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'Blacking" is an unfair and unlawful weapon

19th May 1972, Page 46
19th May 1972
Page 46
Page 47
Page 48
Page 46, 19th May 1972 — 'Blacking" is an unfair and unlawful weapon
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Which of the following most accurately describes the problem?

When he gave the 1VIRC's judgment ktst week in the Liverpool containers case, Sir John Donaldson spelt out the new court's views on industrial relations and the accountability of trade unions for the actions of their officials and stewards.

WHEN, on Friday, the National Industrial Relations Court gave the Transport and General Workers' Union 21 days to comply with its orders to end the blacking of container lorries at Liverpool (see page 24), the president delivered a lengthy judgmeni revealing the five-man court's views not only on the current dispute but on its own place in, and approach to, the new labour relations situation.

The Transport and General Workers' Union was represented in court by Mr Peter Pain, QC.

Giving the court's judgment, Sir John Donaldson said that by the NIRC's orders of April 12 and 20 the union had been directed to refrain both by themselves and by their officers, servants and agents from taking any action to limit the freedom of Heatons and Craddocks to use their vehicles in any lawful manner. But, he said, the application by the union for the review of these orders could not be understood without first explaining the nature of the court and the events preceding the application. He went on:— , "The National Industrial Relations Court is a court, but a court with a difference. All courts exist to uphold the rule of law. So does this court. All courts are concerned with people. So is this court.

"Without the rule of law and courts to enforce it, each one of us would be free to push and bully our fellow citizens and, which may be thought more important, our fellow citizens would be free to push and bully us. In a free-for-all none of us could hope to be the winner.

"The justification for law, the courts and the rule of law is that they protect us from unfair and oppressive actions by others. But if we are to have that protection, we must ourselves accept that the law applies to us too and limits our freedom. In civilized countries nearly everyone accepts this and agrees that it is a small price to pay. There remain the few who want to use the laws which suit them and disobey those which do not. If the rule of law is to have any meaning, the courts must in the last resort take action against these few and impose some penalty.

Not a court of lawyers

"Why then is this court different? It is different in its composition, in its objects and in its procedures. It is a court of law, but not a court of lawyers. Only the chairman is a judge. All the other members are appointed for their knowledge or experience of industrial relations. These industrial members are not advisers. They are full members of the court. In reaching ddcisions each has a vote, as does the judge. There are at least two of them and only one judge. "The intention of Parliament was that this court should not only interpret and apply the law, but should do so with knowledge of industrial life from every angle. The judges benefit from the industrial knowledge of the appointed members. The appointed members benefit from the judges' knowledge and experience of the law. The resulting decision is reached by combining their skills. We all know that many trade unions have discouraged membership of the court. That is a matter for them. We would only say that if there is a change of mind, it would be very welcome. Trade unionists have much to contribute. The Industrial Court is more than a court of law, it is a court of industrial commonsense.

"The court's procedure is different. It is designed to be quick, informal and suited to the needs of those who are not lawyers. It is not perfect and some changes have already been made. Others will come in the light of experience and we welcome constructive criticism.

"Every court seeks to do justice according to law. This court is no exception. But all laws have to be understood and

interpreted. Usually courts have to be guided solely by the words of the Act of Parliament and their general knowledge of the reasons which led Parliament to pass it. However in the case of the Industrial Relations Act 1971, Parliament has gone out a its way to help us by setting out guiding principles. These are in section 1 of the Act.

The court is independent

"First we are told that the object of the Act is to promote good industrial relations. If therefore we can interpret the Act in more than one way, we shall choose the way which seems to us most likely to improve industrial relations. We may make the wrong choice and if so we can be corrected by a higher court. But it will be our judgment and not that of the Government, the Opposition, the TUC or the CBI. Like every other court of law we are wholly independent.

"Second, we are told that the promotion of good industrial relations is to be achieved by collective bargaining, by orderly procedures for settling disputes, by paying due regard to the general interests of the community, by the existence and encouragement of responsible and effective trade unions and employers' associations, and by seeking freedom and security for workers protected against unfair industrial practices."

Sir John recalled how Heatons and Craddocks, road hauliers, had complained to the court under section 101 of the Industrial Relations Act, alleging that shop stewards of the union had committed unfair industrial practices within the meaning of section 96, which said: "It shall be an unfair Industrial practice for any person, in contemplation or furtherance of an industrial dispute, knowingly to induce or threaten to induce another person to break a contract to which that other person is a party...."

The section, he said, exempted registered trade unions and their officials; but the TGWU was not registered.

The disputes involving the dockers on Merseyside arose from the growth of containerization. The dockers appeared to raise no strong objection to containerization so long as the containers were packed or unpacked at the premises of consignor or consignee, but they maintained that the making up of part loads into full loads at groupage centres or container bases was equivalent to stowing and discharging goods on board a ship and that it was their exclusive right to perform this work in its new form.

A further variation of the work was undertaken by Heatons, who were warehousemen and so sometimes stored goods for customers and then packed them in containers for shipment. Craddocks were primarily hauliers but had undertaken some storage and this had led to stripping and restuffing containers.

