Wage‐Slave or Entrepreneur?
| Author | C. D. Drake |
| Published date | 01 July 1968 |
| Date | 01 July 1968 |
| DOI | http://doi.org/10.1111/j.1468-2230.1968.tb01200.x |
WAGE-SLAVE
OR
ENTREPRENEUR?
LIKE
a yogi contemplating his navel, although without the same
apparent satisfaction, the labour lawyer is necessarily drawn to the
contemplation of the mystery comprised in the word
‘‘
servant,”
or
“
employee ”-the judicially commended word for contemporary
use.’ Industrial law, itself a misnomer for what American and con-
tinental lawyers term more correctly labour law, has been defined
as
“
a non-technical term almost equivalent to what lawyers call
the Law of Master and Servant.”
As
such, industrial law in its
common law and (increasingly) statutory application is confronted
to an unusual degree with the problem of the so-called
‘‘
categories
of competing reference
”
such as employee, agent, independent
contractor and officer of a company.
It
is difficult
to
dissent from
Professor Stone’s assertion that the syllogistic process by which
the courts arrive at conclusions is largely illusory in that the con-
clusion is already implicit in the initial choice of the appropriate
category.
An interesting triptych of cases in
1966
and a recent
1968
case,
dealing with the familiar servant
v.
independent contractor conun-
drum, show that the courts, working against the background of an
increasingly technocratic society, are being required to counter-
balance the advantage of clear and simple definition against newer
and possibly more uncertain definition where the latter permits
of
legal adaptation to changing patterns of social and economic organ-
isation.
It
is proposed to consider the four cases to see
if
they cast
any light upon the quintessence of
‘‘
service
”
in contrast to
‘‘
ser-
vices.” The cases also provide a legitimate pretext for concluding
with some general observations concerning the adequacy of legal
definition in this important and growing area
of
law.
1
Pre:umblp because
it
is free
of
the domestic
or
menial overtones attaching
to servant
”:
see Fridman,
The
Modern Law
of
Employment,
pp.
31-32.
This is in line with the increased social suaceptibihty of
a
society
preoccupied
with
status and which prefers the rodent operator
to
the rtt-catcher (see the
apocryp!,al reincarnation
of
the chimney-sweep
as
the domestic decar-
boniser almost equ?lent bemuse indus-
ffial
law mu,$ occasional1 home-worker
”
or the
Statutory Jefinitions sometimes reflect this,
e.g.,
8.
10,
Truck
Amendment Act
1887;
8.
10,
Employers and Workmen Act
1875;
8.
8,
Indus-
trial Courts Act 1919;
and
s.
24,
Wages Councils Act 1959 (but see
Westall
Richardson Ltd.
v.
Roulson
[1954]
1
W.L.R.,905). The author
seeks to show that each such illusory category identified, since it does
not
yield any one necessary answer by the syllogism both invites and compels
the
court
to
an m6wer based
on
evaluation, conscious
or
unconscious, of the
social situation confronting
it
”
(p. 241). Judicial acknowled ement of this
factor
ia
revealed in Lord Radcliffe’s opening remarks in
f.C.1.
Ltd.
V.
ShatweIZ
[1965]
A.C.
656.
in Saunders and Wilson,
The pofeasions,
Clarend:,n Press,
1938).
*
Frank Tillyard,
Industrial Law,
p.
1:
take cognisance of the
out-worker.
3
Prof.
J.
Stone,
Leq$ System and Lawyers Reasoning,
1964.
408
JULY
1968
WAGE-SLAVE OR ENTREPRENEUR
?
409
TILE
FOUR
CASES
In the first case,
Emerald Construction
Co.
v.
Lozuthian,4
the Court
of Appeal granted an interlocutory injunction restraining the defend-
ants, trade union officials, from bringing pressure to bear upon a
building firm which had employed the plaintiff to execute brick-
laying work under a
"
Imabour only
"
sub-contract. Under the terms
of
the sub-contract the plaintiff agreed to provide all labour for
brickwork at agreed prices, whilst the main contractor assumed
responsibility for materials, plant and transport, reserving
to
him-
self the right to allocate brickwork to other sub-contractors.
It
appeared that he might terminate the contract should the plaintiff
fail to maintain reasonable progress. Bearing in mind that the pro-
ceedings were interlocutory, the Court
of
Appeal felt that a prima
f,acie case had been made out showing that the variety of pressures
which had been applied to secure the dismissal of the sub-contractor
amounted to an attempt to procure a breach of contract. Much of
the discussion and criticism of this case hinges on the degree of
knowledge required of the
Lumley
V.
Gye
tortfeasor, but, for our
purposes, the case is interesting because of the finding that the
"
labour only
"
sub-contract was not a
"
contract of employment
')
within the meaning (and therefore of the protection) of sections
8
and
1
of the Trade Disputes Act
1906
and
1905
respectively. In line
with
Stratford
v.
Lindley
this case reveals how carefully the trade
union official must pick
his
way between inducing
or
procuring
breach of a contract of employment which, if no unlawful means
such as intimidation are used, is protected, and inducing
or
pro-
curing breach of a
"
commercial
"
contract, which is not protected.
Despite the definition of
"
trade dispute
"
in section
5
(a),
which
is wide enough to include sympathetic action, both the primary
boycott involving as a
"
necessary
')
consequence the breach of com-
mercial contracts, and the secondary boycott having the same effect,
are risky affairs. Trade unions (and some economists) have con-
demned
"
labour only
"
sub-contracting, at present chiefly confined
to the building and civil engineering industries, on the grounds that
it is bad for the men and bad for the unions; bad for the former,
because they lose an impressive amount of common law and statu-
tory protection, and bad for the latter, because the practice weakens
their influence as bargaining agencies. In the
Emerald
case,
National Working Rule No.
8
(dealing with
"
labour only
"
sub-
contracting and promulgated by the National Joint Council for the
4
[19GE]
1
W.L.R.
691;
[1%6]
1
All
E.R.
1013.
5
e.g.,
that
of
Prof.
I(.
W.
Wedderburn,
who
suggested
to
the Donovan Com-
mission that
the
case
might represent
an
extension
of
the tort in question
(Minutes
of
Evidence,
31,
paras.
6005-6006).
And
now
me
Daily
Mirror
Nawapapers
Ltd.
v.
Gardner
[1968]
2
All
E.R.
163,
discussed below, p.
440.
Several
of
the memoranda submitted to the Donovan
Corn-
miasion advert to the possibility that the employer might
inform
strikers,
prospective
or
actual,
of
hia commercial commihents with the aim
of
leaving
the strikers unprotected by the Trade Disputes Act
1W,
8.
3.
6
[lo651
A.C.
260.
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