Trade Unions in Disguise
| Author | M. A. Hickling |
| Published date | 01 November 1964 |
| Date | 01 November 1964 |
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb02247.x |
THE
MODERN
LAW
REVIEW
Vdume
27
November
1964
No.
6
TRADE UNIONS IN DISGUISE
IN
1918,'
Lord Wrenbury condemned the pernicious practice of
burying the real objects of a company beneath a mass of words in
the memorandum
of
association. The purpose of this article is to
examine how that practice, and the use of vague and ambiguous
language, has been used
so
to disguise a trade union as to enable
it
to register under the Companies Acts,2
or
the Industrial and
Provident Societies Acts.S Section
5
of the Trade Union Act,
1871,"
provides that those Acts shall not apply to trade unions, and
that registration
of
any union thereunder shall be void.
Failure to appreciate that the scope
of
the legal definition is
much wider than the popular concept
of
a trade union may be one
reason for the frequent violation of this provision.
It
embraces not
only labour unions, but also most organisations of employers and
most
"
trade combinations
''
or
''
trade associations.yy Although
''
trade association
"
has been defined
for
the purposes of the Restric-
tive Trade Practices Act,
1956,5
as
a
body of persons, whether
incorporated
or
not, which is formed for the purpose of furthering
the trade interests of its members,
it
should be noted that this Act
in
no
way affects the definition
of
trade union
or
the prohibition
contained in section
5
of the
1871
Act.
THE
LEGAL
DEFINITION
OF
TRADE UNION
There is
no
complete definition in any
of
the various Trade Union
Acts.6
It
is necessary to resort to section
23
of the
1871
Act
for
its
proviso, to section
16
of
the
1876
Act which is still intact, as well
1
Cotman
v.
RTougham
[1918]
A.C.
614
at
p.
523.
2
Companies Act,
1948
(11
&
12
Geo.
6,
c.
38),
8.
459
(9).
8
1893
(66
&
57
Vict. c.
39)
and subsequent amendments.
4
(34
&
35
Vict.
c.
31);
the section also prohibits registration under the Acts
relating to Friendly Societies, but they do
not
concern
us
here.
5
(4
&
5
Eliz.
2,
c.
SS),
8.
6
(8).
6
The relevant Acts ere the Trade
Union
Act,
1871,
note
4
above; Trade Union
Act (Amendment) Act,
1876 (39
&
40
Vict. c.
22);
Trade Union Act,
1913
(2
&
3
Geo.
5,
c.
30).
VOL.
27
625
22
626
THE
MODERN
LAW REVIEW
VOL
27
as to sections
1
and
2
of the
1913
Act. Combining these,
a
trade
union may be defined as follows:
“
Any combination, whether temporary
or
permanent, the
principal objects of which under its constitution are statutory
objects, namely, the regulation of the relations between work-
men and masters,
or
between masters and masters,
or
for
imposing restrictive conditions
on
the conduct of any trade
or
business, and also the provision of benefits to members, whether
such combination would
or
would not, if the
1871
Act had not
been passed, have been deemed to have been an unlawful
combination by reason of some one
or
more of its purposes
being in restraint of trade: provided that this shall not affect-
1.
Any agreement between partners as to their own business;
2.
Any agreement between an employer and those employed
by him as to such employment;
8.
Any agreement in consideration of the sale of the good-
will of a business,
or
of instruction in any profession,
trade,
or
handicraft.’’
To
reduce the area of conflict between unions and the courts, the
1913
Act provides that
a
certificate of registration is conclusive of
trade union status,? and that an unregistered body can apply to the
Registrar for a certificate that
it
is a trade union, which is similarly
conclusive.*
THE RELATION
BETWEEN
THE
CONSTITUTION
AND
PRACTICE
The words
‘‘
under its constitution,” which were introduced into
the definition by section
2
(1)
of the
1913
Act, might be taken
as
suggesting that unless the statutory objects are plainly set out in
the constitution the combination is not a trade
If
this is
correct, then a combination for the purpose of imposing restrictive
conditions
on
trade can avoid the application of section
5
of the
1871
Act simply by omitting any reference to trade union objects
or
by
employing deliberately vague and ambiguous language.
A number of factors militate against this. First, the phrase does
not appear in the definition of
1876,
which is still unrepealed.
Combinations may fall within it even
if
they possess
no
formal
constitution. Further, prior to the
1913
Act the courts were
prepared to look to the manner in which the objects were worked
out
to
discover the real object and scope of the association.lo
If
7
8.
a
(1).
8
8.
a
(31,
(5).
9
Friedmann,
Anti-Trust Laws
(1956),
p.
344.
10
Chamberlain’s Wharf, Ltd.
v.
Smith
[1900] 2
Ch.
605
at pp.
611, 614
per
Lord Alverstone M.R. and Collins
L.J.
respectively; and see
Albion Quarry-
ing
Go.
Pty., Ltd.
v.
Associated Quarries Pty., Ltd.
[1945]
V.L.R.
1
at
pp.
23,
24
per
Herring
C.J.;
Goldfinch
v.
Rangitikei Sawmillers’ Association, Ltd.
(1914)
.?3
N.Z.L.R.
666; 16
Ga2.L.R.
371;
Melsan
District
Hop
Growers’
Co-operative Association, Ltd.
v.
McGlasken
[1932]
N.Z.L.R.
308;
1
(3az.L.R.
l-decisions
on
the
1876
definition which
was
incorporated into Australian and
New Zealand legielation.
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