A NOT SO GOLDEN FORMULA: IN CONTEMPLATION OR FURTHERANCE OF A TRADE DISPUTE AFTER 1982
| Author | Bob Simpson |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02528.x |
| Published date | 01 July 1983 |
| Date | 01 July 1983 |
A
NOT
SO
GOLDEN FORMULA:
IN CONTEMPLATION OR FURTHERANCE
OF
A TRADE DISPUTE AFTER
1982
I.
THE
GOLDEN
FORMULA
THEORY
THE
description of the phrase
“
in contemplation
or
furtherance of a
trade dispute
”
as the
“
golden formula
”
encapsulates in two words a
theory of the role of the law in industrial conflict in Britain, in this
article called the
“
golden formula iheory.” This theory maintains that
the policy underlying first section
3
of the Conspiracy and Protection of
Property Act
1875
and the Trade Disputes Act
1906
(the
1906
Act), and
more recently the Trade Union and Labour Relations Acts
1974
and
1976
(T.U.L.R.A.) and Criminal Law Act
1977,
s.
1,
is to define the
boundaries within which industrial conflict is legitimate in the eyes
of
the law by means of the phrase
“
in contemplation
or
furtherance of a
trade dispute.” Within these boundaries those who organise
or
take
part in strikes
or
other forms of industrial action were to be
“
immune
”
from both criminal liability for conspiracy and civil liability in the
economic torts. The effect of providing such
“
immunities
”
was to
create an area within which basically no legal restraint could be imposed
on the organisers of industrial action. Although it did not affect the
liability of those who take part in the action for breach of their contracts
of employment, by this means the law recognised a
“
right to strike
”
or
more accurately a right to organise strikes and other industrial action.
The accuracy of this characterisation of the law depends in the first
place on three interrelated factors. First, the range of potential civil
liabilities that may be attracted by the activities involved in organising
industrial action must,
as
far
as
possible, be a known quantity. Secondly,
the legislative immunities from these liabilities for acts done in contem-
plation or furtherance of a trade dispute must be comprehensive. This
requires not only that the immunities extend to the complete range
of
liabilities; they must also be available at all stages
of
the legal process.
In practice this means that they must restrict the availability
of
labour
injunctions in
exparte
and interlocutory proceedings as well as applying
in the full trial
of
an action. Thirdly, the definition
of
a trade dispute
must be wide enough to cover all legitimate
“
trade
”
disputes, that is,
according to the theory, basically all labour disputes over industrial
matters. If organising industrial action in these disputes could give rise
to liability at common law, the organisers will require the protection of
the immunities. The link between the immunities and the acts of the
organisers provided by the words
“
in contemplation or furtherance
”
Wedderburn’s celebrated phrase, first used in
The
Worker
and the
Law
(1965),
p.
222.
It is equally important that the range
of
potential criminal liabilities
is
a known
quantity. However, since
1875,
the criminal law,has been largely excluded from the law of
industrial conflict except in respect of the conduct of pickets and workplace occupations.
The res!,of this article is concerned with
“
in contemplation
or
furtherance of a trade
dispute only as it concerns civil liabilities.
463
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