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THE LAW OF INDUSTRIAL CONFLICT
INDUSTRIAL RELATIONS IN PRACTICE General Editor: Jim Matthewman
Industrial Relations in Practice is a new series for personnel managers, union negotiators, employees, welfare advisers and lawyers. With an emphasis on current practice in leading British organisations and trade unions, the series takes an overall independent stance, with titles aimed at both sides of industry. The various authors, who have been selected from management, independent research groups and labour organisations, address themselves to topics of immediate and practical concern to the work-force of today and those responsible for its management.
Published titles
Edward Benson A GUIDE TO REDUNDANCY LAW THE LAW OF INDUSTRIAL CONFLICT
Alastair Evans and Stephen Palmer NEGOTIATING SHORTER WORKING HOURS
Susan M. Shortland MANAGING RELOCATION
Forthcoming titles
Gary Bowker DISCRIMINATION AT WORK
Philip James UNDERSTANDING SHOP STEWARDS
Susan Johnstone and James Hillage CONTROLLING INDUSTRIAL ACTION
David Murray-Bruce PROMOTING EMPLOYEE HEALTH
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The Law of Industrial Conflict
Edward Benson
M MACMILLAN PRESS
© Edward Benson 1988
Softcover reprint of the hardcover 1st edition 1988 978-0-333-41913-7
All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission.
No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright Act 1956 (as amended), or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 33-4 Alfred Place, London WClE 7DP.
Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages.
First published 1988
Published by THE MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG21 2XS and London Companies and representatives throughout the world
Typeset by Wessex Typesetters (Division of The Eastern Press Ltd) Frome, Somerset
British Library Cataloguing in Publication Data Benson, Edward The law of industrial conflict.(Industrial relations in practice) 1. Labour laws and legislation-Great Britain I. Title II. Series 344.104'1 KD3040 ISBN 978-1-349-08804-1 ISBN 978-1-349-08802-7 (eBook) DOI 10.1007/978-1-349-08802-7
Contents
Table of Cases
Table of Statutes
Acknowledgements
Abbreviations
Introduction
PART I INDIVIDUAL RIGHTS
1 The Contract of Employment The contract of employment
2 The Employment Legislation Unfair dismissal Redundancy payments Discrimination and equal pay Wages Councils
PART II COLLECTIVE BARGAINING
3 Voluntary Assistance with Collective Bargaining Employee involvement ACAS The role of the TUC
4 Recognition Trade unions
5 The Right to Time OtT Work Time off for trade union duties Safety representatives Time off for trade union activities
6 The Right to Belong to a Union Dismissal Action short of dismissal
v
viii
xxiv
xxvi
xxvii
xxix
3 4
12 12 21 22 27
31 31 34 38
41 42
47 48 56 57
61 62 71
Vl Contents
7 Exclusion or Expulsion from a Union 77 Union rules 77 Natural justice 81 Unreasonable exclusion or expulsion 84 Independent Review Committee 91
8 The Right not to Belong to a Union 93 Unfair dismissal 93 Redundancy 106 Action short of dismissal 106 Union labour only practices 108
9 Disclosure of Information 111 Information to be disclosed 112 Restrictions on general duty to disclose 118 Complaint of failure to disclose 122
10 Consulting over Redundancies and Business Transfers 127 Minimum periods of consultation 127 Commencing consultation 128 Form of consultation required 129 Substance of consultation required 130 Employer's defence 132 Protective awards 136 Transfer of undertakings 140
11 Collective Agreements 143 Enforceability 146 Breach of collective agreements 159
PART III INDUSTRIAL ACTION
12 Voluntary Assistance in Trade Disputes 167 TheTUC 167 ACAS 168
13 Effect of Industrial Action on Employment Protection Rights 173
Uniair dismissal 175
14 Liabilities Arising out of Industrial Action 191 The economic torts 191 Breach of union rules 204 Picketing 208
Contents Vll
15 Immunities from Tort Action 214 The economic torts 214 Ballots before industrial action 230 Picketing 236
16 Remedies 242 Liability of trade unions 242 Interlocutory injunctions 247 Remedies for breach of injunctions 255 Claims for damages 256
17 Criminal Law 260 Obstructing the highway 260 The Conspiracy and Protection of Property Act 1875 261 Violence 262 The role of the police 263
index 267
Table of Cases
ACAS v. Grunwick Processing Laboratories and others [1978] IRLR 38 34
Adlam and others v. Salisbury and Wells Theological College unreported, EAT 735/84 75
Allen v. Flood [1898] AC 1 193
Allen v. Thorn Electrical Industries Ltd [1967] 2 All ER 1137, [1967] 3 WLR 858, [1968] 1 QB 487 150, 153
Amalgamated Society of Boilermakers, Shipwrights, Blacksmiths & Structural Workers v. George Wimpey Ltd
[1977] ITR 215, [1977] IRLR 95 138 Amalgamated Society of Carpenters v. Braithwaite and others
[1922] 2 AC 440 78 American Cyanamid Co. v. Ethicon Ltd
[1975] AC 396, [1975] 1 AllER 504, [1975] 2 WLR 316 249, 251 Annamunthodo v. Oilfields Workers Trade Union
[1961] AC 945, [1961] 3 AllER 621 82 Arrowsmith v. Jenkins
[1963] 2 QB 561 260 Artisan Press Ltd v. Srawley and Parker
[1986] ICR 328, [1986] IRLR 126 70 Ashford and another v. ASTMS
[1973] ICR 296 96 Ashley v. Ministry of Defence
[1984] IRLR 57 52, 54 Associated News Group Ltd and others v. Wade
[1979] 1 WLR 697, [1979] ICR 664, [1979] IRLR 201 200 Associated Provincial Picture Houses Ltd v. Wednesbury
