THE RIGHT TO THREATEN STRIKES
| Published date | 01 September 1961 |
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb02188.x |
| Date | 01 September 1961 |
| Author | K. W. Wedderburn |
THE
RIGHT TO THREATEN STRIKES
"
THE right of workmen to strike," said Lord Wright in 1942,
"
is
an essential element in the principle of collective bargaining."
The recent decision of Sachs
J.
in
Rookes
v.
Barnard
is of critical
importance to the law relating to strikes. Indeed, commentators
have suggested that, by
it,
"
the whole pattern of industrial re1.a-
tions could conceivably be subtly changed." This judgment deals
with the law of tort regulating strikes, and the defences afforded by
section
3
of the Trade Disputes Act, 1906-the statute by which the
structure of
"
legislation designed to safeguard the individual's
freedom of organisation and freedom of strike was completed.'!'
It
was passed at a time when many felt that
"
the tender mercies
of
the common law were cruel towards trade unions
''
and when
"
the
attitude of the courts reflected that of the middle class." Any new
construction of that Act is bound to touch sensitive nerves; arid
might even give rise to a demand
for
rectifying legislation after the
fashion of
Bunn's
case
7;
Taff
Vale
a[
and the
Osborne
The core of the tort found by Sachs
J.
was the
threat
to talke
strike action in breach of contract. Prospective breaches of contract
became a tort actionable by an injured third party.
It
will 'be
submitted here that this finding is, with respect, questionable in
terms of the existing authorities; and that, anyway, the Tra'de
Disputes Act, 1906, provides, in section
3,
a good defence
for
any
such tort, where a trade dispute is being pursued.1° In the course
of these submissions some fundamental questions of tort and
contract necessarily arise.
1
2
s
4
5
0
7
8
9
10
In
Crofter Hand Woven
Harris
Tweed
Co.
v.
Veitch
[1942]
A.C.
435
at p.
463.
[1961] 2
All
E.R.
825; [196ll
3
W.L.R.
438.
The Economist,
May
27, 1961,
p.
689.
Kahn-Freund, in his illuminating lecture
on
"
Labour Law
"
in
Law
and
Opinion in England
in
the 20th Century,
ed. Ginsberg,
(1959)
pp.
215-!a16
(referring to the earlier Combination Laws Repeal Acts,
1824
and
1825,
and the
Conspiracy and Protfption of Property A$,
1876).
The lecture brings
up
to
date his chapter
on
in
The System
of
lndusfrial Rda-
tions
in
Great Britain,
ed. Flanders and Clegg
(1954).
(It
may
be added here
that
no
mention need be made in this article of the Trade Disputes and Trsde
Unions Act,
1927,
which was wholly repealed in
1946.)
Lord Chancellor Lorebum, speaking
on
the Trade Disputes Bill,
1906,
Parl.
Deb.
(4th Ser.) Vol.
166.~01. 680.
See
too
Section
VII
infra,
p.
589.
Kahn-Freund,
op.
cit.,
p.
241.
Se:, too
p.
232,
where he cites Sir Winston
Churchill's famous dictum of
1911:
It
is not good for trade unions that they
should be brought in contact with the courts, and it
is
not
good
for the courts."
R.
v.
Bunn
(1872)
12
Cox
C.C.
316.
The Act of
1876
followed.
Tuff
Vale
Ry.
v.
A.S.R.S.
[1901]
A.C.
426.
The Act of
1906
ensued:
"
the
main
charter
of
Trade Unionism
"
:
Webbs'
History
of
Trade Unionism
(1920)
A.S.R.S.
v.
Osborne
[1910]
A.C.
87.
which resulted
in
the Act of
1913
which
legitimised the political levy.
Also,
it.
wi!! be contended that the distinction between
B
"
threat
"
and a
'I
warning
Legal Framework
p.
606.
is still open in future cases. See
infra,
p.
580.
572
SEPT.
1961
THE RIGHT TO THREATEN STRIKES
573
I.
ROOKES
2).
BARNARD
Rookes worked as
a
draughtsman for B.O.A.C. at London Airport,
in an office where from
1951
the union
l1
had an informal
“
100
per cent. membership
”
agreement with the employers. Under the
terms of a more formal agreement of
1949,
the employers and unions
had undertaken that,
if
a dispute arose, certain arbitration proce-
dures would be observed, and that,
‘(
no lockout
or
strike shall take
place.”
l2
In
1955
Rookes left the union. The local union members,
including the defendants Barnard and Fistal, who were respectively
branch chairman and local shop steward, took up the matter.
They and Silverthorne, the third defendant, who was a Divisional
Organiser
(“
a paid official of the union
”
13),
advocated strike
action
if
Rookes remained.
A
resolution was passed by members in
the office informing B.O.A.C.--J‘ that
if
the non-unionist
Mr.
n.
E.
Rookes is not removed
. . .
a withdrawal of labour of all A.E.S.D.
membership will take place.”
At
various times Silverthorne and
Fistal let the management know of these developments; and
Barnard produced a circular advocating the use of
“
all weapons
)’
to remove the plaintiff. Sympathetic strike action was planned. In
face of this, B.O.A.C. put Rookes on paid leave, and later lawfully
dismissed him with notice.
It
was agreed by both sides that the terms of the
1949
agreement
formed,
“
so
far as applicable part
of
the contract of employment
”
of A.E.S.D. members at the London Airport office; that a
“
trade
dispute
”
existed at all material times; and that all the defendants’
acts were done
‘‘
in furtherance
”
of that dispute. The jury found
that there was a
‘‘
conspiracy to threaten strike action
. . .
to
secure the withdrawal
”
of Rookes; that all three defendants were
parties; that all three had threatened
‘‘
to take strike action
”
to
that end; and that, their threats having caused his dismissal,
Rookes should be. awarded
27,500
damages against them.14
The judgment of Sachs
J.
based upon these findings may be
summarised as follows
:
(i) The tort of
“
intimidation
’’
had been committed by each
defendant.
It
consisted here in
“
threats
’)
to do unlawful
acts
(Le.,
to break contracts of employment by departing
11
Association
of
Engineering end Shipbuilding Draughtsmen (A.E.S.D.).
12
Clause 4
of
the Memorandum
of
Agreement, April
1,
1949. Clause 13
of
the
8&me agreement allows for termination on seven days’ notice from either side,
which Sacha
J.
may have thought included notice
during
a dispute: p.
628
and
pp. 834-635. The agreement was made between representatives
of
a
number of
trade unions and
a
number
of
employers. As to its status see
anfra,
p. 583.
On
the procedures
of
tha
“
National Joint Council,” see
Industrial Relations
Hand-
13
14
book,
2nd ed., pp.
80-82.
p.
827;
i.e.,
not
an
employee of B.O.A.C.: see
inf~a,
p.
579. The quoted
words do not appear in
[196l]
3
W.L.R.
p.
440.
pp.
630-631.
Traditional antagonisms remain a,gainst juries, largely because
of
the previous use
of
the
special
jury in such cases: see Geldart, “The
Present Law of Trade Disputes
&
Trade Unions
”
(1914)
2
Political
Quaderly,
17, p. 44.
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