Statutes

DOIhttp://doi.org/10.1111/j.1468-2230.1974.tb02401.x
Publication Date01 Sep 1974
STATUTBS
THE
TRADE UNION
AND
LABOUR RELATIONB ACT
1974
Tm
Industrial Relations Act
1971
is hereby repealed,” pro-
claims section
1
(1)
of the Trade Union and Labour Relations
Act
1974.
And
so
it
is. But there follow thirty more sections and
five Schedules to prove that this simple proposition, which aims
to revive a voluntary,
66
non-interventionist
framework of law
for British’ collective industrial relations, required a statute of
some complexity to achieve the purpose. Moreover, the vagaries
of minority government and some very poorly drafted amend-
ments which were introduced by the House
of
Lords late in the
legislative process and retained by votes in the Commons defeating
the Government on the very day before the Royal Assent, have
left some parts of the
1974
Act in a state of bizarre obscurity.
Indeed, almost the only amendment which changed the original
Bill without introducing oddity
or
uncertainty was that which,
probably wisely, retains the
‘(
Code of Practice,” in the light
of
which the Act must be interpreted by industrial tribuna1s.l
For this brief analysis of the Act
it
is convenient to consider
it under five headings: (i) The abolition of the National Indus-
trial Relations Court and consequentisal provisions. (ii) The re-
enactment with amendments of the provisions relating to unfair
dismissals. (iii) The status, administration and membership of
trade unions and employers’ associations. (iv) Collective
bargaining; and
(v)
The law relating to industrial conflict.
(i)
Abolition
of
the
N.I.R.C.:
This part of the
1974
Act differs
from all the rest in that the court is abolished and all the sections
of
the
1971
Act on which its jurisdiction rested are repealed,
from the moment of the Royal Assent.a The remainder of the
1974
Act comes into force on such day
or
days as the Secretary
of State appoints.8 The instant abolition
of
the N.I.R.C. created
many problems in connection with pending proceedings. Where
such proceedings have been commenced in that court on
or
after
1
Sched.
1,
Part
1,
paras.
13,
in effect re-enacting
8s.
2,
3
and
4
Industrial
Relations Act
1971.
This
retention of a
Code
(which can be revised after
consultation with the
C.B.I.
and
T.U.C.:
para.
2)
is
of
course particularly
useful in relation to unfojr dismissal, which is why the
Code
is retained
in
para.
3
only
for use in the industrial tribunals.
2
s.
1
(3).
(The relevant sections
of
the
1971
Act are
8s.
7
(2)
(3), 11
to
18, 31,
32,
37
to
55, 76, 77,
99,
101
to
105, 111, 112, 114, 115, lZ9, 136, 138
to
145
and
160.)
The Royal Assent was given
on
July
31, 1974.
3
8.
31
(2).
At the time
of
writing, it
is
understood that the bulk
of
the Act will
be made operative by a commencement Order,
8.1.
1385,
on
September
16,
1974.
525
526
THE
MODERN LAW REVIEW
VOL.
37
April
30,
1974,
they
"
abate
";
any decision, judgment, order
or
award made in them becomes void in
so
far as
it
is not already
enforced; and any right of appeal against such a decision is
extinguished,* But proceedings commenced
before
April
30,
1974,
are transferred to the High Court.6 Parallel provisions are made
concerning appeals from industrial tribunals to the N.I.R.C., except
that appeals under the Contracts of Employment Act
1972,
or
under the Redundancy Payments Act
1965,
or
concerning unfair
dismissal, are transferred to the High Court whenever the
pro-
ceedings were commenced.6
Where pending proceedings are transferred from N.I.R.C. to
the High Court, two special features are notable. First, the rules
of the N.I.R.C.
as
to costs (under which costs were not awarded
to the winning party unless the proceedings were unnecessary,
improper
or
vexatious,
or
unless there had been unreasonable
dehy or unreasonable conduct) continue to have effect, with
necessary modifications, in regard to those proceedings in the High
Court.7 Secondly,
if
an award of compensation is made by the
High Court in such proceedings against
a
trade union,8 the
union will continue to enjoy the protection accorded to its
''
pro-
tected funds
"
which are not available to finance industrial action,
in accordance with sections
153
(2)
and
154
(4)
of the
1971
Act,
even though those sections may have been re~ealed.~ A union
is given statutory power to alter its rules concerning such
"
protected funds
"
made after December
1,
1970,
even
if
those
rules have been declared to be unalterable, provided that
it
does
so
within four years from the passing of the Act.l0 The long
period of four years is clearly enacted
so
as to allow time for any
pending proceedings to be brought
to
a
conclusion before the
unions
''
unscramble
"
their protected funds
if
they
so
wish.
Apart from the appeals from industrial tribunals to the N.I.R.C.
discussed above,6 the Act has to make provision
for
proceedings
before industrial tribunals themselves. Complaints in respect of
unfair dismissal continue. But complaints in respect of any other
matter under the
1971
Act presented on
or
after April
30,
1974,
abate; rights of appeal
in
such proceedings are extinguished; and
any appeal from a decision in such proceedings abates.l' The
8.
21
(2)
(b)
(0).
Or, in Scotland, the
Court
of
Session:
8.
21 (2)
(a).
Decisions
of
the
N.I.R.C.
in
proceedings commenced before April
30,
may be enforced
as
if they
are
judgments
of
the High
Court:
8.
23
(1).
The Bill was published
on
April
30,
1974.
6
8.
21
f4).
7
8
9
10
scd&,'i, para.
4.
The most important. outstanding case where this could happen is
General
Aoiation
Services
(U.K.)
Ltd.
v.
T.G.W.U.,
reported
as
to the issue
of
liability
[1974]
I.C.R.
35
(wbich decision
is
itself under appeal).
8.
23
(2).
It must be stressed that this protection only applies
to
proceedings
under the Industrial Relations Act
1971
which &re transferred
to
the High
Court.
8.
20
(1)
and
(2).
Such
rules
were frequently made unalterable
so a8
to
11
8.
22.
satisfy the word
"
precluded
"
in
8s.
163
(2)
and
164
(4).

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