Corporation [1948] 1 QB 223, [1947] 2 AllER 680 111
Association of Patternmakers and Allied Craftsmen v. Kirvin Ltd [1978] IRLR 318 129, 134
Association of Scientific, Technical and Managerial Staffs v. Hawker Siddeley Aviation Ltd
[1977] IRLR 418 139 Austin Rover Group Ltd v. AUEW (TASS)
[1985] IRLR 162 255
B&S Contracts and Design Ltd v. Victor Green Publications Ltd [1984] ICR 419 198
Bailey v. BP Oil (Kent Refinery) Ltd [1980] ICR 642, [1980] IRLR 287 151
viii
Table of Cases
Bakers' Union v. Clarks of Hove Ltd [1979] 1 All ER 152, [1978] ICR 1076, [1978] IRLR 366
Baldwin v. Laporte Industries Ltd
lX
132, 133, 134, 136
unreported, EAT 169/82 101 Barley and others v. Arney Roadstone Corporation
[1977] IRLR 299 66 Barratt Developments (Bradford) Ltd v. UCATT
[1978] ICR 319, [1977] ITR 478, [1977] IRLR 403 128 Barrett v. National Coal Board
[1978] ICR 1102 156 Beal v. Beacham Group Ltd
[1981] IRLR 192 50, 51, 54 Beetham v. Trinidad Cement Ltd
[1960] AC 132, [1960] 1 AllER 274, [1960] 2 WLR 77 217 Bernard Matthews pic v. Rowland
unreported, 25.4.82 EAT 14/82 186 Bond v. CA V Ltd
[1983] IRLR 360 10 Boulting v. Association of Cinematograph Television and Allied
Technicians [1963] 1 AllER 716, [1963] 2 WLR 529, [1963] 2 QB 606 192
Bowman & Son v. Blyth [1983] IRLR 139 157
Bradley v. Edward Ryde & Sons [1979] ICR 488 66
Braithwaite v. Electrical, Electronic and Telecommunications Union and another
(1969] 2 All ER 859 77, 80 Brassington v. Cauldron Wholesale Ltd
[1978] ICR 405, [1977] IRLR 479 76 Brimelow v. Casson
[1924] 1 Ch 302 195 British Airports Authority v. Ashton
[1983] ICR 696, [1983] IRLR 287 240 British Airways Board v. Clark and Havill
[1982] IRLR 238 75 British Airways Engine Overhaul Ltd v. Francis
[1981] ICR 278, [1981] IRLR 9 58 British Broadcasting Corporation v. Hearn
[1978] 1 AllER 111, [1977] ICR 685, [1977] IRLR 273 219, 221 British Gas Corporation v. Wignall and Stafford
unreported, EAT 36/83 51 British Home Stores Ltd v. Burchell
[1978] IRLR 379, [1978] ITR 560 16 British Industrial Plastics Ltd v. Ferguson and others
[1940] 1 All ER 479 193 British Labour Pump Co. Ltd v. Byrne
[1979] ICR 347, [1979] IRLR 94 17
X Table of Cases
British Leyland UK Ltd v. McQuilken [1978] IRLR 245
Broadbent v. Crisp [1974] 1 All ER 1052, [1974] ICR 248, [1974] ITR 147
Brooks & Son v. Skinner [1984] IRLR 379
Broome v. Director of Public Prosecutions [1974] AC 587, [1974] 1 AllER 314, [1974] IRLR 26
Burdett-Coutts and others v. Hertfordshire County Council [1984] IRLR 91
Burroughs Machines Ltd v. Timmoney and others [1977] IRLR 404
Burton Group Ltd v. Smith [1977] IRLR 351
CAC Award no. 78/353 CAC Award no. 78/353A CAC Award no. 79/300 CAC Award no. 79/438 CAC Award no. 79/439 CAC Award no. 79/440 CAC Award no. 79/451 CAC Award no. 79/484 CAC Award no. 79/507 CAC Award no. 79/571 CAC Award no. 801152 CAC Award no. 801171 CAC Award no. 80/179 CAC Award no. 80/26 CAC Award no. 80/4 CAC Award no. 80/65 CAC Award no. 80/86 CAC Award no. 8113 CAC Award no. 82/102 CAC Award no. 82/16 CAC Award no. 82/18 CAC Award no. 82/4 CAC Award no. 84115 CAC Award no. 85/9 CAC Award no. 86/1 Cadoux v. Central Regional Council
151
43
160
211, 239, 260
9, 161
163
149
117 116 120 120 120 120 125 116 121 112
117, 122 120
113, 118 122 123 113 123 121 117 113 122 114
115, 120 117, 121 113, 115
[1986] IRLR 131 161, 162 Camden Exhibition & Display Ltd v. Lynott
[1965] 3 AllER 28, [1965] 3 WLR 763, [1966] 1 QB 555 157, 158 Camden Nominees Ltd v. Forcey and another
[1940] 2 AllER 1, [1940] Ch 352 195 Camellia Tanker Ltd v. International Transport Workers' Federation
[1976] ICR 274, [1976] IRLR 183 193
Table of Cases XI
Carter v. Law Society [1973] ICR 113 43
Carter v. Wiltshire County Council [1979] IRLR 331 73
Cayne v. Global Natural Resources pic [1984] 1 All ER 225 251
Chant v. Aquaboats Ltd [1978] 3 All ER 102, [1978] ICR 643 59
Chauhan v. Ford Motor Company unreported, EAT 224/84 101
Cheall v. APEX [1983] IRLR 215 39, 82, 83
Cheall v. Vauxhall Motors Ltd [1979] IRLR 253 76
City & Hackney Health Authority v. National Union of Public Employees
[1985] IRLR 252 213 City of Birmingham District Council v. Beyer
[1978] 1 All ER 910, [1977] IRLR 211 65 Clark v. NATSOP A (SOGAT '82)
[1986] ICR 12 85 Clarke and 640 others v. Chadburn and others
unreported, 25.5.84 Ch D 205, 250 Clarke and others v. NUM (Nottingham Area)
[1984] IRLR 350 206 Clay Cross (Quarry Services) v. Fletcher
[1979] 1 All ER 474, [1979] ICR 47, [1978] IRLR 361 26 Coates and Venables v. Modern Methods and Materials Ltd
[1982] 3 AllER 946, [1982] ICR 763, [1982] IRLR 318 177, 180, 182, 183
Colwyn Borough Council v. Dutton [1980] IRLR 420 19
Conway v. Wade [1906] AC 506 217, 222
Cook v. Thomas Linnell & Sons [1977] ICR 770, [1977] ITR 330, [1977] IRLR 132 14
Cotter v. Lynch Bros Ltd [1972] 3 AllER 809, [1972] ICR 263, [1972] IRLR 20 63
Cotter v. National Union of Seamen [1929] 2 Ch 58 206
Council of the City of Cardiff v. Conde [1978] IRLR 218 160
Courtaulds Ltd v. Lees and Bullivant unreported, EAT 437/81 58
Courtaulds Northern Spinning Ltd v. Moosa [1984] ICR 218, [1984] IRLR 43 187
Cresswell and others v. Board of Inland Revenue [1984] IRLR 190 11
xii Table of Cases
Crofter Hand-Woven Harris Tweed Co. Ltd and others v. Veitch and another
[1942) AC 435 203 Curry v. Harlow District Council
[1979) ICR 769, [1979) IRLR 269 98
Dawkins v. Antrobus (1881) 17 Ch D 615 78
