British Associated ports v Transport & General workers Union
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE STUART-SMITH |
| Judgment Date | 07 June 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0607-1 |
| Docket Number | 89/0535 Ch. 1989 P. No. 3707 Ch. 1989 M. No. 3866 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 June 1989 |
[1989] EWCA Civ J0607-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL.(CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR JUSTICE MILLETT
Royal Courts of Justice
Lord Justice Neill
Lord Justice Butler-Sloss
Lord Justice Stuart-Smith
89/0535
Ch. 1989 A. No. 3705
Ch. 1989 P. No. 3707
Ch. 1989 M. No. 3866
Ch. 1989 A. No. 3705
Ch. 1989 P. No. 3707
Ch. 1989 M. No. 3866
and
and
MR R. FIELD Q.C., MISS E. SLADE and MR N. GRIFFIN (instructed by R.V. Pearce, Esq.) appeared, on behalf of the first appellants.
MR J. GOUDIE Q.C. and MR P. ELIAS (instructed by Messrs Gregory Rowcliffe & Milners, agents for W.J. Bowley, Esq.) appeared on behalf of the second appellants.
MR D. SEROTA Q.C. and MR A. CLARKE (instructed by Messrs Masons) appeared on behalf of the third appellants.
MR E. TABACHNIK Q.C., MR J. BOWERS and LORD WETHERBURN OF CHALTON (instructed by Messrs Pattinson & Brewer) appeared on behalf of the respondents.
Mr Goudie and Mr Tabachnik, the court has come to the conclusion that, in view of the question of time in this case, which is so important, we should say this right at the outset, that we propose to allow the appeal and grant an injunction. We will give our reasons now but they will take some time to deliver.
In these three appeals the appellants (whom I shall call "the employers") are Associated British Ports (a corporate body), the Port of London Authority and the Mersey Docks and Harbour Co.
Each of the employers is a registered employer within the meaning of the Dock Workers Employment Scheme (which I shall call "the 1967 Scheme"), as set out in schedule 2 to the Dock Workers (Regulation of Employment) (Amendment) Order 1967 made under the Dock Workers (Regulation of Employment) Act 1946.
The employers appeal against the order of Millett J. dated 27th May 1989 whereby he dismissed their motions for orders that the defendant in the action, the Transport and General Workers Union (whom I shall call "the Union"), whether acting by itself, its officers, officials, servants, agents or otherwise howsoever, should be restrained by injunction from:
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(a) instructing, encouraging, advising or in any other way inducing its members or any of them who is a Registered Dock Worker to act in breach of his contract of employment with the relevant employer by withdrawing his Labour or otherwise refusing to carry out his duties as a Registered Dock Worker; or
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(b) threatening to instruct, encourage, advise or induce its members or any of them who is a RDW as aforesaid.
The appeals raise questions as to (inter alia) the proper construction and effect of the 1967 Scheme and in particular of clause 8(5)(b) of the 1967 Scheme,
The matter comes before the court as a matter of urgency and in circumstances to which I shall refer in more detail later.
A History of the 1967 Scheme
The 1967 Scheme, which is the scheme at present in force, regulates the employment of dock workers at many of the major British ports. The ports to which the scheme relates are set out in Appendix 1 to the Scheme. The scheme is made under the 1946 Act which, so far as is relevant, provides in section 1 as follows:
"(1) Provision may be made by scheme under this Act for ensuring greater regularity of employment for dock workers and for securing that an adequate number of dock workers is available for the efficient performance of their work."
Then in section 1 (2) it goes on:
"In particular a scheme may provide:
(a) for the application of the scheme to dock workers and employers as may be specified therein, for prescribing the obligations of dock workers and employers subject to the fulfilment of which, the scheme may apply to them and the circumstances in which the scheme shall cease to apply to any dock workers or employers, and for prohibiting or restricting the employment of dock workers to whom the scheme does not apply and the employment of dock workers by employers to whom the scheme does not apply.…"
Then there are other provisions to which I need not refer in detail.
The first scheme made under the 1946 Act came into force in June 1947. It established the National Dock Labour Board which was responsible for administering the scheme and also local Dock Labour Boards made up of equal numbers of employers and workers' representatives.
