Industrial Relations Law

Charles Barrow

• Publisher: Routledge-Cavendish
• Year: 2013
• eBook ISBN: 9781135342241
• Edition: 2
• Topic: Law
• Subtopic: Corporate Law
• Index: Law

This book provides a clear, comprehensive and critical account of the industrial relations law that governs the relationship between workers, trade unions, and employers. It aids in understanding the contemporary framework and functioning of industrial relations law.

Chapter 1

Trade Unions – The Historical Context¹

Trade union attitudes to legal intervention and the relevance of the economic and political framework in which the law operates are more readily explicable if there is some knowledge and understanding of labour history. As a general historical introduction to trade union law, I shall concentrate here on the founding and growth of trade unions and on the criminal and civil liabilities they laboured under during their formative period prior to the First World War. A short historical overview of the development of collective bargaining and of the system of immunities to tortious liabilities is provided at the start of Part 2 and Part 3, respectively.

The Origins of Early Trade Unions

The Middle Ages to the Industrial Revolution

Wage Regulation and the Gilds

Prior to the enormous changes to the economy that occurred with the onset of the Industrial Revolution in the late 18th and early 19th centuries, the British economy was predominantly agrarian, serviced by a vast pool of unskilled labour. The few skilled workers were known as journeymen, who traditionally plied their trades travelling around the local district. They were members of a craft association or gild and were employed by a master craftsman after serving a lengthy apprenticeship.²

A gild was not exclusively an association of workers but rather a combination of masters and skilled workers with some, albeit limited, identity of interests between them. A gild would have had its own governing body, rules, customs and traditions which controlled all facets of the trade. It would also regulate standards of workmanship, fixed rates of pay, the pricing of the product produced and entry into the craft through the apprenticeship system. No craftsman could work at his craft without being a member, whilst no master could employ any person who was not a member of the gild.

The advent of the Black Death (bubonic plague) in the 14th century decimated the working population by up to a third. The resulting shortage of labour triggered demands for higher wages from both the skilled and unskilled. The response of the State to this unwanted development was the passage of legislation that regulated wages. Under the Statute of Labourers, of 1349 and 1351, wages were fixed by Parliament, based on the customary wages prevailing in the district. Those workers who agitated for higher pay or left their work before the agreed time risked criminal prosecution and imprisonment.

From 1389, under the authority of the third Statute of Labourers, the responsibility for fixing wages passed to Justices of the Peace (JPs), who were empowered to take into account the fluctuation of food prices in the locality before determining wages. Spasmodic labour scarcity caused by the residue of the plague was still a feature of economic life in the 15th century. Consequently, in order to stop labourers from moving from one employer to another in times of labour shortages, legislation in 1423 and 1427 reinforced wage fixing by providing JPs with powers to impose greater penalties on workers who accepted wages above the fixed rate or who took action to improve their conditions of work or wages.³

The Tudor and Stuart eras were marked by ever increasing State regulation of the economy. The prevailing doctrine of mercantilism or protectionism preached prosperity through national and individual economic self-sufficiency. Individual self-sufficiency was to be achieved by the tight regulation of the labour market to attain full employment and a minimum standard of living. To achieve these goals, the State imposed further wage and price controls through the Statute of Artificers 1563. This Act repealed all earlier statutes regulating employment and gave JPs greater power to fix the wages of both skilled and unskilled labour. Unlike the previous system, this was done under the supervision of central government. The wages were recorded in the Court of Chancery, proclaimed in public and fixed in a convenient position for the public to view.⁴

Wage fixing for the skilled worker became a form of minimum wage, which was exceeded where masters could be persuaded, through the power of the gild system or by labour scarcity, to improve the established wage. Wage fixing reinforced their status over the unskilled and provided official recognition of their worth. For the agricultural labourer, however, wage fixing underlined their subservient status as, with no skill to sell, there was usually little need for employers to enhance the pay above the very low subsistence rates set by JPs.

