Labour and the Law (3rd edn), pp 308–310. The European Social Charter, Art 6(4), which has been ratified by this country, guarantees the freedom to strike ‘with a view to ensuring the effective exercise of the right to bargain collectively’.
99. Wedderburn, ‘Discrimination in the Right to Organise and the Right to be a Non-Unionist’ in Schmidt (ed), Discrimination in Employment, p 367 at pp 465–466.
100. Hill v AUEW (1973) 8 ITR 414.
101. Lord Wright in Crofter Harris Tweed v Veitch [1942] AC 435 at 463.
102. For a recognition that a refusal to strike constitutes a collective bargaining offence against the union see Summers, ‘The Law of Union Discipline: What the Courts Do in Fact’ (1960) 70 Yale LJ 175 at pp 188–190. For a rare British recognition of the fact that a refusal to strike involves collective bargaining issues see the IRC case of Hunter-Gray and TGWU, note 58 supra.