Depledge v. Pye Telecommunications Ltd [1981) ICR 82, [1980) IRLR 390 53
Diamond v. Courtaulds Ltd [1979) IRLR 449 55
Dimbleby & Sons Ltd v. National Union of Journalists [1984) ICR 386, [1984) IRLR 161 199, 208, 219, 220, 223,
224, 226, 251, 252 Dixon and Shaw v. West Ella Developments Ltd
[1978) ICR 856, [1978) ITR 235, [1978) IRLR 151 58 Doyle v. Westminster Press
unreported, EAT 201/83 49 Drake v. Morgan
[1978) ICR 56 206 Drew v. St Edmondsbury Borough Council
[1980) ICR 513, [1980) IRLR 459 64 Duport Steels Ltd v. Sirs
[1980) 1 AllER 529, [1980) ICR 161, [1980) IRLR 116 222, 252
East Lindsay District Council v. Daubney [1977) ICR 566, [1977) ITR 359, [1977) IRLR 181 17
Edwards v. Skyways Ltd [1964) 1 AllER 494, [1964) 1 WLR 349 149
Edwards v. Society of Graphical & Allied Trades [1970) 3 WLR 713, [1970) 3 AllER 689 82
Elsey v. Smith [1983) IRLR 292 261
Emerald Construction Co. Ltd v. Lowthian and others [1966) 1 AllER 1013, [1966) 1 WLR 691 194
Esterman v. NALGO [1974) ICR 625 207
Examite Ltd v. Whittaker and others [1977) IRLR 312 223
Express & Star Ltd v. NGA and Lowe (CA) [1986) IRLR 222 256
Express & Star Ltd v. NGA and others [1985) IRLR 455 245
Express Newspapers Ltd v. Keys [1980) IRLR 247 221
Express Newspapers Ltd v. McShane and another (1980) AC 672, (1980) 1 AllER 65, [1980) IRLR 35 191, 221, 222, 226
Fairfax v. British Gas unreported, EAT 191/80
Falconer v. NUR and ASLEF [1986] IRLR 331
Table of Cases
Faramus v. Film Artistes' Association [1964] AC 925, [1964]1 AllER 25
Farmeary v. Vetinerary Drug Co. Ltd [1976] IRLR 322
Farthing v. Ministry of Defence [1980] IRLR 402
xiii
53
197
80
66,71
26 Faust and others v. Power Packing Casemakers Ltd
[1983] IRLR 117 Field v. Receiver of the Metropolitan Police
[1907]2 KB 853
59, 178, 192
262 Fisher and others v. York Trailer Co. Ltd
[1979] ICR 834, [1979] IRLR 386 Ford Motor Co. Ltd v. AEF
[1969]2 AllER 481, [1969]1 WLR 339, [1969]2 QB 303 Ford Motor Co. Ltd v. Hudson and others
[1978] ICR 482, [1978] IRLR 67 Foss v. Harbottle
2 Hare 461 Frost v. Clark & Smith
[1973] IRLR 216
Gallagher and another v. Post Office
177
146
20
205,206
42
[1970] 3 All ER 712 151 Galt v. Philp
[1984] IRLR 156 262 Gascol Conversions Ltd v. Mercer
[1974] ICR 420, [1974] IRLR 155 7, 155, 156 Gaumont-British Picture Corporation Ltd v. Alexander
[1936] 2 All ER 1686 10 Gayle v. John Wilkinson & Sons Ltd
[1978] ICR 154, [1977] IRLR 208 97 General & Municipal Workers' Union v. Wailes Dove Bitumastic Ltd
[1977] IRLR 45 127 General & Municipal Workers' Union (MATSA) v. British Uralite
Ltd [1979] IRLR 409 130, 131
General & Municipal Workers' Union (MATSA) v. British Uralite Ltd (No.2)
[1979] IRLR 412 138 General Aviation Services v. Transport & General Workers' Union
[1976] IRLR 224 246 Gibbons v. Associated British Ports
[1985] IRLR 376 163 GKN Sankey Ltd v. National Society of Metal Mechanics
[1980] IRLR 8 128, 138
xiv Table of Cases
Goodfellow v. NATSOPA [1985) IRLR 3 86, 87
Gorse v. Durham County Council [1971] 2 All ER 666 11
Graham v. ABF Ltd [1986) IRLR 90 16
Gray Dunn & Co. Ltd v. Edwards [1980) IRLR 23 160
Green (E) & Son (Castings) Ltd and others v. ASTMS and another [1984) IRLR 135 128, 130, 131, 136
Grogan v. British Railways Board unreported, EAT 505177 74
Gunton v. London Borough of Richmond-upon-Thames [1980) 3 AllER 577, [1980) ICR 755, [1980) IRLR 321 150
GWK Ltd v. Dunlop Rubber Co. Ltd (1926) 42 TLR 593 193
Hadmor Productions Ltd and others v. Hamilton and others [1981) 2 AllER 724, [1981) ICR 690, [1981) IRLR 210 193, 200, 202,
204,215,219,224,243,250 Hall-Raleigh v. Ministry of Defence
unreported, EAT 3179 58 Hamish Armour v. Association of Scientific, Technical & Managerial
Staffs [1979) IRLR 24 134, 135
Harold Stephen & Co. Ltd v. Post Office [1977) 1 WLR 1172 253
Hazells Offset Ltd v. Luckett [1977) ITR 298, [1977) IRLR 430 19
Heath and another v. Longman (J.F.) (Meat Salesmen) Ltd [1973) 2 AllER 1228, [1973) ICR 407, [1973) IRLR 214 175, 179
Heatons Transport (St Helens) Ltd v. Transport & General Workers' Union
[1973) AC 15, [1972) 3 AllER 101, [1972) IRLR 25 245, 246 Henthorne and another v. CEGB
[1980) IRLR 361 10 Hey v. Yorkshire Society of Textile Craftsmen
[1973) ITR 204 88 Highlands Fabricators Ltd v. McLaughlan
[1984) IRLR 482 184, 186 Hill v. C. A. Parsons & Co. Ltd
[1972) 1 Ch 305, [1971) 3 WLR 995, [1971) 3 AllER 1345 8 Himpfen v. Allied Records Ltd
[1978) ICR 684, [1978) ITR 201, [1978) IRLR 154 95 Hindle Gears Ltd v. McGinty and others
[1984) IRLR 477 181, 183 Home Counties Dairies v. Woods
[1977) 1 AllER 869, [1977) ICR 463, [1976) ITR 322 94
Table of Cases XV
Home Delivery Services Ltd v. Shackcloth [1984] IRLR 470 101
Hood, Ottway and McNeil v. Cory King Towage unreported, COlT 105, 106
Howard v. National Graphical Association [1984] IRLR 489 90, 91
Howitt Transport Ltd and another v. Transport & General Workers' Union (No. 2)
[1973] IRLR 25 255 Hubbard and others v. Pitt and others
[1975]3 AllER 1, [1975]3 WLR 201, [1975] ICR 308 212 Huntley v. Thornton and others
[1957]1 All ER 234, [1957]1 WLR 321 204, 220 Hynds v. Spillers-French Ltd
[1974] ITR 261, [1974] IRLR 281 101
International Sports Co. Ltd v. Thomson [1980] IRLR 340 17
Irani v. Southampton and South-West Hampshire Health Authority [1985] IRLR 203 8
James v. Waltham Holy Cross UDC [1973] ICR 398, [1973] ITR 467, [1973] IRLR 202 17
Jeffrey v. Laurence Scott & Electromotors Ltd [1977] IRLR 466 98, 99