Where properly applied, the Act had a beneficial influence on the living standards of many skilled workers, since it was based on the notion that they should be paid a reasonable wage for their labour. However, as the century progressed, the ideals underpinning the Act were subverted by the wayward and erratic application of wage fixing. In some localities, where the supply of skilled labour was plentiful, a low wage was fixed by JPs influenced by employers and so unsympathetic to the notion of a ‘reasonable wage’. Others failed to utilise their discretion to fix a new wage every year, so that in some districts it would be many years before a new wage was settled to reflect any increase in prices. Even where a reasonable wage was determined, there was no guarantee in times of economic hardship that all employers would abide by that rate of pay nor that the JPs would enforce that wage against them.

The power of the gilds to fix wages and other conditions of work and to protect the customs of the trade had been seriously weakened by this degree of State regulation of the economy. The gild system of production was now in terminal decline, further loosening the ties between the gilds, masters and journeymen.⁵ It was because of the failure of the gilds to adjust to the new conditions of production and to protect the interests of journeymen against the iniquities of wage fixing that groups of journeymen initiated self-help groups that eventually evolved into the first forms of trade unions.

Locally based associations of journeymen had previously existed for recreational and social purposes. The failure of wage fixing to secure acceptable living standards transformed these associations, in the late 17th and early 18th centuries, into societies and clubs for the provision of mutual insurance benefits against sickness, unemployment, old age and death. These self-help groups were the forerunners of what later became known as ‘friendly societies’ and spread widely across the country throughout the 18th and 19th centuries.

The more permanent social clubs or friendly societies were transformed into pressure groups to petition JPs to act on their powers of wage fixing. For some of these groups, their main concerns were not necessarily over pay, but over the recognition of their status and the erosion of their traditional rights and privileges, formerly guaranteed through the gilds. Thus, it was not unusual for such associations to petition Parliament to secure legislation protecting their restrictive customs and practices on apprenticeships and on the use of substitute unskilled labour. In this way, entry into the trade could be controlled and the supply of labour limited, so ensuring wages would be kept high. Where petitions to JPs or Parliament failed, there is evidence that on occasion some trade associations attempted to negotiate directly with employers, even countenancing strike action against employers who refused to pay the fixed wage.⁶

The response of the State to these new combinations agitating for improved pay and conditions was to legislate against them in specific trades. Legislation was passed, for example, in 1720 making the journeymen tailors association illegal. Legislation in 1725 and in 1749 proscribed the associations of weavers and dyers, respectively. In addition, it was held, in R v Journeymen Taylors of Cambridge,⁷ that although it was lawful for a combination to seek to enforce the statutory provisions on wage fixing by petition, where persons combined for other, unlawful purposes, such as to raise wages or change conditions of work by negotiation with employers, the common law crime of conspiracy was committed.⁸

Trade Unions and the Industrial Revolution

Despite this apparent illegality, many trade associations continued to thrive; operating within the confines of the law by stressing their friendly society rather than their industrial purposes.⁹ An important factor in their development during the latter part of the 18th century was the response by skilled workers to the changing economic conditions. As the control economy of the 17th and early 18th centuries, based on the strict regulation of the economy and on the domestic system of production, was discredited by the new ideas of economic laissez-faire,¹⁰ wage fixing declined and lapsed into disuse, eventually being formally discontinued in 1813.¹¹ This breakdown of wage fixing, combined with the disintegration of the gild system, meant that skilled workers, when they were dissatisfied with their wages, increasingly directed their demands for redress to employers rather than relying on the system of petitioning Parliament or JPs.

As the pace of industrial change quickened in the late 18th century, with increased specialisation and new methods of machine based work, the traditional journeyman was no longer able to aspire to become a master himself, but became a mere permanent wage earner. The skilled worker, in adjusting to the new economic realities created by the system of industrial production, soon recognised that bargaining strength was heightened when workers acted in consort. Consequently, despite residual illegality and hostile employers, by the beginning of the 19th century a form of organised craft unionism¹² had grown out of the original journeymen trade associations and societies.

