Reports Of Committees
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb02285.x |
| Date | 01 January 1969 |
| Published date | 01 January 1969 |
REPOnTS
OF
COMMITTEES
ROYAL
COMMISSION
ON
TRADE UNIONS
AND
EMPLOYERS’
ASSOCIATIONS
To
the foreign student of British industrial relations the report of
the Donovan Commission offers exceedingly interesting reading.
In
1,112
paragraphs
it
reviews the whole field of labour relations,
points out the weaknesses, and carefully analyses all the main
issues. The Donovan Report is impressive, too, because of the
way in which.
it
is written.
It
is free from the sins of long-winded-
ness, garrulity and repetition which all too frequently beset reports
of law revision committees in the present writer’s own country.
If
you ask a British expert what he considers to be the most
characteristic feature of labour relations in his own country, the
answer is invariably that in Britain the collective agreement is not
a contract binding at law and that on the whole legal sanctions
play a subordinate role. The parties do not want to be subject to
legal obligations. The majority view of the Donovan Commission
is that this state of affairs should not be changed. Thus they con-
sider no additional sanctions should apply in the case
of
“
un-
authorised
”
strikes. When the reader of the Report finds what
the contemplated sanctions were-they included the
“
automatic
”
penalty of loss of title to benefits-he is likely to agree with the
majority view. The problem of attaching sanctions to a peace
obligation is
a
very intricate one. Awareness of the existence
of
the sanction should make those concerned reluctant to resort to
unlawful actions. But if a strike should nevertheless occur, then
once it is over everyone should be quick to forget all about
it.
For
these reasons such a sanction as loss of title to benefit ,is both
ineffective and destructive. A Swedish lawyer might submit that
an action for damages against the union would offer a better
remedy. This action, which according to Swedish law lies if the
union authorises an unlawful action
or
does not put enough energy
into its efforts to bring men back to work, makes the union officers
anxious to prevent unlawful actions. By mitigating the damages
the court could avoid causing permanent harm to the union. The
present writer, however, is well aware that
a
solution along these
lines is alien to British traditions.
There are other points where a suggestion that legal sanctions
should apply would seem more realistic in a British context.
I
must confess that
it
came as a shock to read that
in
Britain, where
unionism has a long history, there still exist employers who refuse
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THE
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LAW REVIEW
VOL.
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to recognise .trade unions as parties to collective agreements. The
Commi4sion proposes that certain clauses in contracts of employ-
ment forbidding union membership shall be void and without effect
and that in some situations the union shall have access to unilateral
arbitration. Are these remedies sufficient?
If
not, why did not
the Commission suggest the establishment of machinery like that
which exists
in
the U.S.A. .for the enforcement of the fundamental
right of self-organisation?
It
is possible that
it
was a striving for
impartiality that caused the members to take the same lenient
view on this point as they have adopted regarding sanctions
against unlawful strikes.
If
that was indeed their motive,
it
does
not seem to me to be based on convincing grounds. Generally
speaking,
it
is not the same people who are involved. The great
majority of the employers who suffer from unlawful strikes recog-
nise the unions fully, and in critical situations they may regard
shop stewards and union officers as allies rather than as antagonists.
Besides, for the employer
to
pay regard to the union is the
fmt
step towards more orderly relations.
The Donovan Report has a main thesis from the perspective
of which present evils are discussed and remedies suggested. The
root of the trouble is held to be the existence side by side of two
separate systems, a formal one represented by industry-wide agree-
ments and an informal one consisting mainly of tacit arrangements
and understandings at the shop level. The two systems are in con-
Aict: the informal one undermines the regulative effect
of
the
formal one. The present writer submits that this unfortunate
dualism is closely related to a distinctive feature of British labour
relations to which writers on comparative law have paid too little
regard. In Britain most arrangements have the character of
ad
hoc
settlements brought about within the framework of certain estab-
lished institutions.
Traditionally the British collective agreement is concluded for
an indefinite period, although agreements for one
or
two years
or
some other fixed term sometimes occur. Unlike an international
peace treaty, a collective agreement is not intended as a definite
settlement for the foreseeable future; rather
it
is a question of the
parties having temporarily suspended hostilities. The agreement
can be reopened at any time upon short notice. In these circum-
stances British arbitration has other functions than has arbitration
in American
or
Scandinavian law. The Industrial Court,
or
the
arbitral board concerned, renders an award which is a substitute
for a settlement through negotiations over the terms of a new col-
lective agreement. The American arbitrator has authority to deal
only with disputes arising under a collective agreement. Each
claim has to be based upon duties which are incumbent on the
other party as laid down in the agreement. Let
us
assume that
it
had been permissible to reopen the agreement and that the plaintiff
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