Judges and the Law in British Industrial Relations: Towards a European Right To Strike
| Published date | 01 June 1995 |
| DOI | 10.1177/096466399500400202 |
| Author | Roger Welch |
| Date | 01 June 1995 |
| Subject Matter | Articles |
JUDGES AND THE LAW IN
BRITISH INDUSTRIAL
RELATIONS: TOWARDS A
EUROPEAN RIGHT TO STRIKE
ROGER WELCH
Anglia Polytechnic University
I
INTRODUCTION
INCE
THE
unveiling of the Social Charter in May 1989, there has been an
increasing interest in the notion that there should be some degree of
uniformity in laws regulating labour relations within EC/EU member
states. This development has been compounded by the adoption of the Protocol
on Social Policy to the 1991 Maastricht Treaty (the Social Chapter). The
exception in this context is of course the government of the United Kingdom.
Hostility expressed by Margaret Thatcher to a Charter which she regarded as
introducing socialism by the back door culminated in John Major’s decision that
Britain should opt-out of the Social Chapter. However, this very hostility at
governmental level to social developments in the EU has created an intensified
interest in European systems on the part of increasing numbers of British trade
unionists, as they see themselves excluded from rights and benefits accorded to
their European counterparts.
One consequence of this increased interest in European labour laws has been
an ongoing debate as to the differences between the British and European
systems of industrial relations and laws regulating industrial conflict, why they
exist and whether they should be reduced or even eliminated. A central aspect of
this debate derives from the generally accepted perspective that the traditional
SOCIAL &
LEGAL STUDIES (SAGE, London, Thousand Oaks, CA and New Delhi),
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,175-
(1995), 175-196
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system of industrial relations in Britain was based on voluntarism, which was
exemplified by a system of immunities to insulate industrial conflict from legal
regulation. While it is stating the obvious to comment that today this tradition
has been eroded to the point of extinction, it remains contentious whether
pro-union reforms should resurrect a system based on the principle of legal
abstentionism through restoration of the immunities, or should rather adopt a
European legal framework which is based on the provision of rights.
The objective of this article is to consider this issue in the context of industrial
conflict from a legal/historical perspective by offering a critique of the nature of
voluntarism in Britain; and, in the light of that critique, to discuss whether it is
desirable to move towards the establishment of common rights to strike
throughout the EU.
THE VOLUNTARIST TRADITION IN BRITAIN
Authoritative analyses of the British system of industrial relations (for example:
Clegg, 1979; Crouch, 1982; Wedderburn, 1986) have generally accepted and
propounded the characterization of that system as voluntarist; at least until the
legislative changes that have been introduced systematically since 1980. This
characterization was and is predominantly associated with the writings of
Kahn-Freund, who placed great emphasis on the abstentionist role that the law
played in the British system, and who encapsulated his analysis in the description
of that system as developing and operating on the basis of ’collective laissez-faire’
(1972).
The essence of Kahn-Freund’s analysis was that the British industrial relations
system was free from state and legal regulation. The role of government and the
state was not so much to impose institutional frameworks and legal obligations
on employers and unions as to pursue policies and create tripartite structures
which would promote orderly industrial relations. How and to what extent
employers and unions entered into bargaining relations was to be decided by the
parties themselves. Thus, a decision by an employer to recognize a union, or to
accept a closed shop, was a voluntary act. At the core of this system was a
network of non-legally enforceable collective agreements entered into at both
national and workplace levels. In so far as pressure would be put on an employer,
this would be industrial rather than state-imposed in nature. Moreover, where
disputes resulted in industrial action the system of immunities, contained in the
Trades Disputes Act 1906, were intended to ensure that the law would be of no
or
little assistance to employers seeking a resolution to the dispute on their terms.
