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Trade Union Law in the British Welfare State W Louisiana Law Review Volume 18 | Number 2 February 1958 Trade Union Law in the British Welfare State W. F. Frank Repository Citation W. F. Frank, Trade Union Law in the British Welfare State, 18 La. L. Rev. (1958) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol18/iss2/3 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Trade Union Law in the British Welfare State W1. F. Frank* A BRIEF SURVEY OF THE EXISTING LAW "If men are ever to be able to break the bonds of oppression or servitude, they must be free to meet and discuss their grievances and to work out in unison a plan of action to set things right."' A trade union is defined in English law as "any combination, whether temporary or permanent, the principal objects of which are under its constitution statutory objects, namely the regula- tion of the relations between workmen and masters or between workmen and workmen or between masters and masters, or the imposing of restrictive conditions on the conduct of any trade or business and also the provision of benefits to members .... ,,2 It should be noted that the definition is wide enough to in- clude not only trade unions or workers but also employers' asso- ciations. A trade union, by its rules, may have any number of objects, but if it is to be a trade union in the legal sense its prin- cipal objects must include one or both of those mentioned. In order to ascertain which objects are the principal ones, the rules must be considered as a whole. Although the definition refers also to the provision of benefits to members, this is merely an ancillary object and an association formed solely for this pur- pose would not be a trade union.8 At common law, before the passing of the Trade Union Act, 1871, 4 a trade union was treated as an ordinary unincorporated association, such as a social or sports club. It differed, how- ever, from other unincorporated associations in that it was re- garded as an illegal association if its purposes were deemed to be in restraint of trade. This illegality would affect not only union contracts which would be unenforceable, but also the re- *Dr. jur. (Prague), M.Sc. (Econ.) (London), B.Com. (London), LL.B. (Lon- don) ; Senior Lecturer, Derby and District College of Technology, Derby, England; editor of The Industrial Law Review, 1950-1956; member of the editorial staff of The Journal of Business Law since 1956. 1. DENNING, THE ROAD TO JUSTICE 98 (1955). 2. Trade Union Act, 1913, 2 & 3 GEO. V, c. 30, §§ 2(1), 1(2). 3. Cf. Amalgamated Society of Railway Servants v. Osborne, [1910] A.C. 87, 95. 4. 34 & 35 VICT., c. 31. [271] LOUISIANA LAW REVIEW [Vol. XVIII lationship between the trade union and its officials. A union whose objects were in unreasonable restraint of trade was un- able to claim union funds which had been wrongfully taken by an official of the union. The status of trade unions was fundamentally altered by the passing of the Trade Union Act.5 This act provides that "the purposes of any trade union shall not, by reason merely that they are in restraint of trade be unlawful so as to render void or void- able any agreement or trust."' The effect of this section, if it were standing alone, would have been that the courts might have been called upon to enforce agreements in restraint of trade entered into by trade unions. Thus, a trade union might have been able to sue in damages a member who, in breach of the union rules, had refused to join a strike when called upon to do so by the union committee. In order to avoid placing the courts in such an invidious position, Section 4 of the 1871 act states that notwithstanding the provisions of the preceding section a court should not entertain proceedings instituted with the ob- ject of directly enforcing or recovering damages for the breach of any of a number of agreements enumerated there. These in- clude mainly agreements between the trade union and its mem- bers as to the payment of subscriptions and penalties by members and of benefits by the union. Agreements made between one trade union and another are also declared to be unenforceable. It must be recalled, however, that Section 4 applies only to trade unions which were illegal at common law. The contracts of trade unions which are not illegal at common law could be enforced by court action. It is unlikely that there are many trade unions in existence today whose rules would have been legal at common 7 law. The rules of a trade union, like the rules of any other un- incorporated association, represent a contract between the mem- bers of the union. Any member joining an existing union does so on the understanding that he subscribes to the rules. If a trade union acts in breach of its rules, any member may appeal to the court asking for a declaration that the action was illegal. Such a declaration will be granted as it is not looked upon as a 5. Ibid. 6. Id. § 3. 7. Kahn-Freund, The Illegality of a Trade Union, 7 MODERN L. REV. 192, 204 (1944) : "Yet, it still remains possible that at any given moment, a domestic trade union agreement might be declared directly enforceable by a Court of Law if the Court was not satisfied that the union was in restraint of trade." 1958] TRADE UNION LAW 273 means of "directly enforcing" one of the agreements enumerated in Section 4 of the 1871 act." As long as the rules are not illegal, the court will not examine their reasonableness. Fairly far- reaching powers as to the expulsion of members may be granted to union committees. This issue will be further considered in the second part of this article. The Trade Union Act, 1871, 9 introduced also a system of voluntary registration for trade unions. Registration takes place with the Registrar of Friendly Societies who acts also as Registrar of Trade Unions. "The object of introducing a system of registration for trade unions was to encourage the establish- ment of permanent and stable bodies having adequate written constitutions and regularly audited accounts." 10 The act details the matters to be covered by the rules of a registered trade union. The registrar has certain limited powers of supervision over the affairs of a registered trade union. Through registration a union acquires advantages not enjoyed by unregistered unions, such as exemption from income tax on such portions of its invest- ment income as are applicable solely for the purpose of providing benefits (e.g., in sickness, old age, or unemployment). A regis- tered trade union, though still legally an unincorporated associa- tion, may sue and be sued in its registered name and it possesses summary remedies against fraudulent officials. The property of any trade union, as that of any other unincorporated associa- tion, has to be held on its behalf by trustees, but the trustees may convey such property belonging to registered trade unions to their successors in that office without any need for a formal conveyance. The advantages of registration are procedural rather than material, but even so the large majority of trade unions of workers has registered and a substantial number of trade unions of employers has done so as well." In order to achieve their objects, trade unions may wish to call a strike. At common law the calling of a strike was punish- 8. See Kelly v. National Society of Operative Printers Assistants, 84 L.J.K.B. 2236 (1915). 9. 34 & 35 VICT., c. 31. 10. CITRINE, TRADE UNION LAW 11 (1950). 11. At the end of 1955 there were 405 registered trade unions of employees with a total membership of 8,616,525. This compares with a figure of 251 un- registered trade unions having, however, merely 1,145,475 members. There were also 105 employers' associations registered as trade unions with a membership of 116,330. It is impossible to give even an estimate of the membership of unregis- tered employers' associations, but they must number about 1500. Minister of La- bour Gazette, November 1956. LOUISIANA LAW REVIEW (Vol. XVIII able as a criminal conspiracy. 12 The criminal liability of trade union officials calling a strike was removed by Section 3 of the Conspiracy and Protection of Property Act, 1875,18 which pro- vided that where an act is not illegal in itself, the fact that it is done in combination with others will not render it punishable as a criminal offense, provided that it was done in contempla- tion or furtherance of a trade dispute. The act did not define a trade dispute, but that has since been done by Section 5 of the Trade Disputes Act, 1906,14 which states that a trade dispute means "any dispute between employers and workmen, or be- tween workmen and workmen, which is connected with the em- ployment or non-employment, or the terms of the employment, or with the conditions of labour, of any person, and the expres- sion 'workmen' means all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises.""' The definition is sufficiently widely drawn to include all disputes having an industrial connection, such as closed shop disputes 0 and recognition disputes.
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