Notes of Cases
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01667.x |
| Date | 01 September 1984 |
| Published date | 01 September 1984 |
NOTES
OF
CASES
TRADE
DISPUTES
AND
THE
LABOUR
INJUNC~ON
AFTER
THE
EMPLOYMENT
Acrs
OF
1980
AND
1982
THE
1980s have already produced a considerable body of cases
testifying to the extreme nature of the restrictions which have been
imposed by the Employment Acts
of
1980 and 1982 on the right to
organise industrial action free from legal restraint.' Some of the
better publicised cases like the
came ckl2bre Stockport Messenger
dispute in late 1983 have made little or no impact on the law reports2
while some important reported decisions received hardly any general
p~blicity.~ The Court of Appeal and House of Lords decisions in
Dimbleby
&
Sons
Ltd.
v.
N.U.J.,4
which were both reported and
well publicised form a significant part of this case law.
The plaintiffs (Dimbleby) ran a group of local weekly newspapers.
A dispute between Dimbleby Printers Ltd., an associated company
which printed the papers, and the National Graphical Association
82 (N.G.A.) over redundancies led to a strike in August 1983. David
Dimbleby, the
alter ego
of both companies, dismissed the striking
printers, who were all N.G.A. members, and in October entered
into a contract for T.B.F. (Printers) Ltd. (T.B.F.) to print the
papers. T.B.F. was one of a group of companies run by Pole-Carew
whose anti-union stance was undisguised. None
of
the T.B.F.
printers belonged to the N.G.A. After the national dispute between
provincial newspapers and their journalists in 1978-79, only
T.
Bailey Forman Ltd., a company which had the same shareholders,
premises and telephone number as T.B.F., refused to reinstate the
N.U.J. members who had been dismissed for going on strike.
The
N.U.J. therefore blacked the company and union members were
instructed not to provide copy for it. This dispute remained unre-
solved, with five N.U.J. members formerly employed by
T.
Bailey
Forman still in receipt of dispute pay.
Employment Act
1980
(the
1980
Act),
ss.16(2)
and
17;
see Lewis and Simpson,
Striking
a Balance? Employment Law afrer the 1980 Act
(1981),
Chaps.
8
and
9.
Employment Act
1982
(the
1982
Act),
ss.14-19;
see Ewing
(1982) 11
I.L.J.
209,.213-226.
Lewis and Simpson
(1982) 11
I.L.J.
227,230-231
and Simpson
(1983)
46
M.L.R.
463.
The other abbreviation
used below is T.U.L.R.A.
for
the Trade Union and
Labour
Relations Acts
1974
and
1976.
An aspect
of
the sequestration proceedings in that dispute was briefly reported:
Messeriger Newspapers Group Ltd.
v.
N.G.A.
(19841
1
All E.R.
293
(C.A.). Other disputes
which involved legal proceedings and received considerable publicity included that between
B.P.C.C. and SOGAT
82,
which also involved the BBC in late
1983-early
1984,
the pay
dispute between Shell and T.G.W.U. in late
1983
and the N.C.B.-N.U.M. dispute over pit
closures in
1984.
Marina Shipping Lid.
v.
Luughton
(19821
Q.B.
1127,
(C.A.)
(Marina)
noted Wedder-
bum
(1982) 45
M.L.R.
317;
Merkur Island Shipping Corporation
v.
Laughton
(19831 2
A.C.
570
(H.L.)
(Merkur Island)
noted Wedderburn
(1983)
46
M.L.R.
632.
'
[1984] 1
W.L.R.
427; (19841 1
All
E.R.
751; (19841
I.R.L.R.
160
(H.L.).
(19841 1
W.L.R.
67; [1984] 1
All E.R.
117; [1984]
I.R.L.R.
67
(C.A.),
[1984]
I.C.R.
386
(C.A. and
H.L.). Page references below
are
to the W.L.R.
577
578
THE MODERN LAW REVIEW
[Vol. 47
Most of the journalists employed by Dimbleby were N.U.J.
members. After they had been told about the T.B.F. contract, an
N.U.J. chapel meeting was held and addressed by the union’s
national officer who reported b?ck to the general secretary. The
union replied to a memorandum informing the journalists that if
they went on strike they would not be re-employed in any circum-
stances with a strike notice. On the day it was due to take effect, the
threat of dismissal was lifted, but the journalists were suspended
when they refused to supply copy to T.B.F. Dimbleby started legal
proceedings a few days later.
In an unfortunately confused judgment, Lawson J. found that
although there were arguments on both sides there was a serious
question to be tried on whether the union’s actions were tortious,
and that although it was acting in furtherance of a trade dispute, it
was deprived
of
the relevant immunities in T.U.L.R.A., 9.13 by
section 17 of the 1980 Act. He therefore granted interlocutory
injunctions to restrain the union from instructing or encouraging the
journalists not to supply copy to
T.B.F.
as Dimbleby required. The
Court of Appeal upheld his decision without any doubts as to the
tortious nature of the union’s acts. This was no longer in issue before
the House of Lords which unsurprisingly confirmed the Court of
Appeal’s restrictive construction of both the amended definition of
a trade dispute and the provisions ostensibly reserving a now almost
totally illusory protection for the legality of some secondary action
in section 17
of
the 1980 Act.
The Labour Injunction
It might appear surprising that in delivering the single opinion of the
House of Lords, Lord Diplock thought it necessary to go beyond
this by revising the correct approach to applications for interlocutory
injunctions in labour disputes spelt out in
N.W.L.5
There, the
majority opinion was that a two-stage procedure was involved: first,
has the plaintiff shown that there
is
a serious question to be tried,
the test imposed by
Cyanamia;
if
so,
secondly, where does the
balance of convenience lie. At this stage, T.U.L.R.A., s.17(2)
requires the likelihood
of
the defendant establishing a “golden
formula” defence to be considered.’ In
N.
W.
L.,
Lord Diplock saw
T.U.L.R.A., s.17(2) as but a prudent reminder to the courts to have
regard to the “practical realities” of labour injunction cases. In
Dimbleby
he cited his exposition of these practical realities in
N.
W.
L.
and stated that where, as in
Dimbleby,
the defendant was
a trade union, a judge should no longer assume that one of these
N.W.L. Lrd.
v.
Woods
[1979]
I.C.R.
867
(H.L.),
see Simpson
(1980) 43
M.L.R.
327,
328-332.
American
Cyanmid
Co.
v.
Erhicon
Lrd.
[1975]
A.C.
396
noted Davies
(1975)
4
I.L.J.
239.
’
That is one of the defences in
T.U.L.R.A.
provided
for
acts done “in contemplation
or
furtherance of a trade dispute.” Lord Scarman’s minority view was that
T.U.L.R.A.
s.17(2)
made consideration
of
the likelihood
of
such a defence succeeding a third stage in
the procedure, separate
from
the balance
of
convenience
[1979]
I.C.R.
867, 890.
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