Some Comments on Current Labour Law
| Date | 01 January 1978 |
| Published date | 01 January 1978 |
| Pages | 5-13 |
| DOI | https://doi.org/10.1108/eb055348 |
| Author | Terry Sullivan |
| Subject Matter | HR & organizational behaviour |
Some Comments on Current
Labour Law
Terry Sullivan
Lecturer in Labour Economics and
Industrial
Relations,
Department
of Adult
Education,
University
of Nottingham
Introduction
Since 1970 the British industrial relations system has been
injected with an unprecedented volume of law relating to
employment. We have had the Equal Pay Act, 1970 and
Sex Discrimination Act, 1975 which have spawned an Equal
Opportunities Commission; the Industrial Relations Act,
1971 was passed and subsequently repealed by the Trade
Union and Labour Relations Act, 1974 (TULRA); the
provisions of this latter act have been further buttressed by
the Employment Protection Act, 1975 (EPA); dealing with
a very much neglected area of industrial relations we have
had the Health and Safety at Work Act, 1974; finally the
Bullock Commission which was set up to inquire into the
way worker directors could increase employee participation
in industrial affairs reported to the Minister in February,
1977.
The government have promised legislation on
'industrial democracy' sometime in 1977 or 1978.
Both practitioners and academics would agree on the need
for a framework or system of categorisation that puts this
legislation into perspective and lays some common pattern
across a mass of complex legal clauses. To provide such a
framework is beyond the scope of this paper. Here we will
try to outline the main elements in some new labour laws
from an industrial relations viewpoint by evaluating some
aspects of the Trade Union and Labour Relations Act, 1974
(TULRA) and the Employment Protection Act, 1975 (EPA).
For this purpose some broad categories are outlined, based
on the work of Kahn-Freund,[l] who distinguished bet-
ween auxiliary law and regulative law. Auxiliary law is law
that provides support for the industrial relations system and
is concerned with collectives. It allows procedures and
institutions to exist and work. It is concerned with provid-
ing a framework within which collective bargaining can
both begin and continue to operate." Examples of this type
of legislation are the Trade Union Act, 1871, the Conspir-
acy and Protection of Property Act, 1875, and the Trade
'Disputes Act, 1906. The first two freed trade unions from
criminal conspiracy charges and the latter from civil actions
and so allowed them to operate as collective bodies and
exercise 'restraint of trade' without fear of legal action. [2]
Regulative law gives rights to individual workers within
the employment relationship. These rules apply to areas
which collective bargaining either does not or has not been
able to cover. Examples of this type of legislation are
Contracts of Employment Act, 1963, and Redundancy
Payments Acts, 1965.
A third category of law which is discussed at some length
by Kahn-Freund has by some other authors[3] been called
restrictive law. This is law which lays down what is and is
not allowed when conducting collective bargaining or any
trade disputes that may be associated with such bargaining.
Examples of laws of this kind have come mainly from the
now defunct Industrial Relations Act, 1971, including such
issues as unfair industrial practices and compulsory ballots
of members on whether or not to strike. Perhaps the best
example from current legislation is on picketing. It is legal
for a picket to talk to a pedestrian but he cannot stop a
man who is at the wheel of a motor vehicle. The Secretary
for Employment refused to make any changes in this ruling
during the passage of TULRA, 1974. As events in the recent
Grunwick case have shown, what is restrictive about picket-
ing is very much at the discretion of the police. It now seems
likely that the law on picketing will be changed but we do
not know into which of our categories the new rules will
fall.
Of course the common law prevents the use of physical
intimidation in any negotiations or disputes. It is worth
noting here and now that restrictive law is markedly absent
from both TULRA and ERA.
Finally, it seems possible to distinguish a fourth category of
labour law that is being considered for introduction into the
British system of industrial relations which we will call
integrative or participative law. This is law which attempts
to integrate workers and/or trade unions more closely into
the commercial, social and political operation of the enter-
prise. The only British example we have of this type of
participation in a legal and institutional form is the pro-
vision in the Statutes relating to nationalised industries that
they should have on the Board a trade union representative
who has no direct connections with, or responsibilities to
the workers in that industry. The various British experi-
ments in worker directors, co-operatives and co-ownership
are private, voluntary arrangements.
So we are able to identify four types of law relating to
industrial relations. They are auxiliary, regulative, restric-
tive and participative law. The first thing to note about
these categories is that they can be in conflict with each
other. For example, to underpin collective bargaining is one
thing, but to extend to individuals a whole set of employ-
ment rights will detract from the value of collective organisa-
tion. Collective bargaining can hardly exist if unions are
weak in numbers, resources and legal rights. Participative
law can detract from collective bargaining and auxiliary law.
For example, evidence from Western Europe[4] indicates
that some employees use the machinery of participation as
an alternative to trade unionism and collective bargaining.
In turn participative law that gave rights only to indepen-
dent trade unionists could diminish the rights of workers
who are not in trade unions, vis-a-vis those who are. On the
other hand, the view of the Majority Report of the Bullock
Committee
[ 5 ]
on this matter can be construed as an attempt
to produce conflation between participative and
auxiliary law. The best-known conflict between auxiliary
law and regulative law is when collective rights and indivi-
dual freedom clash in the matter of the closed shop.
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