As containerization grew, said Sir John, the dockers saw their jobs disappearing and the new jobs made by containerization were not always attractive to them. The dockers' strong emotions were understandable. "The dockers are bitter. As they see it, too little is done and too late. If they are right it is a criticism of their union, their employers and indeed of successive governments. Thus far the Liverpool dockers have taken action against none of them. Instead they have sought to bring pressure to bear on a few road haulage firms."

Union accepts the charge Sir John said the union accepted for the purpose of the current proceedings that the conduct of the Merseyside joint committee of stewards in organizing the "blacking" constituted an unfair industrial practice within the meaning of section 96 of the Act. The committee had set out to induce dock labour to break their contracts of employment by refusing to handle goods carried by Heatons and Craddocks and also to induce Heatons and Craddocks to break their contracts with their customers, which required them to deliver goods or collect goods from the docks.

• After considering whether a complainant should be left to decide whether or not to bring apparent disobedience of the court's orders to the notice of the court, the president said it had been decided that this might lead to complaints being used as bargaining factors; the court had decided that it was the duty of the complainant to bring any alleged disobedience to the notice of the court -but he must tell the other party of his intentions, and the particulars on which his statement to the court would rely.

There was no doubt, said Sir John, that the "blacking" was still continuing and that this was a most serious matter for Heatons and Craddocks. If the court was at this stage to impose further penalties on the union, it would be necessary to investigate in great detail what had happened since the union was last fined.

"However, much else has since occurred. When the fines were imposed the whole authority of this court was being challenged, but that is no longer the case. In a short space of time the relationship between this court and the trades union movement has undergone a radical change, which we welcome unreservedly. We now have the

advantage of the Transport and General Workers' Union being represented in these proceedings and Mr. Pain has been able to advance a carefully reasoned argument as to the relationship between the shop stewards and the union.

"This argument, which is of far reaching significance, was designed to show that the union is not in breach of the court's orders. In the circumstances, we felt it appropriate to say at an early stage in the hearing that, however this issue was determined, we should not think it right to impose. any further penalty on the union in respect of action taken prior to the giving of this judgment. A new chapter has begun. Justice, the public interest and the promotion of good industrial relations all point to the desirability of making a fresh start.

'Stewards exceeding their authority' "Mr Pain's first submission is that the order which is said to have been disobeyed must be strictly construed. So construed the union's only obligation is to obey by itself, its officers, servants and agents. It is under no liability in respect of actions by persons who are not in these categories. This is correct.

"His next submission is that before the court can hold that the union has disobeyed its orders, it must be satisfied of this fact beyond all reasonable doubt and he cites re. Bramblevale (1970) Ch. 128. This also we accept, "His third submission is that the actions said to constitute disobedience of the orders were those of shop stewards acting outside the scope of their authority from the union and despite the advice of the union. Such actions, he submits, do not constitute the actions of the union or actions for which it is accountable. This is the nub of the matter. The basis of this submission is that the authority of the shop stewards is limited by the union's rules to acting in accordance with the union's policy. In support of this submission he refers to Rule 11.4.

"But it is also useful to refer to the Shop Stewards' Handbook which is perhaps more informative of the shop stewards' true position. . . . The essence of the matter is perhaps contained in three passages to be found respectively at pages 4, 90 and 6. As these passages put it:—

'As a shop steward there is no doubt that the eyes of the members in your shop are upon you. You are the Union as far as they are concerned.' As a shop steward, even though you may have been elected by the trade union members in the workshop, you are an accredited official of the branch. You should therefore conform to union policy as laid down in the branch, and, as required, report to the branch On your activity.' In dealing with many of your problems the union will expect you to be able to manage on your own. If you cannot, you know you have the power and the resources of the TGWU behind you.'

"Mr Pain does not seek to resile from the position stated in the handbook and indeed it would be idle for him to do so. The industrial members of this court all know that the essence of the position of the union shop steward is that, although chosen by the shop floor, he is the representative of the union. So long as he remains an accredited shop steward of the union, management is entitled to assume and usually does assume that he has the support of the union and is acting on its behalf and in accordance with such policies as it may have. We say 'such policies as it may have' because some unions, including the Transport and General Workers' Union, seem to leave their shop stewards a wide discretion in the making of local policy. Certainly their importance in the union organization cannot be doubted. Whether or not Mr. Jones in fact stated on television that 'we do not call on shop stewards to obey the union — they are the union', this Conveys a very good idea of their status within this union.

"We asked Mr. Pain what was the union's policy with regard to the commission of unfair industrial practices by shop stewards and he replied that he did not know that they had one. This is, perhaps, not very surprising in view of their attitude to the Industrial Relations Act. But it does lead to the conclusion that the shop stewards' action in blacking the complainants' lorries before this court made its orders prohibiting this practice was not in breach of the union's rules. The fact that they took this action gave rise to neither surprise nor overt disapproval and the only possible inference is that it was action which they were impliedly authorized to take in the exercise of their discretion. Mr. Pain did not seek to argue the contrary before us and, in view of the limited scope of the application for review, it may in any event not have been open to him to do so.

