“TRADE DISPUTE” AND “INDUSTRIAL DISPUTE” IN BRITISH LABOUR LAW
| Published date | 01 January 1977 |
| Author | R. C. Simpson |
| Date | 01 January 1977 |
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb01485.x |
“
TRADE DISPUTE
”
AND
“
INDUSTRIAL
DISPUTE” IN BRITISH LABOUR LAW
THE
phrase “in contemplation or furtherance of a trade dispute”
was
first used in section
3
of the Conspiracy and Protection of Pro-
perty Act
1875.
Its initial and principal function, through this section
and sections
1-3
of
the Trade Disputes Act
1906,
was to deliit
the area of industrial conflict
in
which criminal and civil liabilities
developed during the nineteenth century in cases arising out of indus-
trial conflict would not app1y.l The Trade Disputes Act
1965
was
passed to supplement this protection against legal restraint, and the
“golden formula,” as it became known, continued to afford such
protection up to the time the provisions
of
the Industrial Relations
Act
1971
came into force.
In establishing a new framework for the legal regulation of indus-
trial conflict, the Industrial Relations Act made extensive use
of
a
new formula: “in contemplation or furtherance of an industrial
dispute.”
*
This
“
new formula
”
replaced the
‘‘
golden formula
”
of
the Trade Disputes Acts. However, while the golden formula pro-
vided a protection against legal restraint, the new formula provided
only a dividing line between subjection to the restraints
of
the
economic torts* before the High Court, and subjection to those
of
unfair industrial practices
*
and in certain circumstances emergency
procedures before the National Industrial Relations Court (N.I.R.C.).5
The Trade Union and Labour Relations Acts
1974
and
1976
have
repealed the Industrial Relations Act, and restored the protectiow
of the Trade Disputes Acts in
a
revised form. The definition
of
trade
1
s.
4
of the
1906
Act provided a trade union with a defence to any action in
tort. The definition of trade dispute in
s.
5
(3)
of
the
1906
Act was applied to
s.
3
of the
1875
Act.
2 The following provisions of the Act were all limited by reference to this
phrase: the deflnitions
of
strike in
s.
167 (1)
and irregular industrial action short
of a strike
in
s.
33 (4)
(except for the purposes of
s.
65 (8):
s.
65 (11)
1;
through
these definitions, the application
of
the unfair industrial practices relating to
industrial action over the issues on which
the
Act made specific provision in
ss.
13,
16
and
33,
which concerned closed shops, union membership and unfair dismissal,
and
ss.
54
and
55
which concerned recognition; through the definition of
a
strike
the lawful character
of
a strike following due notice under
s.
147;
the application
of the unfair industrial practices in
ss.
96-98;
the availability of the emergency
procedures
in
ss.
138-145;
and the defences to the economic tort liabilities in
s.
132.
The deflnition
of
industrial dispute was in
s.
167 (1).
3
Also criminaI conspiracy since
s.
3
of
the
1875
Act was amended
so
that it
was limited by reference
to
the new formula.
4
The unfair industrial practices in
s.
36,
which concerned breach
of
a
legally
binding collective agreement, were the only ones. relevant in this context which
were
not
limited by reference
to
the new formula.
5
It was also important to determine where the line
was
drawn because trade
unions registered under the
1971
Act and those acting within the scope of their
authority on behalf
of
such
unions
were protected against both the main
tort
liabilities by
s.
132
and complaints
of
the unfair industrial practices in
ss.
96
and
97,
in respect
of
action taken within the new formula.
16
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