COLLECTIVE AGREEMENTS AND THE LAW
| Published date | 01 July 1969 |
| Author | Norman Selwyn |
| Date | 01 July 1969 |
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb01222.x |
COLLECTIVE AGREEMENTS AND THE LAW
IN
1955
the Ford Motor Company negotiated an agreement with
nineteen trade unions which provided,
inter
alia,
that
cc
at each
stage of the procedure set out in this agreement, every attempt will
be made to resolve issues raised and that until such procedure has
been carried through there shall be no stoppage of work
or
other
unconstitutional action.” At the time the agreement was nego-
tiated, did the parties thereto intend
it
to be a legally binding
agreement,
or
was
it
to be binding in honour only
?
had said to the parties represented on the National Joint Negotiating
Committee (N.J.N.C.)
cc
Do
you intend to create legal relations?”
he would, in all probability, have received some blank looks. Had
the point been pursued further, and had
it
been explained that
what was being referred to was the use of legal sanctions in the
event of breaches of the agreement,
it
is quite likely that the
employers and the unions might have given some strange,
if
not
conflicting answers. They may even have said that the point was
academic and theoretical. But since contemporary records do not
disclose what the parties’ intentions were at the time, we can only
speculate.
The unenviable task of indulging in an exercise of retrospective
telegnosis fell to Geoffrey Lane
J.,
when, fourteen years later, the
matter came before him on an application for interlocutory injunc-
tions restraining two major industrial unions from calling an official
strike contrary to the
1955
agreement.3 As well as the
1955
agree-
ment (which was largely concerned with procedural matters) an
agreement had been signed in
1967
(the
cc
price list
”
agreement)
which confirmed the
1955
procedural clause, and (allegedly)
a
further agreement had been negotiated in
1969.
The defendant
unions were opposed to some’ of the terms of the latter agreement,
having voted against
it
in the N.J.N.C., but, being outvoted,
resorted to industrial action.
Geoffrey Lane
J.
made
it
clear that he was not dealing with the
merits of the dispute, nor with what was alleged to be the
cams
belli,
i.e.,
the Government’s Incomes Policy. The court
cc
is merely
concerned with the strict legal problems involved, regardless
of
their
impact and regardless of their consequence.” But in the emotional
If,
in
1955,
the lawyer’s favourite interfering officious bystander
1
Blue Book, clause
1
(d).
2
Borrowed for this purpose from the implied term theory, see
Shirlaw
v.
3
Ford Motor
Co.
Ltd.
v.
Amalgamated Union
of
Engineering and Foundry
4
[1969]
1
W.L.R.
339, 347.
Southern Foundries Ltd.
[1939]
2
E.B.
206,
227.
Workers
and Others
[1969] 1
W.L.R.
339.
377
378
THE
MODERN
LAW REVIEW
VOL.
32
atmosphere of the court-room the learned judge must have found it
extremely difficult to isolate the grave issues of social policy which
were at
take.^
For the case came at
a
time when the matter to
be decided,
i.e.,
the legal enforceability of collective agreements,
was itself a major issue on the political husting~.~
A
number of legal issues, as well as practical difficulties were
raised. Did the negotiations of
1969
ever reach the stage of an
agreement between Fords and the unions
?
If
so,
were the defendants
bound by an agreement despite voting against
it
on the
N.J.N.C.,
in the absence of any provision for the democratic acceptance of
decisions made
?
Were the agreements too vague for legal enforce-
ment? Weas the strike not, in fact, in breach of the agreement?
’
But the central issue was, did the parties intend
it
to be a legally
binding arrangement? Geoffrey Lane
J.
held that they did not,
because there was
cc
a climate of opinion adverse to enforceability,”
and, having
so
found, the matter was at an end and the plaintiffs
must fail in their application.
THE
(‘
No
INTENTION
”
THEORY
It
is an elementary proposition of English law that before
a
contract
can come into effect, the parties must intend to create legal
relations.” In fact, the concept is probably one of comparatiwely
recent origin, though, like many common law ideas,
it
has been
well nurtured by textbook writers, who like to see legal concepts
in nice, neat categories, suitable for inclusion .in appropriate
chapters.0 However, certain problems do arise.
If
the parties
expressly state their intention to be bound,
or,
more likely, not to
His comments throughout the case made his concern quite clear, see
The
Times,
March 4-6, 1969.
Future historians may seek evidence of this in current newspapers and
periodicals.
A
further point raised by Mr.
P.
Pain, Q.C., for the defendants (Transcript,
Day 3, pp. 61-62) was that since the legislature gave wide immunities to
trade unions from actions in tort,
it
could not have intended that they should
be held liable for breach of contract, where damages, in theory, could be much
greater. The leerned judge does not refer to this point in his judgment, wisely
refraining from speculating about the intentions
of
Parliament. An analysis
of the views
of
the Royal Commission of 1869 (11th and Final Report, Cd.
41231
as
well
as
those exmessed by the Government
of
the day
(Hansard.
Feb;uary 14, 1871,
col.
2g7)
seemsko indicate that
it
was not ihe intention
of the legislature to render collective agreements unenforceable by the Trade
Union Act 1871: see Gayler,
6th
Annual
Conference on Labor Law
(New
York University),
p.
107.
8
This article is concerned solely with this issue.
5
It
is interesting to note that
all
the modem textbooks on the
law
of contract
treat this topic either in
a
separate chapter, or under some well defined sub-
heading; older books are less detailed, and gome do not even mention the point,
e.g.,
see
Addison,
Law
of
Contract,
(8th ed., 1883). ettainly there are
plenty
of
early authorities which confirm that contracts must not be the
sports of an idle hour, mere matters of pleasantry and Pftdinage, never intended
by the parties to have any serious effect whatsoever
(per
Lord Stowell
in
Dalrymple
v.
Dalrymple
(1811)
2
ECag.Con. 54, 105). One would scarcely
describe modem collective bargaining
as
an exchange of pleasantries.
To continue reading
Request your trial