Jenkins v. Kingsgate (Clothing Productions) Ltd [1981]1 WLR 1485, [1981] ICR 715, [1980] IRLR 6 26
Joel and another v. Cammell Laird (Ship-repairers) Ltd [1969] ITR 206 154
John v. Rees and others [1969] 2 All ER 274 18
Jones v. Associated Tunnelling Co. Ltd [1981] IRLR 477 6, 154
Joshua Wilson & Bros Ltd v. USDA W [1978]3 AllER 4, [1978] ICR 614, [1978] IRLR 120 45
Kavanagh v. Hiscock [1974] 2 All ER 177, [1974] ICR 282 265
Kelly v. NATSOPA (1915) 84 LJKB 2236 78
Kenny v. Vauxhall Motors Ltd unreported, 19.2.85 Court of Appeal 4, 159
Kent County Council v. Gilham [1985] IRLR 18 9
Laffin v. Fashion Industries (Hartlepool) Ltd [1978] IRLR 488 187
Lakhani v. Hoover Ltd [1978] ICR 1063 97
xvi
Lakhani v. NUGMW unreported
Table of Cases
Larkin v. Belfast Harbour Commissioners [1980] ICR 2114
Larkin and others v. Long [1915] AC 814
Lawlor v. Union of Post Office Workers [1965] Ch 712, [1965] 1 All ER 353
Leary v. National Union of Vehicle Builders [1971] Ch 34, [1970] 3 WLR 434, [1970] 2 AllER 713
Lee v. Showmen's Guild of Great Britain [1952] 1 AllER 1175
Leigh v. National Union of Railwaymen [1969] 3 All ER 1249
Leyland Vehicles Ltd v. Jones [1981] ICR 428, [1981] IRLR 269
London Transport Executive v. Clarke [1981] IRLR 166, [1981] ICR 355
Lowndes v. Keaveney [1903] 2 IR 82
Lumley v. Gye (1853) 2 E&B 216, 22 L.J.Q.B. 463, 1 W.R. 432
Lyon and Scherk v. StJames' Press Ltd [1976] IRLR 215
Lyons (J) & Sons v. Wilkins [1896] 1 Ch 601
McCalden v. National Union of Journalists unreported, EAT 590177
McColm v. Agnew & Lithgow Ltd [1976] IRLR 14
McCormack v. Shell Chemicals Ltd [1979] IRLR 40
McCormick v. Horsepower Ltd [1981] 2 AllER 746, [1981] ICR 535, [1981] IRLR 217
McGhee v. British Midland Road Services Ltd [1985] IRLR 198
McGhee v. Transport & General Workers' Union [1985] IRLR 198
McGregor and others v. GMBATU unreported, COlT 3267/84
Mcinnes v. Onslow Fane and another [1978] 1 WLR 520, [1978] 3 AllER 211
Marina Shipping Ltd v. Laughton [1982] 1 AllER 481, [1982] ICR 215, [1982] IRLR 20
Marley v. Forward Trust Group Ltd [1986] IRLR 369
Marley Tile Co. Ltd v. Shaw [1980] ICR 72, [1980] IRLR 25
80
240
217
81
84
78
77
96,97
8
209
192, 198
64,74
211, 212
88
20
55
181, 183, 185
102
86
26
81,82
225
150, 152
65
Table of Cases xvii
Marriott v. Oxford & District Co-operative Society [1969] 3 WLR 984, [1969] 3 AllER 1126, [1969] ITR 377 14
Marsden and others v. Fairey Stainless Ltd [1979] IRLR 103 184
Martin v. Scottish Transport & General Workers' Union [1952] 1 All ER 691 80
Maund v. Penwith District Council [1984] IRLR 24 63
Meade v. Haringey Borough Council [1979] 2 AllER 1016, [1979] 1 WLR 637, [1979] ICR 494 201, 253
Mears v. Safecar Security Ltd [1982] ICR 626, [1982] IRLR 183 5, 7
Menzies v. Smith & McLaurin Ltd [1980] IRLR 180 52
Mercury Communications Ltd v. Scott-Garner and another [1984] ICR 74, [1983] IRLR 494 219, 220, 252, 253
Merkur Island Shipping Corporation v. Laughton and others [1983] IRLR 218 197, 198, 223, 224, 225
Mersey Docks & Harbour Co. v. Verrinder and others [1982] IRLR 152 212, 239
Messenger Newspapers Group Ltd v. NGA [1984] ICR 345, [1984] IRLR 397 210,213,217,228,237,239, 256,257
Metropolitan Borough of Solihull v. National Union of Teachers [1985] IRLR 211 194, 250
Midland Cold Storage Company v. Turner [1972] ICR 230, [1972] 3 All ER 773 42, 43
Midland Plastics Ltd v. Till and others [1983] ICR 118, [1983] IRLR 9 178
Ministry of Defence v. Crook and Irving [1982] IRLR 488 53, 54
Mogul Steamship Co. Ltd v. McGregor, Gow & Co. and others [1892] AC 25 203
Monsanto pic v. Transport & General Workers' Union [1986] IRLR 406 232
Monterosso Shipping Co. Ltd v. International Transport Workers' Federation
[1982] ICR 675, [1982] IRLR 468 147 Moorcock (The)
(1889) 14 PD 64 153 Mordecai v. Jacob Beatus Ltd
[1975] IRLR 170 155 Moss and others v. McLachlan
[1985] IRLR 76 264
Nagle v. Fielden [1966] 2 QB 633, [1966] 1 AllER 689
NALGO v. Bolton Corporation [1943] AC 166, [1942] All ER 425
81
217
xviii Table of Cases
NALGO v. National Travel Ltd (1978] ICR 598
Nasse v. Science Research Council (1978] IRLR 352
National Coal Board v. Galley
129
72
(1958] 1 AllER 91, (1958] 1 WLR 16 152, 192 National Coal Board v. National Union of Mineworkers and others
(1986] IRLR 439 147, 151 National Coal Board v. Ridgway and Fairbrother
(1986] IRLR 379 63, 72,75 National Graphical Association v. Howard
(1983] IRLR 442 National Union of Dyers, Bleachers & Textile Workers v. Bradbury
(J) & Co. (Saddleworth) Ltd
88,89
unreported, EAT 557/81 128, 139 National Union of Gold, Silver & Allied Trades v. Albury Bros Ltd
(1979] ICR 84, (1978] IRLR 504 45 National Union of Taylors & Garment Workers v. Charles Ingram &
Co. Ltd (1977] ICR 530, (1977] ITR 285, (1977] IRLR 147
National Union of Teachers v. Avon County Council (1978] ICR 626, (1978] IRLR 55
National Vulcan Engineering Insurance Group v. Wade [1978] 3 AllER 121, [1978] ICR 800, [1978] IRLR 225
NATSOPA v. Kirkham (1983] IRLR 70
Naylor and others v. Orton & Smith Ltd and another (1983] ICR 665, (1983] IRLR 233
Neale v. County Council of Hereford and Worcester (1986] IRLR 168
Nelson and Woolett v. Post Office (1978] IRLR 548
Nethermere (St Neots) Ltd v. Gardiner and Taverner (1984] IRLR 240
New Venture Carpets Ltd v. Vincent and others unreported, 19.3.84 EAT 733/83
News Group Newspapers and others v. SOGAT '82 unreported, 10.2.86 Q.B.D.