For Kahn-Freund this system stood in stark contrast to the industrial relations
system which operated in his native Germany - both before and after the Nazi
Third Reich. The Federal Republic, as did the Weimar Republic, gave
constitutional status to trade unions as representatives of workers. Collective
bargaining operated on a centralized basis, particularly at regional level, and
peace obligations incorporated into legally-binding collective agreements oper-
ated as an important restriction on the right of unions to organize industrial
177
action. At workplace level co-determination was imposed by the 1952 Works
Constitution Act. This required employers to reach agreement with works
councils in a number of areas including health and safety, working time
arrangements and the provision of welfare facilities. On the other hand, works
councils were prohibited from organizing industrial action; unresolved disputes
had to be referred to a labour court. This highly regulated system remains
fundamentally different from the British system today, let alone in the 1950s
when Kahn-Freund developed his thesis of collective laissez-faire.
It is easy to see in this context how the concept of voluntarism appears to
encapsulate the whole system. Moreover, Kahn-Freund’s assessment of the
collective bargaining process was an accurate reflection of the period. In his view
employers and unions believed they operated within ’highly developed forms of
labour-management relations; a higher community of intergroup relations than
could be erected by the crude blunt instruments of legal norms and sanctions,
which signified the collapse of community rather than its promotion’ (quoted in
Fox,1985: 370).
For me, the problem with the term ’voluntarism’ is its implications for
understanding the real nature of the relationship between the law and the taking
of industrial action. The mainstream view is that the Trade Disputes Act 1906
provided the bedrock of the development of a voluntarist system by giving trade
unions, their officers and their members immunities from the liabilities in tort
that had been developed by the judges during the previous decade. As has been
argued by Crouch (1982), once the judges accepted the strengthening of the
immunities provided by the Trades Disputes Act 1906, government through the
Ministry of Labour:
... adapted itself to, and in turn helped to shape, the essentially voluntarist nature
of British industrial relations ... the Ministry thus contributed to that tradition of
the avoidance of legalism and the insulation of industrial disputes from politics
which suited the interests of different groups at different times, but which was
preferred by virtually all those involved at the time of the war-time and post-war
consensus. (Crouch, 1982 : 30)
Similarly, in their recent invaluable historical analysis of the post-war
industrial relations system, Davies and Freedland (1993), in explaining the effects
of the legislation of the 1870s and the 1906 Act, inform us that:
Without these ’negative’ statutes two important elements of the collective
bargaining system - the freedom of employees to combine in trade unions and to
apply collective sanctions against employers - would, in fact, have been subject to
detailed regulation by the common law, to the point where self-regulation would
have appeared to be a wholly one-sided system in the employer’s favour. (1993:15)
In explaining Kahn-Freund’s analysis they also state:
Looking at it from the point of view of the state, one might say that the state had
delegated the task of ordering working life to the social institutions created by
178
employers and workers, whilst according to those social institutions a very
substantial degree of freedom of action. (1982:10)
Wedderburn has argued that voluntarism has to be understood as a system that
’rested upon a middle-class acquiescence in the current balance of industrial
power’. Lewis ( 1976, 1979), in endorsing this perspective, has analysed how that
system had broken down by the 1970s. The essence of Davies and Freedland’s
work, building on these insights, is that voluntarism could never have survived in
the form in which it had emerged after the Second World War, given the
re-emergence of the twin problems of unemployment and inflation from the
1960s onwards. However, all these writers appear to accept Kahn-Freund’s
perspective that it had been the goal of the state to encourage and facilitate
employers and unions developing a system of industrial relations largely
autonomous from state control and, in particular, legal regulation.
While to the extent they reflect historical fact such analyses are accurate, it will
be argued they are flawed in that they give insufficient weight to why the state in
Britain developed a policy based on legal abstentionism. The term ’voluntarism’
is useful in providing a basis for comparative analysis between the British and
other systems of industrial relations. However, ideologically, notions of a
voluntarist tradition and collective laissez faire suggest a neutral state - even a
state which is benevolent in its attitudes to organized labour.
My contention is that the voluntarist approach was part of a corporatist
strategy by the state to secure the co-operation of the trade...
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