Associated British Ports (a Corporate Body) v Transport and General Workers Union ; Mersey Docks and Harbour Company v Transport and General Workers Union ; Port of London Authority v Transport and General Workers Union
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Roskill,Lord Ackner,Lord Goff of Chieveley,Lord Lowry |
| Judgment Date | 21 June 1989 |
| Judgment citation (vLex) | [1989] UKHL J0621-1 |
| Date | 21 June 1989 |
| Court | House of Lords |
[1989] UKHL J0621-1
House of Lords
Lord Bridge of Harwich
Lord Roskill
Lord Ackner
Lord Goff of Chieveley
Lord Lowry
My Lords,
The reasons for your Lordships' decision to allow this appeal are fully and accurately formulated in the speech of my noble and learned friend Lord Goff of Chieveley.
It is right to point out that the Court of Appeal were never invited to examine the complex provisions of the National Dock Labour Scheme in order to determine the basic question whether clause 8(5)( b) of the Scheme imposed on registered dock workers a statutory obligation to work independent of, and additional to, their contractual obligation. In the Court of Appeal it does not appear to have been seriously contested that it did so. The comprehensive analysis of the provisions of the Scheme, both in its original form in 1947 (the Dock Workers (Regulation of Employment) Scheme 1947 (S.I. No. 1189 of 1947)) and as amended in 1967 by the Dock Workers (Regulation of Employment) (Amendment) Order 1967 (S.I. No. 1252 of 1967, undertaken by my noble and learned friend demonstrates that the clause imposed no such statutory obligation, but was included in the Scheme for the sole purpose of defining the extent of the contractual obligation to work of registered dock workers allocated to registered employers applicable only in a case where the extent of that obligation was not defined by a national or local agreement. It thus becomes unnecessary for your Lordships to express any opinion on the questions canvassed in the courts below with respect to the economic torts on which the respondents based their claim for an injunction.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Goff of Chieveley. I agree with the reasons which he has given for the dismissal of the union's appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Goff of Chieveley. I agree with the reasons which he has given for the dismissal of the union's appeal.
My Lords,
On 27 May, following a hearing which lasted eight working days, Millett J. refused to grant an application by the three respondents (Associated British Ports, the Port of London Authority and the Mersey Docks and Harbour Co. — which I shall refer to collectively as "the employers") for an interlocutory injunction restraining the appellants, the Transport and General Workers Union ("the union"), from calling a strike of dock workers at registered ports in England. On 7 June, the Court of Appeal allowed an appeal by the employers, and granted the injunction requested by them. The union then appealed to your Lordships' House, by leave of the Court of Appeal. On 21 June your Lordships' House allowed the appeal and discharged the injunction, for reasons to be given later.
The background to the present proceedings is set out in lucid detail in the judgment of the judge. The proceedings have arisen out of the proposed abolition of the National Dock Labour Scheme ("the Scheme") by legislation (the Dock Works Bill) which received its first reading on 7 April and now, having been passed by both Houses of Parliament, has come into force. The employers are the principal employers of dock workers at registered ports. They, and other port employers, have campaigned for the abolition of the Scheme, whereas the union's policy has for long been that any threat to the continuance of the Scheme will be met by a national dock strike. Following the introduction of the Bill to abolish the Scheme, the union's executive council announced the union's total opposition to the abolition of the Scheme, and demanded an urgent meeting with the National Association of Port Employers ("NAPE") to establish national conditions no less favourable than the current provisions under the Scheme. A meeting on 18 April between representatives of the union and NAPE was not productive. On 20 April, it was announced that the union would proceed to ballot its registered dock worker ("RDW") members for authority to take industrial action in furtherance of the union's industrial dispute with NAPE. The ballot took place between 10 and 11 May, and resulted in a large majority in favour of strike action. The employers then commenced these proceedings for an injunction on the ground that the threatened strike was unlawful.
Section 13(1) of the Trade Union and Labour Relations Act 1974 , as substituted by section 3(2) of the Trade Union and Labour Relations (Amendment) Act 1976, provides as follows:
"An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on the ground only —
( a) that it induces another person to break a contract or inteferes or induces any other person to interfere with its performance."
The principal ground on which the employers claimed that the threatened strike was unlawful was that no genuine trade dispute existed between the RDWs and the employers. The contention was that the union was determined to hold this strike in pursuance of its long-established policy that any threat to the Scheme would be met by a national dock strike; this was said to be the real nature of the strike — all that the union was doing was to manufacture a bogus dispute to provide legal cover for its illegal action. Subsidiary to this main allegation, further allegations were made by the employers that, even if there was a genuine trade dispute, the threatened strike would not be in furtherance of it; that the parties to the dispute were not the workers and the employers (as required by section 29(1) of the Act of 1974) but the union and the employers; that the dispute did not "wholly or mainly" relate to matters specified in section 29(1) of the Act of 1974, but was mainly (if not wholly) with the Government over its proposal to abolish the Scheme and with the employers over their participation in bringing about a change in the law; and that the threatened strike had not been supported by the necessary ballot as required by section 10(1) of the Trade Union Act 1984. After hearing evidence, the judge rejected all these arguments; none was pursued before the Court of Appeal.
However, before the judge a separate point was raised by the employers. This was founded upon a provision contained in clause 8 of the Scheme in the form which the Scheme took following amendments made in 1967. Clause 8 is concerned with obligations of RDWs under the Scheme, and clause 8(5) provides that a permanent worker and a temporarily unattached worker (terms defined in the Scheme which I shall explain later) while in the employment of a registered employer shall:
"( b) work for such periods as are reasonable in his particular case."
Fastening upon this provision, the employers contended that RDWs who went on strike would be in breach of their statutory duty under clause 8(5)( b); and they further contended that the union, in calling RDWs out on strike, was committing or threatening to commit either the tort of inducing the RDWs to break their statutory duty under that clause, or the tort of intentionally causing damage to the employers' business by such unlawful means, both of which torts were, they contended, outside the statutory immunity conferred by section 13(1) of the Act of 1974. These allegations raised questions of some difficulty relating to the scope of the economic torts invoked by the employers. However the judge considered that there was a short answer to these submissions of the employers in that, having regard in particular to the provisions of section 1 of the Dock Workers (Regulation of Employment) Act 1946, under which the original Scheme was made, the so-called "obligations" resting on RDWs under clause 8 of the Scheme, although expressed in terms of obligation, were in truth no more than conditions of the application of the Scheme to them. He said:
"In my judgment, the purpose of clause 8(5) is twofold: (i) to set out the conditions for the application of the Scheme to registered dock workers and (ii) to standardise the terms and conditions of employment of registered dock workers by curtailing the powers of employers and dock workers to vary the terms of engagement. Its object is to protect the registered dock worker from the imposition of any contractual requirement that he should do more, and to prevent him from demanding, as a term of his engagement, that he should do less. I do not regard it as imposing, as a statutory obligation owed to his employer, a positive requirement to do that which would in all normal circumstances necessarily be implied into his contract anyway."
Having rejected this contention also, the judge declined to grant the interlocutory injunction requested by the Employers. However, on the basis that his conclusion on this aspect of the case might not be correct, he considered whether an interlocutory injunction might in such circumstances be granted on the principles laid down in American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396. He expressed his conclusion on this point as follows:
"Damages are a wholly inappropriate and inadequate remedy for both sides; certainly inadequate for the plaintiffs and utterly inappropriate for the union.
I am bound, in my judgment, to approach the question of the balance of convenience on this last aspect of the case by my evaluation of the plaintiffs' prospects of success at the trial and, having construed the Scheme to the best of my ability, I...
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