44,46
131
26
86,88,89
182
15
155
4
179, 182
256 News Group Newspapers and others v. SOGAT '82 and others
(1986] IRLR 227 42,239 News Group Newspapers and others v. SOGAT '82 and others
(1986] IRLR 337 202,209,210,215,238,247,252, 254 Northbrook Laboratories Ltd v. King and Sands
(1984] IRLR 200 NWL Ltd v. Woods
(1979] 3 AllER 614, (1979] 1 WLR 1294, (1979] IRLR 217
210,212,221
217, 219, 222, 251, 252
Table of Cases
O'Kelly and others v. Trusthouse Forte pic [1983] IRLR 369, [1983] ICR 728
Partington v. NALGO [1981] IRLR 537
Pepper & Hope Ltd v. Daish [1980] IRLR 13
Pickstone and others v. Freemans pic [1986] IRLR 335
Piddington v. Bates [1960] 3 AllER 660, [1961] 1 WLR 162
Porter v. National Union of Journalists [1979] IRLR 404
Post Office v. Crouch and another [1974] ICR 378, [1974] ITR 136, [1974] IRLR 22
Powley v. ACAS and others [1977] IRLR 190
Presho v. Department of Health and Social Security [1984] IRLR 74
Pritchett and Dyjasek v. Mcintyre (J) Ltd [1986] IRLR 97
Quinn v. Leatham [1901] AC 495
R. v. CAC ex parte BTP Tioxide
XIX
4
207
153
24
263,264
207
73, 74
34
176
17
203
[1981] ICR 483, [1982] IRLR 60 111, 114, 115, 123 R. v. CAC ex parte Civil Service Union
[1980] IRLR 274 120, 125 R. v. Clark (No. 2)
[1964] 2 QB 315 209 R. v. Jones and others
[1974] ICR 310, [1974] IRLR 117, [1974] Crim LR 663 261, 262 R. v. Secretary of State for Foreign & Commonwealth Affairs ex
parte CCSU [1984] IRLR 28 61
Radford v. National Society of Operative Printers, Graphical & Media Personnel
[1972] ICR 484 79, 82 Rainey v. Greater Glasgow Health Board
[1985] IRLR 414 26 Rasool v. Hepworth Pipe Co. Ltd
(1980] ICR 495, [1980] IRLR 88 59 Rasool and others v. Hepworth Pipe Co. Ltd (No. 2)
[1980] IRLR 137 177, 178 RHP Bearings v. Brookes
[1979] IRLR 452 51, 54, 58 Richard Read (Transport) Ltd and another v. NUM (South Wales
Area) [1985] IRLR 67 243, 254, 255, 256
XX Table of Cases
Rigby v. Ferodo Ltd unreported, 29.1.86 Q.B.D. 4, 159, 160
Robb v. Leon Motor Services Ltd (1978] ICR 506, (1978] IRLR 26 73, 74
Robertson v. British Gas Corporation (1983] ICR 351 6, 162
Rodwell v. Thomas (1944] 1 AllER 700, (1944] KB 596 150
Roebuck and O'Brien v. National Union of Mineworkers (Yorkshire Area)
(1977] ICR 573 82, 83, 84 Rookes v. Barnard
(1964] AC 1129, (1964] 1 AllER 367, (1964] 2 WLR 269 191, 199, 201, 202,216,257
Rothwell v. APEX (1976] ICR 211, (1975] IRLR 375
Royle v. Trafford Borough Council (1984] IRLR 184
Saggers v. British Railways Board (No. 1)
39,81
10,11
(1977] ICR 809, (1977] 266 101 Sakals v. United Counties Omnibus Co. Ltd
[1984] IRLR 474 101, 107 Santer v. National Graphical Association
[1973] ICR 60 79 Saunders v. Bakers, Food and Allied Workers' Union
[1986} IRLR 16 85, 90, 91 Saxton and others v. National Coal Board
[1970] ITR 196 156 Scala Ballroom (Wolverhampton) Ltd v. Ratcliffe
[1957] 1 WLR 321 204 Secretary of State for Employment v. ASLEF and others (No. 2)
[1972] 2 AllER 949, [1972] ICR 19, [1972] 2 QB 455 9, 10, 191, 192 Shannon v. Michelin (Belfast) Ltd
(1981] IRLR 505 63 Sherard v. AUEW
[1973] ICR 421, [1973] IRLR 188 192 Shipping Company Uniform Inc v. International Transport Workers'
Federation (1985] IRLR 71 225, 233, 254
Shirlaw v. Southern Foundries Ltd [1932] 2 KB 206 153
Sim v. Rotherham Metropolitan Borough Council [1986]IRLR 391 11
Simmons v. Hoover Ltd [1977] 1 AllER 775, [1977] ICR 61, [1976] IRLR 266 8, 189, 191
Singh v. British Steel Corporation [1974] IRLR 131 149, 154, 160, 161
Table of Cases xxi
Smith v. Chairman and Councillors of Hayle Town Council [1978] ICR 996, [1978] IRLR 413 62
Smith v. Thomasson (1891) 62 LT 68 261
Sood v. GEC Elliott Process Automation Ltd [1980) ICR 1, [1979] IRLR 416 50, 51, 58
South Wales Miners' Federation and others v. Glamorgan Coal Co. Ltd [1905) AC 239 195
Spillers-French (Holdings) Ltd v. USDAW [1980) ICR 31, [1979] IRLR 339 131, 136, 137, 139
Spring v. National Amalgamated Stevedores' and Dockers' Society [1956] 1 WLR 585, [1956] 2 AllER 221 39
Stewart v. Craig Shipping Co. Ltd [1979] ICR 713 153
Stone v. Charrington & Co. Ltd [1977] ICR 248, [1977] ITR 255 67
Stratford & Son Ltd v. Lindley and another [1965] AC 307, [1964] 3 AllER 102, [1964] 3 WLR 541 194, 197, 199,
Sulemany v. Habib Bank Ltd [1983] ICR 60
System Floors (UK) Ltd v. Daniel [1982] ICR 54
Tadd v. Eastwood and another
221
66
7
[1983] IRLR 320 151 Taff Vale Railway Co. v. Amalgamated Society of Railway Servants
[1901] AC 434 214 Talke Fashions Ltd v. Amalgamated Society of Textile Workers
[1978] 2 AllER 649, [1977] ICR 833, [1977] IRLR 309 137 Tanner v. Kean Ltd
[1978] IRLR 110 14 Taplin v. Shippam Ltd
[1978] ICR 1068, [1978] IRLR 450 67 Tarmac Roadstone Holdings Ltd v. Peacock
[1973] 2 AllER 485, [1973] ICR 273, [1973] IRLR 157 139 Taylor and another v. NUM (Derbyshire Area)
unreported, 14.12.84 Ch D 206 Taylor and another v. NUM (Yorkshire Area)
unreported, 28.9.84 Ch D 206 Taylor and others v. NUM (Derbyshire Area)
[1984] IRLR 440 205, 207 Therm-A-Stor Ltd v. Atkins and others
[1983] ICR 208, [1983] IRLR 78 62 Thomas and others v. NUM (South Wales Area)
[1985] IRLR 136 199,206,208,210,211,237,239,246,252 Thomas Scott & Sons (Bakers) Ltd v. Allen
[1983] IRLR 329 51, 53
xxn Table of Cases
Thompson and others v. Eaton Ltd [1976] ICR 336 173
Thomson (D.C.) & Co. Ltd v. Deakin [1952] 2 AllER 361, [1952] Ch 646 193, 195, 196