Trade Union Illegalities

A feature of the early years of the Industrial Revolution was the rise in the demand for both unskilled and skilled labour as the economy grew. The demand for unskilled labour was satisfied by the movement of agrarian labourers to the industrial centres, creating an urban working class. The demand for skilled labour encouraged local autonomous trade associations to take advantage of the new economic conditions to flex their newly acquired, albeit limited, power. Yet, as the embryonic craft unions grew in confidence, their very existence was threatened by both the new economic and old political interests.

To the owners of capital, combinations of workers were a threat to the profitability of the factories and trade: to the property owning classes, they were agents of revolution and a threat to political stability. The suspicions of the State towards trade unions were generated by political developments at home and abroad. By the late 18th century, public unrest in Europe was widespread. Following the French Revolution of 1789, where the ‘workers’ had taken control, trade unions in England were regarded as a vehicle for the spreading of revolutionary ideas. At home, unrest in the armed services, with mutinies by sailors at Spithead and the Nore in 1796, food riots in London in the 1780s and the rebellion in Ireland in 1798 contributed to the sense of paranoia prevalent at that time amongst the ruling classes.¹³

It was in this atmosphere of revolution abroad and unrest at home that Parliament reacted to the continuing spread of trade unionism by passing the Unlawful Oaths Act 1797 and the Combination Acts of 1799 and 1800. As we have seen, combinations of workers in particular trades were already illegal as criminal conspiracies under the common law and by specific legislation dating from 1720. The Combination Acts of 1799 and 1800 went further by criminalising workers’ organisations in all trades or occupations. A penalty of three months’ imprisonment was specified for those who formed an association of workers that had the purpose of raising pay, reducing hours or interfering in any other way with an employer’s business or the employment of workers.¹⁴

The Combination Acts gave employers the right to prosecute for a breach of the statute. The evidence of prosecutions from the surviving records¹⁵ suggests the criminal controls were used selectively by employers. Those employers who needed to keep the goodwill of their skilled artisans to function profitably did not target the established craft associations. However, the law was ruthlessly deployed by employers to destroy any combination of unskilled factory workers and to suppress any organisation of skilled workers in the recently developed textile industries.¹⁶ As direct union activities were proscribed, the only alternative for the new workers in the mills and factories was to follow the path beaten by the older craft associations, by either banding together lawfully for the purposes of mutual welfare through friendly societies or by organising unlawfully in secret.

The banning of trade unions by the Combination Acts did not eradicate organising activity in other sectors of the economy, nor stamp out social dissension. Social and economic factors, such as poor working and living conditions,¹⁷ un...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Preface
• Contents
• Table of Cases
• Table of Statutes
• Table of Statutory Instruments
• Table of European Legislation
• Table of CAC Decisions
• Table of Abbreviations
• Chapter 1 Trade Unions – The Historical Context1
• The Regulation of Trade Union Internal Affairs
• Chapter 2 Trade Union Government and Administration
• Chapter 3 Members' Rights and the Rule Book1
• Chapter 4 Admission, Discipline and Expulsion I
• Chapter 5 Admission, Discipline and Expulsion II
• Chapter 6 Union Elections
• Chapter 7 Trade Unions and Political Activities1
• Freedom Of Association and Collective Bargaining
• Chapter 8 Legal Effect of Collective Agreements
• Chapter 9 Individual Rights for Union Members and Officials
• Chapter 10 Collective Rights for Trade Unions–Recognition
• Chapter 11 Collective Rights for Trade Unions – Information and Consultation
• Chapter 12 The Right to Associate in Trade Unions
• Industrial Conflict
• Chapter 13 Industrial Action and the Individual Worker
• Chapter 14 Civil Liabilities
• Chapter 15 Trade Union Immunities
• Chapter 16 Union Liability for Industrial Action
• Chapter 17 The Conduct of Industrial Disputes
• Index