It will be seen that the object of any scheme made under the 1946 Act is two-fold:
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(a) to ensure greater regularity of employment for dock workers; and
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(b) to ensure that an adequate number of dock workers is available for the efficient performance of their work.
This object had previously been partially achieved by a number of non-statutory schemes based on collective agreements which provided for a system of registration of Dock Workers at all ports except Glasgow and Aberdeen. These non-statutory schemes were designed to regulate the supply of dock labour and to end what Millett J. rightly called the "degrading" system of casual labour. Furthermore, during the course of the 1939/45 war the employment of dock workers was regulated by a series of orders made under Regulation 58A of the Defence of the Realm General Regulations.
It is not necessary for the purpose of these appeals to trace the amendments to the 1947 Scheme which were introduced in 1960 and 1961. It is sufficient to turn at once to the 1967 Scheme. The main features of this scheme may be listed as follows:
(1) In certain specified ports no person other tijan a registered employer and the National Dock Labour Board itself may engage for employment or employ any worker on dock work.
(2) With certain exceptions (which are immaterial for present purposes) a registered employer may not engage for employment or employ a worker on dock work unless the worker is a Registered Dock Worker.
(3) Registered Dock Workers (whom I will call "RDWs") fall into three categories—permanent workers, temporarily unattached workers (whom I will call "TUWs") and supplementary workers.
(4) It is a criminal offence for anyone who is not a registered employer to employ any person on dock work in a scheme port or for any registered employer to employ anyone on such work who is not a RDW.
(5) In effect the scheme created a statutory monopoly in favour of registered employers and RDWs.
(6) RDWs are allocated by local boards to registered employers, who are obliged to accept them. RDWs can be dismissed only with the approval of the local board and the provisions of the Employment Protection (Consolidation) Act 1978 have no application.
Under the 1967 Scheme provision was made that RDWs should be placed on the Temporarily Unattached Register if the employer went out of business or ceased to be a registered employer.
Since 1974, however, (as a result of the Jones-Aldington Agreement) such dockers are no longer placed on this Register but are re-allocated to other employers who are obliged to accept them. As a mesult the only men who are TUWs on the Temporarily Unattached Register are dockers who have been dismissed for misconduct and who are awaiting the determination of their case by a Local Board.
I shall have to return later to examine some of the provisions of the 1967 Scheme in more detail.
Recent Developments
For some years the registered employers in the scheme ports have sought to renegotiate the 1967 Scheme. On the other hand the Union has resisted all attempts to amend or abolish it. In the end the efforts to renegotiate the scheme proved to be unsuccessful and there came a stage when the registered employers began to direct their efforts to persuade the Government to introduce legislation to abolish the scheme.
At this stage I can gratefully adopt the account given by the judge of the background to the present proceedings. I refer to page 1 of the judgment at B:
"On the 6th April 1989 the Government announced its intention to introduce legislation to abolish the National Dock Labour Scheme, and published a White Paper setting out its reasons for doing so. The Dock Work Bill obtained its First Heading on the 7th April, and unofficial strike action in protest at the Government's proposals took place in several of the Scheme ports on the same day.
The abolition of the Scheme was welcomed by the port employers. They have long championed the cause of abolition and had actively campaigned for it. It was vigorously opposed by registered dock workers in the Scheme ports, and by the defendant union to which nearly all of them belong. In the past the Union has resisted all attempts to make any significant changes to the Scheme, and it had long been the declared policy of the Docks Trade Group within the Union, supported by the leadership, that any threat to the continuance of the Scheme would be met by a national dock strike.
On the 11th April the Union's Dock and Waterways Trade Group National Committee voted unanimously in favour of recommending the holding of an immediate ballot of registered dock workers for strike action in defence of the Scheme. The Union's General Executive Council…met at Transport House on the 14th April. Following the meeting, the Executive Council issued a statement. This registered 'the total opposition of the Union to the abolition of the Dock Labour Scheme' and declared the Union's intention 'to use all lawful means to oppose this at every stage of its Parliamentary procedure'. The statement continued by demanding an urgent meeting with...
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