Collective Agreements: The Kahn‐Freund Legacy
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01556.x |
| Date | 01 November 1979 |
| Published date | 01 November 1979 |
COLLECTIVE
AGREEMENTS
:
THE
KAHN-FREUND
LEGACY
THE
presumption that the parties to collective agreements do not
normally intend to create legal relations was confirmed by
Ford
Motor
Co.
v.
A.E.F.'
and is now embodied in the Trade Union and Labour
Relations Act
1974,
s.
18.
The developments of the last decade, how-
ever, should not obscure the fact that before the Second World War
collective agreements were regarded as contracts on the assumption
that the parties were able to meet the requirements
of
contract for-
mation, including intention.
It
was only
in
1954,
with the publication
of
Kahn-Freund's chapter in
Flanders and
Clegg?
that the non-
contractual status
of
collective agreements was elaborated. An
examination
of
the origin
of
Kahn-Freund's theory provides a fresh
perspective on collective bargaining law.3
The story begins towards the end
of
the last century, when in
1894
the Royal Commission on Labour reported that collective agree-
ments were unenforceable as contracts for two reasons. The
less
important reason was section
4 (4)
of the Trade Union Act
1871,
which provided that:
''
Nothing in this Act shall enable any court
to entertain any legal proceedings instituted with the object
of
directly
enforcing or recovering damages for the breach of . . . any agreement
made between one trade union and another." Since an employers'
association fell within the statutory definition of a trade union,5 a
collective agreement with an employers' association was not directly
enforceable, and, it must be emphasised, such agreements were the
norm in the
1890s
and for three or four decades afterwards. But
the fundamental reason for non-enforceability was that trade unions
were thought to lack legal personality to make contracts, an incapa-
city which was not remedied by the provisions of voluntary
registration in the
1871
Act.
"
Collective agreements are, as a matter of fact, frequently made
between great bodies of organised workmen and employers.
which bodies have no legal personality and cannot sue or be
sued for damages occasioned
by
the breach
of
such agreements
by sections
of
their members. There is collective action without
legal collective responsibility. While this state of things lasts it
does not appear that such collective agreements can be, as
1
C19691
2
Q.D.
303.
2
"
Legal Framework
"
in
A.
Flanders and
H.
A
Clegg,
The Systeni
of
Industrial
Relations
in
Great Britain
(1954).
3
This
is
only one aspect
of
Kahn-Freund's immense importance in British labour
law, sec R. Lewis,
"
Kohn-Freund and Labour Law: An Outline Critique
"
(1979)
8 I.L.J. (December);
T.
M.
Partington's
"
Introduction
"
to
Selected Writings:
0.
Kahn-Freund
(1978);
K.
W. Wedderburn,
"
British Labour Law and Olto Kahn-
Freund: 1971," Bull.Ind. Law SOC.,
No.
11, September 1971.
4
Fifth and Final Report of the Royal Commision on Labour, c. 7241 (1894).
5
For the composite definition in the Trade Union Acts 1871-1940,
see
K.
W.
Wedderburn,
Cases and Materials
on
Labour
Law
(1967),
p.
537.
613
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