REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb01154.x |
| Published date | 01 July 1967 |
| Date | 01 July 1967 |
REVIEWS
MODERN
TRADE UNION LAW.
By
CYRIL
GRUNFELD.
[London:
Sweet
&
Maxwell.
1966.
xii
and
517
pp.
(including index).
El
5s.
net.]
IT
may
as
first sight seem odd that
a
major work in this field should be
published
so
soon before publication of the Report of the Royal Commission on
Trade Unions, but even in the unlikely event of unanimity among the Com-
missioners, this book is not expected to be overtaken by rapid large-scale
statutory changes. The nettle of trade-union law is not an easy one to grasp
for a government of any political colour and the complex of problems
explained
so
carefully by Professor Grunfeld will be with
us
for some while
yet.
After many years
of
non-intervention in the affairs of trade unions, the
courts in the last ten years
or
so
have increasingly concerned themselves with
trade union matters. Some decisions, notably
Rookes
v.
Barnard,
have caused
as
much antipathy toward law and lawyers as the
Taf Vale
case
of
1900-the trade union movement seems to feel that the judges of today have
little more understanding
or
sympathy with the purposes of trade unionism
than their predecessors. Parliament has performed the purely negative
function of trying to reverse these judgments in the Trade Disputes Acts
of
1906
and
1966
but recent cases like
Stratford
v.
Lindley
and
Emerald
Con-
struction
Co.
v.
Lowthinn
show that these Acts contain large loopholes.
Neither the courts nor Parliament have ever attempted to distinguish between
official strikes, which one might think ought to receive broad protection, and
unofficial strikes, which ought not. All would agree that the law is in
a
state of great confusion. Discussion of the law relating
to
strikes in Part
6
of this book is provocative and controversial but probably the most thorough
yet published.
In other decisions, judicial intervention has been widely regarded a8
beneficial. The judges in
Huntley
v.
Thornton
and
Byrne
v.
FOU.ke.9
(the
E.T.U. case) recognised the realities of trade union powers and provided
effective remedies where such powers had been abused. In
1966,
the House of
Lords in
Bonsor
v.
Musicians’ Union
established for the first time that
a
wrongfully ivpelled member could obtain damages from his union but even
in this case the majority of their Lordships clung to the unreality that
although a registered union can sue and be sued in its own name, it is not
an “entity recognised by law.” Professor Grunfeld reminds
us
(p.
44)
that
important unions like N.A.L.G.O.. the N.U.T. and the Union of Post Office
Workers are unregistered and that there are serious procedural difficulties
in the way
of
actions being brought by
or
against them. He says that
a
representative action in contract may not be possible against such a union
because a change in membership between the time of the breach alleged and
the time of
the
action would mean that the new members
would
not have
the “same interest” as the other members within the meaning of Order 16,
r.
12.
It
may be no advantage to bring an action only against those who
were members at the time
of
the breach of contract as union funds would
then seem out of reach of
a
judgment. In the recent case
of
Lawlor
v.
Union
of
Post
Odice Workers,
the court apparently ignored the procedural
difficulties but tho uncertainty is hardly desirable-it may mean, for example,
that a paid N.A.L.G.O. official could not claim damages for wrongful dismissal
from
his
post. Should not registration be compulsory?
465
VOL.
80
16
466
THE
MODERN
LAW
REVIEW
VOL.
80
One of the existing statutory rules that was meant to keep the courts out
of trade
union
affairs is section 4 of
the
Trade Union Act 1871, whereby
certain intra-union rules, such
as
rules for the payment of subscriptions
or
fines
or
the provision of benefits, cannot be directly enforced by court action.
The section has been narrowly interpreted by the courts but Professor
Grunfeld goes
so
far
as
to suggest that a court may give
a
declaratory judg-
ment that, say,
a
member
is
entitled to certain benefits but would be
die-
inclined to give it if the union indicated it would not abide by the court
ruling (pp. 87-92).
Only
Arst-instance authority
is
quoted for this view
and bearing in mind that the declaratory judgment had fallen
into
disuse
in
1871,
so
that Parliament
can
hardly have considered
it,
and also the purpose
of
section
4,
it does seem
a
rather blatant evasion of
the
section
if
a
dispute
about entitlement
to
benefits can be litigated by the device of
an
action for
a
declaration.
The modern expulsion cases have thrown up an important query
M
to
whether
a
union rule can explicitly
or
implicitly oust the rules
of
natural
justice. Professor Wedderburn
in
The
Worker
and
the
Law
took the view
that if the rule book provides
for
automatic ineligibility and no hearing where
a
member commits
a
certain breach of the rule book, the
rules
of natural
justice would be effectively ousted. In
Ruraell
v.
Duke of Norfolk
(not
referred to by Professor Grunfeld) challenge
to
the withdrawal
of
a
licence
by the Jockey Club
on
the grounds of an alleged defect
in
their
hearing failed
because the Club
rules
did not require
a
hearing. Professor Grunfeld,
however, says (p. 194)
that
“it
seems
likely”
that
a
rule purporting
to
oust
the rules of natural juatice would be held invalid
88
against public policy.
Perhaps it is desirable for this uncertainty to be cleared up by
a
requirement
that rule books contain provisions embodying
the
right to
a
fair hearing
before any disciplinary penalty
is
imposed.
It
is not clear whether the author has considered the consequences of
maintaining
as
“the sounder view” that where the rules of natural justice
do apply, failure to provide an opportunity to be heard renders the decision
ooidable
only (p. 197).
It
seems inconsistent with the View (p. 198) that
a
declaratory judgment can be obtained in such
a
case, because it follows from
the Court of Appeal decision in
Punton
v.
Midater of Penaionr
and
Nntid
Znaurnnce
(No.
2)
that
a
declaratory judgment cannot be given in respect of
a
voidable derision since that decision would still be extant. If the voidable
decision were that
of
a statutory tribunal it could, of course, be quashed by
certiorari but this remedy does not lie to
a
non-statutory tribunal such
as
the disciplinary committee of
a
trade
union.
Only
if the decision of such
a
body is treated
as
void
can
a
declaratory judgment of
its
invalidity
be
obtained.
This
is
a book which
will
help establish industrial law
or
labour law
as
one worthy of academic study. The subject’s interest and its difficulty both
stem from tensions that
exist
within society and between different social
groups and the law.
It
cannot be divorced
from
social problems and what
marks this book out
as
outstanding is that the author exhibits throughout a
knowledge of social and industrial matters far beyond the bare
bones
of the
law.
Goma
Bonnrlr.
TEE
MENTAL
ELEMENT
IN
Cam.
By
GLANVILLE
L.
Wm,u~e.
[Jerusalem
:
Magnes
Press,
The Hebrew University.
1965.
121
pp.
21s.
net.]
THIS
book contains a refurbished version
of
the Lionel &hen lectures for
as
long
ago as 1957-58.
It
is
a
concise and intensely stimulating re-exami-
nation of,
in
particular, the concepts
of
intention and negligence. There
are
To continue reading
Request your trial