Tomczynski v. Millar (J.F.) Ltd [1976] ITR 127 185
Torquay Hotel Co. Ltd v. Cousins [1969] 1 AllER 522, [1969] 2 WLR 289, [1969] 2 Ch 106 193, 196, 198,
208 Tramp Shipping Corporation v. Greenwich Marine Incorporated
[1975] 2 AllER 989, [1975] 1 WLR 1042, [1975] ICR 261 178 Transport & General Workers' Union v. Courtenham Products Ltd
[1977] IRLR 8 46 Transport & General Workers' Union v. Gainsborough Distributors
(UK) Ltd [1978] IRLR 460 138
Transport & General Workers' Union v. Ledbury Preserves (1928) Ltd
[1985] IRLR 412 131 Transport & General Workers' Union v. Nationwide Haulage Ltd
[1978] IRLR 143 128, 129, 133, 137 Trend v. Chiltern Hunt Ltd
[1977] ICR 612, [1977] ITR 180, [1977] IRLR 66 19 Tynan v. Balmer
[1966] 2 WLR 1181 209, 264
Union of Construction, Allied Trades & Technicians v. Rooke (H) & Son Ltd
[1978] ICR 818, [1978] ITR 310, [1978] IRLR 204 133 Universe Tankships Inc. of Monrovia v. International Transport
Workers' Federation [1982] 2 AllER 67, [1982] ICR 262 148, 219
USDA W v. Leancut Bacon Ltd [1981] IRLR 295 134, 135
USDA W v. Sketchley Ltd f1981] ICR 644, [1981] IRLR 291 45,46
Vine v. DRG (UK) Ltd [1978] IRLR 475
Vokes Ltd v. Bear [1974] ICR 1, [1974] ITR 85, [1973] IRLR 363
Ward Lock & Co. Ltd v. Operative Printers' Assistants' Society and another
52
16
(1906) 22 TLR 327 211, 212, 261 Wass (W. & J.) Ltd v. Binns
[1982] IRLR 283 17 Weddel & Co. Ltd v. Tepper
[1980] ICR 286, [1980] IRLR 96 17
Table of Cases
Western Excavating (ECC) Ltd v. Sharp [1978] 2 WLR 344, [1978] ITR 221, [1978] IRLR 27
White v. Riley [1921] 1 Ch 1
White and others v. Kuzych [1951] AC 585, [1951] 2 AllER 435
Wignall v. British Gas Corporation [1984] ICR 716, [1984] IRLR 493
Williams v. Western Mail & Echo Ltd [1980] ICR 366, [1980] IRLR 222
Williams and others v. Compair Maxam Ltd [1982] ICR 156, [1982] IRLR 83
Williams and others v. National Theatre Board [1982] ICR 715, [1982] IRLR 377
Winnett v. Seamarks Brothers Ltd [1978] ICR 1240, (1978] IRLR 387
Woodroffe v. British Gas Corporation unreported, 2 December 1985, Court of Appeal
Woods v. WM Car Services (Peterborough) Ltd [1982] ICR 693, (1982] IRLR 413
Young v. Canadian Northern Railway Company [1931] AC 83
Young v. Carr Fasteners Ltd [1979] ICR 884, [1979] IRLR 420
Zucker v. Astrid Jewels Ltd [1978] ICR 1088, [1978] ITR 568, [1978] IRLR 385
xxiii
7,14
194,220
77
53,59
179, 181
16
185
178, 180
17
14
150
51
65
Table of Statutes
Companies Act 1967 s.16 31
Conspiracy and Protection of Property Act 1875
s.7 261, 262 Criminal Law Act 1977
s.1 263
Employment Act 1980 s.1 235 s.2 236 s.3 37, 38, 87, 211 s.4 77, 8~. 89,90 s.5 84, 90, 91 s.17 191, 223-7, 240, 241
Employment Act 1982 s.1 31, 32 s.12 108, 109, 229 s.13 109, 110, 229 s.14 110, 228, 229, 230 s.15 231, 242-5 s.16 239, 257 s.17 258
Employment Protection Act 1975 s.1 35 s.2 169 s.3 171 s.4 36, 37 s.6 15, 37,38 s.8 43 s.17 111, 112, 115-17 s.18 117-21 s.19 119, 122, 123 s.20 124 s.21 124, 125 s.99 127-30, 132-6 s.101 132, 133, 136, 139, 140 s.102 140 s.103 140 s.119 127 s.121 124, 127 s.122 127
s.126 s.126A Schedule 17 para. 4
44 168, 169, 171
38 Employment Protection
(Consolidation) Act 1978 s.1 5, 144 s.2 5 s.4 6 s.5 6 s.11 7 s.12 148, 187 s.18 148 s.23 61, 71-4, 93, 107 s.24 107 s.25 75 s.26 75 s.26A 75, 108 s.27 48, 49, 52-6 s.28 57, 59 s.30 56,60 s.32 49, 55 s.49 8, 203 s.~ U s.55 13, 14 s.57 14, 15, 19 s.58 20, 61-5, 93, 94, 96-103 s.58A 99, 100 s.59 16, 70, 71, 106, 148 s.62 13, 175-8, 184, 186, 187 s.63 18, 19, 20 s.64 12, 62, 173 s.65 148 s.67 187 s.71 70 s.72A 69 s.73 21, 68 s.74 21 s.75A 70 s.76A 21, 105, 106 s.77 65-7 s~8 ~ s.79 68
xxiv
Table of Statutes XXV
Employment Protection (Consoli-dation) Act 1978- continued
s.81 21, 173 s.82 188, 189 s.87 22 s.88 22, 188 s.89 22 s.90 22 s.92 188 s.96 148 s.99 22 s.107 148 s.110 189, 190 s.134 13 s.140 12, 148 s.141 12, 22, 48, 61 s.144 13, 22, 48, 61 s.145 13, 22, 62 s.146 48, 62 s.151 174, 175 s.153 72, 185 Schedule 13 para. 3 173 Schedule 13 para. 4 173 Schedule 13 para. 6 173 Schedule 13 para. 15 174 Schedule 13 para. 24 174, 176,
Equal Pay Act 1970 s.l s.2A s.3
177
23-6 24,25
159
Health and Safety at Work Act 1974 s.2 56 s.16 38
Highways Act 1980 s.137 260
Race Relations Act 1946 s.47 38
Sex Discrimination Act 1975 s.56A 38 s.64 24
Social Security Act 1975 s.19 176
Trade Union Act 1984 s.lO 230-2 s.11 232-5
Trade Union and Labour Relations Act 1974
s.2 80, 242 s.7 96 s.13 199, 214-16 s.14 192, 203, 214, 242, 247 s.15 214, 236-40, 260, 261, 264 s.16 192, 242, 247 s.17 248, 252 s.18 147, 157, 158,208 s.28 42 s.29 44, 112, 114, 216--22 s.30 42, 43, 48, 86, 94, 114, 143,
184, 238 Transfer of Undertakings
(Protection of Employment) Regulations 1981
Regulation 2 Regulation 5 Regulation 6 Regulation 9 Regulation 10 Regulation 11
140 161 161 162
140-2 140-2
Police Act 1964 s.51
Wages Act 1986 264,265 Wages Council Act 1979
27,28 27
Acknowledgements
I should like to thank my employers, Industrial Relations Services, for allowing me to make use of their extensive range of source materials and for all the encouragement and assistance they have given me in the preparation of this book. I should also like to thank Nigel Moore of Simmons & Simmons (Solicitors) for the time he spent discussing the manuscript with me and for his invaluable comments.
