LEGISLATION THROUGH ADJUDICATION. THE LEGAL ASPECT OF FAIR WAGES CLAUSES AND RECOGNISED CONDITIONS (II)
| Author | O. Kahn‐Freund |
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00100.x |
| Date | 01 October 1948 |
| Published date | 01 October 1948 |
LEGISLATION THROUGH ADJUDICATION.
THE
LEGAL ASPECT
OF
FAIR WAGES
CLAUSES AND RECOGNISED
CONDIT1,ONS
(11)
VIXI
Enough has been said in the preceding pages
to
show that, by the
end
of
the 'thirties, the Fair Wages Resolution of
1909
had
begun
to
look
very old-fashioned. Not only industrial relations them-
selves, the rapid growth of collective bargaining and of voluntary
conciliation and arbitration, but the draftsman's art had outstripped
the efforts of the Edwardians. New methods of defining standards
and
of
formulating sanctions had been developed and had found
their way into statutes and contracts. By
1087
the time had arrived
to
adapt the Fair Wages Resolution itself to the needs and attain-
ments of
a
new generation, and a tri-partite committee, consisting
of
representatives of the Government, the British Employers' Con-
federation and the Trades Union Congress was set
up
"
which, in
1042,
agreed upon
a
new resolution. This draft was published by
the Government and after the end of the war submitted
to,
and
passed by, the House
of
Commons."
An
attempt will be
made
to summarise the principal reforms which
it
introduces
:
1.
In addition to the obligation
to
pay fair wages and observe
fair conditions
a
contractor must now. undertake to
'
recogniee the
freedom of his work-people
to
be
members
of
Trade Unions
?.
The
Government
is
not,
of
course, by this clause enjoined
to
or
prevented
from insisting
on
the
'
closed shop
'
in
any of
its
many forms.
"he
resolution is neutral towards this question.
It
ostracisee what
ie
known
in English industrial history as the
'
document
'
I'
and
in
America as the 'yellow dog' contract.
In
1909
the freedom to
organise was still problematical
in
some sections of British industry
-the railway strike of
1911
is sufficient evidencelT-but,
in
1942,
it
had come
to
be recognised as one of the
'
rights of man
'
no
less
fundamental than any of the
droits
de
Z'homme
et
du
citoyen
written
into the Constitution of any State in the Old World
or
the New.
To
withhold this freedom is now considered as an unfair practice of a
bad employer. Hence its codification in the new Fair Wages
7'
Industrial Relations Handbook,
I.c.,
p.
137.
74
Cmd.
6990.
7s
On
Oct.
14,
1946.
4'27
Hansard, col.
718.
A
Conservative amendment whicb
tried
to
proscribo the
closed
shop was defeated (ibid.,
col.
706).
Alter that
the resolution
WOE
passed without
D
division.
Its
rinciples wcre unanimously
me
ted. The debate turned almoet entirely on tie closed
shop
problem.
'6
Web%, History
oj
Trade Unionism, p.
215.
7'
Webb,
I.c.,
p.
698.
429
480
TEE
MODERN
LAW
REVIEW
VOL.
11
Resolution could not meet with any resistance.
It
has ceased to be
an object of dispute and been lifted into the sphere of those uncon-
troverted principles of social life which are rarely discussed and
always
in
operation.’8
2.
The separation between wages and hours
on
one side and
‘
conditions
of
employment
’
on
the other which encumbered the
1900
resolution
has
been dropped. The contractor’s obligation
is
expressed
in
such
a
way
as
to comprise ‘rates of wages
.
. .
and
hours
and conditions of labour
’
equally. This follows the practice
adopted
in
the statutes discussed above under
VI.
Accordingly, the
test of what is
‘
less favourable
’
has become universal.
‘
The con-
tractor
shall
pay rates of wages and observe hours
and
conditions
of
labour
not less favourable than’ the standard
of
fairness.
(No.
1
(a).)
8.
That standard of fairness has been thoroughly redefined.
Here the new resolution reflects not only the growth of collective
bargaining but also the development of its methods and the improve-
ment in the actual observance of collective standards. The primary
obligation
of
the employer is to observe the terms
of
collective
agreements and voluntary awards.
No
longer is
it
relevant whether
these terms are
‘
commonly recognised
’.
What matters is whether
they are
‘
established
’.
The agreement or award
as
such, not the
extent
to
which it succeeds in creating
a
habit of behaviour, is the
criterion. The uncodified
‘
trade practice
’,
on the other hand,
is
This
redefinition of the sources to be considered in judging
fairness reflects the crystallisation, the more systematic organisation
of
collective bargaining,
as
well
as
its enhanced prestige. Agree-
ments and awards, once established, can now be expected
to
be
mgnised
’,
p,ractices not included in them may
be
deemed not
sufllciently
significant
to
be
taken into account.
4.
As
in
1908
the collective terms
to
be observed are those valid
in
the trade and district
in
which the work is carried out
’.
They
must
be
contained in
an
agreement or award
(‘
established
.
.
.
by
machinery
of
negotiation
or
arbitration
’)
to which the parties
on
both
sides are organisations.
So
much does collective bargaining
by employers’ organisations prevail over bargaining by single
employers,
so
much has the ‘shop agreement’ receded into the
background, that an agreement made by the employer himself with
a
union
is incapable of yielding
a
standard of fairness. The revival
of
bargaining by individual employers, necessarily inherent in the
78
It
in
very
eignificant thnt during the Second World War it
wne
unncceeeary
to
enact
a
etatuto provieion eafeguardinp the emplo
ees’
freedom to join
organieatione, an hzbecn done during the Firat World
dnr
:
Munitione
of
War
Act,
1917,
e.
9.
7.
Under the Conditione of. Employment and National Arbitrntion Order,
1940,
Art.
6,
and
under the Restoration of Pre-war Trade Practicee Act,
194s
diacuaeed
below-nncodified trade practicee we protected
b
-volunta
or
compnleorydification. Contraet the Rentoration
of
%re-way
‘?he
Precticee Act,
1919,
which still aaeumea that it
in
possible
to
gwe legat
sanction
to
the reetoration of
sn
uncodified practice.
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