THE LEGAL ENFORCEABILITY OF COLLECTIVE AGREEMENTS

Date01 November 1970
DOIhttp://doi.org/10.1111/j.1467-8543.1970.tb00580.x
Published date01 November 1970
AuthorRoy Lewis
THE LEGAL ENFORCEABILITY
OF
COLLECTIVE AGREEMENTS
ROY
LEWIS*
INTRODUCTION
IN
February and March of 1969 there was a strike by manual employees
at the Ford Motor Company (U.K.). During the dispute Ford brought a
legal action against the
A.E.F.
and T.G.W.U. for breach of the collec-
tively agreed negotiating procedure which the company alleged was
legally enforceab1e.l These events occurred after the publication of the
Donovan Report,a
Fair Deal at
Work3
and
In
Place
of
St~iie,~
at
a
time of
public debate about the reform of labour relations and law, which included
the issue of whether
or
not collective agreements should be legally en-
forceable. That debate continues. The purpose of this article is to discuss
the legal enforceability question and the implications
for
it
of
the Ford
dispute.
After
Ford
v.
A.E.F.
it is reasonably clear that most collective agree-
ments are not legally enforceable
as
between the collective parties.s
The legal influence of collective bargaining tends to operate instead at
the level of the individual contract of employment between each em-
ployee and his employer, where the substantive and sometimes the
procedural collectively agreed terms may be incorporated.6
The three policy documents took different views
as
to whether the
law should be changed by making agreements legally enforceable at the
collective level. In essence,
Fair Deal at
Work
proposed to make agree-
ments legally enforceable. The Donovan Report recommended that legal
enforceability might be considered after the reform of collective bargain-
ing.
In
Pluce
of
Strzye
was straightforwardly opposed
to
legal enforceability.
These policies will now be discussed in more detail.
FAIR DEAL
AT
WORK
ON
LEGAL ENFORCEABILITY
The Conservative Party document proposed to make collective agree-
ments legally enforceable (pp.
32-35).
The enforcement
of
both procedural
*
Lecturer
in
Industrial Relations, London School
of
Economics and Political Science
a
Royal
Commission
on
Tradc
Unions
and
Employers’
Associations
1965-8:
Report, Cmnd 3623,
8
Conservative Political Centre, London, 1968
6
Incorporation
is
the usual device. Whether
a
union
can
act
as
a
legal
agent
in order to bind
members in their individual employment contracts
is
a difficult question:
see
K.
W.
Wedderburn,
313
Ford
Motor
Co.
Ltd.
v.
A.E.F.
and
Othcrs
[1969]
2
Q.B.
303
H.M.S.O.,
London
1968
Cmnd 3888,
H.M.S.O.,
London, 1969
The qualifications to
thia
statement are
discussed
below.
314
BRITISH JOURNAL
OF
INDUSTRIAL RELATIONS
and substantive terms was envisaged. It has been suggested? that the
new Conservative Government might be contemplating the enforce-
ability of
existing
as well as
future
agreements, though
Fair Deal at
Work
did not draw this distinction. The proposal was for optional enforce-
ability:
‘a
collective agreement should be enforceable except in
so
far
as the parties specifically agreed that the whole, or parts of it, should not
be legally binding’ (p.
32).
Fair Deal at Work
assigned two roles to legal enforceability
:
a) to assist in the reform of collective bargaining, and
b)
to restrict unconstitutional strike action.
Legal Enforceability and the
Reform
of
Collective Bargaining
It was Government orthodoxy that voluntary collective bargaining
was the best method of achieving industrial democracy and peace.
Hence the provisions for State-sponsored conciliation, arbitration and
inquiry. But 0\7er the last decade there has been growing concern over
industrial efficiency and the rising incidence of unofficial and uncon-
stitutional strikes. To deal with these two problems the spread of the rela-
tively detailed, formal and often local collective agreement is advocated.
The Donovan Report,
Fair Deal at Work
and
In Place
of
Striie
were
unanimous on the desirability of comprehensive collective agreements.
Proposed reforms in unions and employers’ associations were linked with
that type of agreement.
A
new role of the law, therefore, is to encourage
comprehensive agreements.8 According to
Fair Deal at
Work,
legal en-
forceability would be likely to encourage the reform of substantive and
procedural terms through comprehensive bargains.
Fair Deal at Work
summarized the purposes of making the collective
parties liable for breach of agreement as follows
:
First, it would provide a strong incentive
(to
managements and unions)
to
give much more careful thought than
at
present
to
the detailed contents
of
collective
agreements, and
to
explain them
to
the people on whose
behalf they had been negotiated.
Second, it would be
a
strong incentive, particularly
to
unions,
to
maintain much closer
contact
with their members,
so
that they could step
in quickly
at
the
first
sign
of
trouble.
Third, it would encourage managements and unions
to
reach firm
agreements on the precise
status
and functions
of
shop stewards, who are
so
often
the
key
figures in promoting peace
or
unrest (p.
33).
The Worker and the Law,
Penguin, London, 1965, pp. 1724;
cf.
J.
B.
Cronin and R. P. Grime,
Labour
Law,
Butterworths, London, 1970, pp. 33541
E.
Wigham, ‘Tough Path to “Fair Deal”,’
The Times,
7
July 1970
Statutory incomes policy appears
to
have had that effect:
J.
Gennard and
B.
C.
Roberts,
‘Trends in Plant and Company Bargaining’,
Scottish Journal
of
Political Economy,
June 1970.
The Contracts
of
Employment Act 1963, the Redundancy Payments Act 1965, the Equal Pay
Act 1970, the proposed unfair dismissals legislation and, more obviously, the registration
of
col-
lective agreements and the work
of
the Commission
on
Industrial Relations are associated
with the encouragement
of
more comprehensive agreements.

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