EDWARD BENSON
xxvi
Abbreviations
ORGANISATIONS
ACAS CAC CBI CIR CRE EOC IRC ITF TUC
Advisory, Conciliation and Arbitration Service Central Arbitration Committee Confederation of British Industry Commission on Industrial Relations Commission for Racial Equality Equal Opportunities Commission Independent Review Committee International Transport Workers' Federation Trades Union Congress
COURTS AND TRIBUNALS
EAT NIRC
Employment Appeal Tribunal National Industrial Relations Court
STATUTES
EPA EP(C)A TUA TULRA
Employment Protection Act 1975 Employment Protection (Consolidation) Act 1978 Trade Union Act 1984 Trade Union and Labour Relations Act 1974
The text explains the law as it stood at 1st October 1986.
xxvii
Introduction
Most workers are motivated more by financial necessity than by industrial enthusiasm. Work, almost by definition, is something people would prefer not to have to do. But this fact alone could hardly explain the often violent tensions that industrial relations can engender, though it obviously does not improve matters. Traditionally, these tensions have been explained by the fundamental conflicts of interest between workers and their employer.
The most frequent source of conflict is the regulation of wages. The owners' judgment of what the business can afford is likely to be influenced by their desire to maximise profits, while the judgment of the workforce is likely to be influenced by their desire to maximise wages.
Most of the working population is employed not by a person but by some form of institution. Anyone involved in the management of that institution is likely to be employed in the sense that they too work for it; but with greater seniority there comes a greater association with the interests of the 'employer', at least in the eyes of those lower in the hierarchy. To any one worker, 'the employer' is represented by the immediate boss. Thus the term 'industrial relations', though sometimes described as the relationship between employer and employee, is perhaps more accurately described as the relationship between employees and those people the employees regard as representing the interests of the employer.
In the private sector, most employing institutions are limited companies. Such companies are run by the 'management', which is responsible to the board of directors. The board looks after general policy but is primarily there to protect the interests of the shareholders. The workforce therefore has only an indirect say in the running of the business. Admittedly, directors now have a statutory duty to take into account the interests of employees (s.46 Companies Act 1980), but this duty is owed to the company and can thus only be enforced by shareholders. Where shareholders' interests conflict with those of employees, the shareholders' enthusiasm to see that s.46 is observed may not be very forceful.
The same is broadly true in the public sector. Statutory bodies are set up and charged with the duty of providing goods or services to the
XXIX
XXX Introduction
public in a reasonably efficient way, though government subsidy may remove the most pressing reason for efficiency: the threat of extinction if financial losses get out of hand. Where the interests of the workforce are inconsistent with this duty, conflict may arise in the same way as in the private sector, though there may be less commercial pressure on management to override the wishes of the workforce and workers may feel less inhibited in the demands they make. The same industrial relations problems, perhaps to different degrees, therefore occur in both the public and the private sectors.
In a competitive world, the management's prime concern must be the interests of the business. A business structured in such a way that workers have too great a say may not survive: hence the bureaucratic structure of most large enterprises which concentrates power and authority in those most closely concerned with the interests of the employer.
As against an individual employee, the management is normally in a position to dictate both terms of employment and the way in which duties are to be performed. The employer (as represented by management) has little to lose if an employee, objecting to such terms, etc., decides to leave; while the employee, particularly in times of high unemployment, has a great deal to lose. In this sense it is sometimes said that the bargaining power of the employee is less than that of the employer. Since at common law the rights of workers stem from their contracts with their employers, this inequality of bargaining power may lead workers to enter agreements which are very far from what they would have liked. The law has long upheld a person's 'freedom' to enter into an agreement which will lead them to disaster (the hallowed principle of 'freedom of contract') and, except in extreme circumstances where 'undue influence' has been exerted, will not rescue a person from a contract merely because it is not particularly advantageous for them. So the rights conferred on employees by the common law are extremely limited.
Since the law could not protect employees from low wages, arbitrary dismissal, etc., workers had to find other ways to improve their bargaining power so as to equate, or more nearly equate, with that of the employer. This has traditionally been achieved by combining together. Nowadays, bargaining in combination with others - or 'collective bargaining'- is accepted as the norm, though it took many years and a number of Acts of Parliament before the courts could overcome their distaste for anything that smacked of conspiracy.
Collective bargaining, then, is bargaining which takes place between
Introduction xxxi
the employer, or someone representing the employer, and the workforce or a particular work group as a whole, via a representative. One danger with collective bargaining is that the representatives actually involved in negotiation may have very little to do with those who will be affected by the outcome. Obviously this danger is greater where the negotiators represent a large number of workers or an area of an organisation or industry; deals reached may not necessarily reflect the views of all those affected and may be wholly inappropriate for some work groups. In such circumstances, managers may be tempted to come to informal deals with particular work groups, via shop stewards, over and above those reached through the formal collective bargaining channels.
