NOTES OF CASES
| Published date | 01 September 1967 |
| Author | O. Kahn‐Freund |
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb01161.x |
| Date | 01 September 1967 |
NOTES
OF
CASES
BREAKAWAY
UNIONS,
INDUSTRIAL
PEACE,
AND
THE
LAW
THE
decision of Widgery
J.
in
Morgan
v.
Fry
is, in some respects,
of
no
more than historical importance.
If
the facts occurred now
they would be covered by the Trade Disputes Act
1965,
which is
not, however, retrospective.2 Consequently the case was decided
under the Trade Disputes Act
1906
as interpreted by the House of
Lords
in
Rookes
v.
Barnard.8
The significance of
Morgan
v.
Fry
can be very briefly summar-
ised:
it
is now accepted doctrine that normally a notice to strike
must be construed not as a notice to terminate the contract but as
a notice to break
it.'
The intention of those who give strike notice
is, according to the present interpretation, to suspend the perform-
ance of their duties under their contracts of employment for the
duration of the strike and to resume the contract after the termina-
tion of the strike. This
is
important in all those situations in which
the seniority of the employee is legally relevant as
it
is,
e.g.,
under
the Contracts of Employment Act
1963,
with regard to pensions
rights, and also under some collective agreements providing for
holidays with pay. The corollary of this interpretation is that most
strikes must of necessity involve a series of breaches
of
contract.
Inasmuch as a breach of contract is an unlawful act, this re-
interpretation of the intention of the strikers means that only rarely
can there be such a thing in English law as a lawful strike.
It
is
an open question how far this applies to lockouts.
The facts in
Morgan
v.
Fry
can be stated briefly: most of the
lockmen employed by the Port of London Authority are members
of the Transport and General Workers Union, but there was not,
at the time when the facts
of
the case occurred, anything in the
nature of a formal closed-shop agreement between the union and
the Authority,
nor
was there anything in the nature of an express
''
no-strike
"
clause. The dispute arose from the formation of a
breakaway union at Tilbury and at the Blackwall Entrance, where
the workers concerned
in
this case were employed. This breakaway
union, which called itself the
Union
of Port Workers, was a small
1
[1967]
3
W.L.R.
65.
2
The Act does not apply to acts done before August 5, 1965, provided proceeding8
in
resoect thereof have been instituted before February
5,
1966.
In
the
preseni
case
all the relevant facts occurred
in
or before-1963, and the writ
was issued
in
September 1964.
8
19641 A.C. 1129.
4L
ee
per
Donovan
L.J.
in
Rookes
V.
Barnard
[1963] 1
Q.B.
623 (C.A.) at
DD.
682.
683:
ner
Lord Devlin in
Rookes
v.
Barnard
r19641 A.C. 1129 at
~~ ~
i:l&41 pelLird Denning
M.R.
in
Stratford
v.
Lindlei
[19d5] A.C. 269 at
p.
285; [1964]
2
W.L.R. 1002 at p. 1046.
564
SEPT.
1967
NOTES
OF
CASES
565
group of workmen who objected to the policy and practice of the
T.
&
G.W.U.
as being not sufficiently militant. The
T.
&
G.W.U.
and in particular the first defendant in the case (who was the
regional secretary) and the second defendant (who was the district
organiser) felt that the existence of this breakaway union was
intolerable and in particular that
it
constituted a danger to the
industrial peace which had
so
far prevailed over
a
long period
between the Port of London Authority and the lockmen.
It
was as a result of this policy of the union that the Authority
was, after a long period of negotiations, notified of the unwillingness
of the members of the union to work alongside the small group of
men who had left the T.
&
G.W.U.
and formed the militant
breakaway union. The plaintiff (who ,was not, in fact, the leading
man in the breakaway union, but refused to leave it) was dismissed
(with notice) by the Authority as a result of the notification by the
T.
&
G.W.U.
officials that there would be a strike of the lockmen
unless this was done.
The plaintiff sued the regional secretary, the district organiser,
the branch chairman, the branch secretary and two other union
officials for damages by reason
of
conspiracy to intimidate the
Authority. He succeeded against the first two defendants, whereas
the action was dismissed against the other defendants on the facts.
Since
it
is accepted that a normal strike notice
is
a notice to break
the contracts, and since
it
was laid down in
Rookes
v.
Barnard
that
a threat of a breach of contract is an actionable intimidation,
it
follows that a normal announcement by union officials that in certain
circumstances the union members will go on strike constitutes in
relation to third parties an actionable tort. Since it is an actionable
tort if done by an individual, section
1
of
the Act of
1906
is no
defence to an action for conspiracy. The only difference between
this case and
Rookes
v.
Barnard
was that the decision of the House
of Lords in
Rookes
v.
Barnard
rested on the threat to break the
undertaking not to strike which-so it was held-was implied in
the contracts of employment, whereas the present case rests on the
wider proposition that-whether there is a no-strike clause
or
not-
the mere announcement that a strike-any strike-may be the
result of a certain conduct of the employer
(e.g.,
a
refusal to
discharge another employee) is
ips0
facto
an actionable intimidation.
The judge examined the legal situation both from the point of
view of the unlawfulness of the purpose and from that of the
unlawfulness of the means of those conspiring. He had no difficulty
in holding that, on the principles of
Crofter Harris Tweed
v.
Veit~h,~
the purpose of the conspiracy was in this case lawful, but
in view of
Rookes
v.
Barnard
he had to hold that the means
employed were unlawful and that consequently the action succeeded.
Any doubts-if such still exist-that the Trade Disputes Act
5
[1942]
A.C.
435.
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