"However, he submits that the position is entirely different once the shop stewards continued with their 'blacking' activities after the court had made an order against the union requiring them to cease. This is a surprising submission. Before the court made a prohibitory order the shop stewards were the agents of the union, acting within the scope of their authority. After the order, without any apparent change in the relationship between them and the union, the action became unauthorized action for which the union is not accountable — a frolic of the shop stewards' own. How did this change come about? Mr. Pain submits that the policy of the union is and has always been that orders of courts must be obeyed. Accordingly any further 'blacking' by the shop stewards was contrary to union policy and, as such, outside the scope of the shop stewards' authority as agents for the union. This was not, of course, to admit that the 'blacking' had to cease. Far from it. The court's order was directed to the union itself and not to the shop stewards. As thenceforth it was not being undertaken on behalf of the union, the 'blacking' constituted no breach of the court's order and in any event the union was not accountable.

"If this was the law, the law would be an ass. But it is not."

Sir John quoted case law and then pointed out that the union had put the shop stewards in their place in relation to the "blacking" before the court's orders had been made. It had not moved them and was answerable for the blacking continuing. Furthermore, the action had been taken for the union's own benefit — its success would have led to a non-stuffing agreement between Heatons and the union on the latter's terms.

"But the union's difficulties do not stop there. Whilst we welcome the assurance that the union's policy is and always has been to obey the orders of all courts of law, the former attitude of the union to the Industrial Relations Act and to the institutions created by it has been such that the shop stewards may understandably not have appreciated that this policy applied to orders of this court. In this connection it is significant that although various officers of the union wrote advising that the court's orders should be obeyed and the industrial action against Heatons and Craddocks discontinued, at no time did anyone say that it must cease, that action in such circumstances was contrary to union policy or that it was unauthorized. Indeed this has not been said to this day, otherwise than to a modified extent in the affidavits read to the court.

"In the circumstances we have no hesitation in affirming our earlier decisions that the union by its agents had disobeyed this court's orders.

"But it is desirable that we should also consider Mr. Pain's further submissions that there is and was nothing which the union could do to prevent the shop stewards continuing their industrial action and that any action to withdraw their credentials would only aggravate a worsening industrial situation.

Challenge to leadership

"We have been reminded on more than one occasion that a trade union is not an army, but a voluntary association. This is, indeed, the case and it will be a sad day if the movement ever loses this character. We have-also been told that it is the policy of the Transport and General Workers' Union to decentralize authority and involve the general body of members in decision making. Again this is wholly in accord with the guiding principles of the Act. But the voluntary principle and active participation by the membership are not an excuse for irresponsibility and lawlessness. It is a challenge to real leadership. It is not for this court to tell the leaders of the union how to do their duty. But it is for us to point out where that duty lies. "The Act provides a framework of rules within which the unions must work in the general interests of the community. No one wants to take industrial action and in a perfect world it would not be needed. Even in this imperfect world it should be the last resort, to be used only if all methods of negotiation and settlement have failed. When it is used it must be in accordance with the law.

"The right to strike on proper notice remains and will be defended by this court. It is a blunt instrument and one which damages the public, those who are striking and those against whom the strike is directed. But it is a lawful weapon in an industrial conflict. 'Blacking' damages the public, fellow workers and the employers of those fellow workers. It does not damage those who do the 'blacking'. They draw their pay. It is an unfair weapon and Parliament has declared it to be unlawful.

"The duty of trade union officials at every level from the shop steward upwards is to lead. Leadership takes many forms — setting an example, advising, explaining, using the elected constitutional committees of the union to the full and, when all else fails, using the disciplinary powers with which they have been entrusted by the membership. Their duty is to lead in the direction which will best serve the interests of the membership and the community. The interests of neither are served by breaking the law. Change the law by all means. But do not break it. That course leads to disaster for us all. The law is plain. The union is accountable if its officers, officials, representatives or shop stewards do their union work in breach of the law. It is for the union to see that they do not break the law. If they persist in doing so they are unworthy of the union's trust and of continuing in office.

"The various officials who have given evidence may well be right when they say that the withdrawal of the credentials of the shop stewards of the joint committee at this moment would be damaging to industrial relations. They may also be right that such action could lead to a strike and great damage to the economy. These dangers are obvious, but they are short-term dangers. They must be faced in order that in the longer term we may have an orderly system of industrial relations of which we can all be proud. This will take leadership and courage in full measure. Surely the union has both.

"Now that we have reconsidered and affirmed our decisions after the fullest argument on behalf of the union, it is for the union to obey. The task of the leadership will not be easy for the fog of argument has hidden the vital difference between objecting to a law and disobeying it. But no further time must be lost. We shall adjourn this matter for 21 days and shall take no further action if by the end of that period the union is in compliance with the law. If it is not, we shall be forced again to assert our authority and in unmistakable manner. It is our hope and our belief that the situation will not arise."

(The union has lodged an appeal with the High Court which is likely to be heard on May 30.)


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