This can lead to anomalies in pay structures and in terms and conditions of employment generally. It may also encourage a wide variety of 'restrictive practices' -that is, practices which protect those in particular jobs from competition, but which restrict the efficiency of the enterprise- often, it seems, without the knowledge of the union or higher management.
Similar difficulties can arise in relation to procedural agreements. Grievance procedures laid down in industry-wide agreements may be by-passed. Where formal arrangements exist, workers with an interest in the outcome of a dispute may not be content to wait until the formal procedures have been exhausted. Moreover, such formalisation takes the resolution of the dispute out of the hands of those immediately involved, fuelling further frustration. This may be particularly so in the case of work groups with considerable industrial power, who see no need to use formal grievance procedures if the matter can be dealt with more quickly and effectively by unofficial industrial action.
'Centralised' bargaining, that is bargaining at industry-wide level or some other level higher than the workplace, may have its attractions in terms of efficiency, but it has proved, in many cases, to be too unwieldy to be a satisfactory way of conducting industrial relations. Centralised bargaining was blamed by the Royal Commission on Trade Unions and Employers' Associations (Cmnd 3623) for many of the problems that industry faced in the 1960s.
The reason for the appointment of the Royal Commission in 1965 was an economic one: namely the steady decline in the competitiveness of British industry. It was believed that this was attributable, at least in part, to the pattern of industrial relations in this country. The Commission was set up in 1965, under the chairmanship of Lord Donovan, to consider what, if anything, needed to be done to
xxxii Introduction
reform industrial relations. They published their report in 1968. Broadly the Commission accepted collective bargaining as the
correct way of conducting industrial relations, but sought to overcome the problems they found by encouraging greater formalisation of bargaining procedures at factory or company level rather than at national or industry level.
The problem was that the informal system which had developed alongside the formal system was so firmly engrained that there seemed to be no way of forcing change without major disruption. In any case, these haphazard arrangements often suited managers and shop stewards. They were flexible and not subject to interference by outside bodies which had no knowledge of the particular circumstances and personalities involved. But the disadvantages outweighed these advantages. The informal arrangements were unfair, illogical and impossible to enforce, because so few people actually understood or even knew about them. They were unwritten and unstable, and largely based on 'custom and practice'.
Reform could only be achieved, the Commission thought, by voluntary means rather than by legal enforcement. The role of the law, they considered, should be strictly limited to assist in the smooth running of collective bargaining. Thus formal recognition by employers of unions and their shop stewards should be encouraged but not made obligatory and collective bargaining should be supported by, for example, outlawing any form of victimisation of union members. Legally enforceable rights for workers should only be granted where collective bargaining alone could not provide them.
This, they hoped, would lead to a more uniform approach which would iron out the anomalies that often gave rise to unofficial action. At the same time, it would facilitate the implementation of government incomes policy, which, it was thought, had failed in the past because of the impossibility of keeping the unstructured wagenegotiating machinery under control. It would also mean that restrictive practices would be brought out into the open and eliminated by negotiation under the improved bargaining arrangements that the Commission hoped would follow. Unions and employers' associations should no longer take part in the pretence that their negotiations had any significant impact on what went on in practice, but would take on a more advisory and supportive role.
Though not all of the Commission's proposals for legislative reform were put into effect, the general recommendations concerning the promotion of collective bargaining at the workplace strongly
Introduction xxxiii
influenced events in the 1970s. For example, ACAS was set up in 1975 to assist in improving industrial relations and promoting effective collective bargaining. Individual employees were given a right 'not to be unfairly dismissed' (originally under the Industrial Relations Act I971) and a variety of other 'employment protection rights' for which, it was considered, employees should not be required to bargain.
The Commission's recommendation to introduce these employment protection rights perhaps indicates a weakness in the Donovan thesis. If collective bargaining was unable to protect employees from unfair dismissal, why was it regarded as effective in other areas? Another possible mistake was to assume that formalising procedures would have any economic impact. Ultimately, the determining factor in any negotiation is the relative bargaining strengths of the parties: something the Donovan reforms would be unable to influence. Tinkering with the means by which negotiations take place could only have minimal effect. It remains as true today as it was before the Donovan reforms that a work group with a lot of power may exercise it in its own favour, while management may still exploit work groups with little power.
The result of the reforms was certainly an improvement in terms of formalising procedures. A survey carried out by the Department of Employment, the Policy Studies Institute and the Social Science Research Council1 found a considerable increase in the late 1970s in the extent to which trade unions were recognised and to which formal workplace procedures had been introduced. But they found that this had had little impact on industrial action. If anything, trade union recognition and high levels of membership appeared to increase the chances of industrial action.
So far as pay levels were concerned, they found a clear link between higher levels of pay and high membership or recognition of trade unions for manual workers; though for non-manual workers, trade union membership and recognition appeared to make little difference. This was during a period of supposed wage restraint. So much for the Donovan assumption that improved procedures would enable incomes policies to be imposed more effectively!
Formalisation of factory or company agreements did not appear to have had the beneficial economic effects that the Donovan Commission had predicted. No inroads were made on restrictive
1. W. Daniel and N. Millward, Workplace Industrial Relations in Britain (London: Heinemann, 1983).
xxxiv Introduction
practices and an effective incomes policy proved as elusive as ever. But this may simply indicate that too much was expected of the reforms. What they did achieve was an improvement in the process of collective bargaining: a result valuable in itself. Furthermore, the clearing of the obscurity that had surrounded collective bargaining in the past revealed some of the underlying conflict between management and workers, which is perhaps better expressed than repressed.
However, the economic problems remained unsolved. The Conservative Government elected in 1979 tried an entirely different approach. The solution, the government thought, was to reduce the effectiveness of trade unions and thereby interfere with the balance in collective bargaining in favour of management. The first assumption was that the management is in the best position to know what is good for the business - and hence, it is argued, the workforce - so that management alone should take decisions about running the business; and second, that the majority of union members realise this and would, but for a vociferous and politically motivated minority, never wish to resort to industrial action to interfere with managerial decisions. Two methods to achieve this reduction in union power were used. First, the types of industrial action that the law would allow were severely restricted. Second, the closed shop was made considerably more difficult to enforce.
The important point about recent reforms is the 'step by step' approach. Even now, much of the legislation brought in by the Labour Government in the 1970s, which was strongly influenced by Donovan, remains on the statute-book. Thus the legislation (or some of it) still encourages collective bargaining and the use of formal workplace procedures (the remains of Donovan) but the bargaining power of the unions and the ability of work groups to obstruct management initiatives have been reduced (the recent amendments).
So there are now three ways in which the law intervenes in the practice of industrial relations:
- providing, in certain circumstances, a minimum floor of workers' rights which collective bargaining alone cannot provide;
- establishing machinery to assist in the smooth running of collective bargaining;
- limiting the combined power of a workforce by restricting the closed shop and by outlawing certain forms of industrial action.