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Trade Unions and Their Members
Published online by Cambridge University Press: 16 January 2009
Extract
In commenting on a decision of the House of Lords, given some fifty years ago, concerning the law relating to unincorporated associations as it affected the Free Church of Scotland, Maitland was provoked to say, “I cannot think that it was a brilliant day in our legal annals when the affairs of the Free Church of Scotland were brought before the House of Lords and the dead hand fell with a resounding slap upon the living body.” It was with a much revitalised hand, however, that the same tribunal, in Bonsor v. Musicians' Union, disturbed the slumbers of that self-same branch of our law, but this time in its application to trade unions. On this occasion, the slap has been described as a blow struck for freedom, and though the ultimate decision is in itself of the first importance, it is perhaps in a consideration of the diverse means employed in reaching that result that the student will find the greatest interest.
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- Copyright © Cambridge Law Journal and Contributors 1956
References
1 General Assembly of Free Church of Scotland v. Lord Overtoun [1904] A.C. 515.Google Scholar
2 “Moral Personality and Legal Personality,” in Selected Essays, p. 237.
3 [1955] 3 W.L.R. 788.
4 [1954] 1 Ch. 479, C.A., in [1954] C.L.J. 162.
5 (1915) 84 L.J.K.B. 2236; 113 L.T. 1055.
6 [1954] 1 Ch. 479, C.A.
7 Sir Raymond Evershed M.R. and Jenkins L.J.; Denning L.J. dissenting.
8 Mr. Bonsor died on February 18, 1954, a few days before the Court of Appeal delivered judgment, but the court antedated its order to February 16.
9 For an illustration of the difficulties which may arise when the plaintiff claims both damages and a declaration, see Vine v. National Dock Labour Board [1956] 2 W.L.R. 311, C.A.
10 [1952] 2 Q.B. 329, C.A.
11 [1952] 1 K.B. 189, C.A.
12 [1953] 2 Q.B. 18, C.A.
13 Ibid., at p. 42.
14 [1954] 1 Ch. 479, C.A.
15 Yorkshire Miners' Assocn. v. Howden [1905] A.C. 256Google Scholar; Osborne v. Amalgamated Society of Railway Servants [1911] 1 Ch. 540Google Scholar; Kelly v. National Society of Operative Printers' Assistants (1915) 84 L.J.K.B. 2236Google Scholar; R. v. Cheshire County Court Judge & United Society of Boilermakers, Ex p. Malone [1921] 2 K.B. 694Google Scholar; Amalgamated Society of Carpenters, Cabinet Makers and Joiners v. Braithwaite [1922] 2 A.C. 440.Google Scholar
16 If the union, in defiance of the court's order, refuses to restore the member to his rightful position, proceedings in contempt would presumably lie against the appropriate officers; but no reported instance can be found of such proceedings.
17 [1913] 1 Ch. 366 at 374. To the same effect are the judgments in Abbott v. Sullivan [1952] 1 K.B. 189, C.A., at p. 193 per Evershed M.R., at p. 200 per Denning L.J., and at p. 216 per Morris L.J. See also Kelly's case (note 5, ante) per Phillimore L.J. at p. 2238; and Baker v. Jones [1954] 1 W.L.R. 1005.
18 Even if it was recognised as a tort, no action would lie against the trade union because of the provisions of the Trade Disputes Act, 1906, s. 4 (1): “An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court.” Of this provision Darling, J. in Bussy v. Amalgamated Society of Railway Servants (1908) 24 T.L.R. 437Google Scholar, said: “From the humiliating position of being on a level with other lawful associations of His Majesty's subjects the statute of 1906 has relieved all registered trade unions and they are now super legem just as the medieval Emperor was super grammaticam.” The personal liability of the individual tortfeasor is unaffected by this section, though he may be protected in respect of acts falling under s. 3 of that Act.
19 [1955] 3 W.L.R. 788 at p. 796 per Lord Morton of Henryton.
20 Lord Morton of Henryton (at p. 790–791) and Lord Porter (at p. 797) state categorically that Kelly's case is indistinguishable from Bonsor's case and that the Court of Appeal were bound to follow the earlier precedent.
1 At p. 791.
2 (1915) 84 L.J.K.B. 2236 at p. 2238.
3 Lord Porter (at p. 797) and Lord Keith (at p. 818) also appear to accept this as the true ratio. Lord MacDermott (at p. 813) considers that the words of Phillimore L.J. “… and if he sues the trade union for what it has done, he is suing himself among others,” do not form part of the ratio which, he says, is to be found in that part of the headnote which reads: “A member of a trade union who has been illegally expelled by the Committee … cannot recover damages for breach of the contract contained in the rules, since the committee who were responsible for breaking the contract were acting as agents for the plaintiff equally with his fellow members.”
4 At p. 791.
5 At pp. 799–800, “If, however, there has been, as I think there was, a thing created by statute, call it what you will, an entity, a body, a near corporation, which, by statute, has, in certain respects, an existence apart from its members, then I do not see why that body should not be sued by one of its members for a breach of contract.”
6 [1901] A.C. 426. Lord Morton regards this case as the keystone of his opinion: “In my view, the Taff Vale case goes far to decide the question now before your Lordships' House” (p. 794).
7 See note 18.
8 Lord Morton and Lord Porter both find additional support for their view in the opinions of Uthwatt J. and Scott L.J. in National Union of General & Municipal Workers v. Gillian [1946] K.B. S1, especially in the judgment of Scott L.J. at pp. 84–85, where he says, of counsel's argument that a registered trade union is neither a natural person nor a corporation and therefore can have no existence, “that argument is, however, fallacious. There is a tertium quid. A trade union has many activities: it has some existence, and it is something.”
9 Lord Keith (at p. 815) says: “I think that the decisions of this House show that, in a sense, a registered trade union is a legal entity, but not that it is a legal entity distinguishable at any moment of time from the members of which it is at that time composed. It remains a voluntary association of individuals, but it is capable of suing and being sued in its registered name; … As an association, its membership is constantly changing, but as a registered trade union, it has a permanent identity and represents its members at any moment of time. It would not, I think, be wrong to call it a legal entity.” Later (at p. 817) he says: “Mr. Bonsor's contract of membership was a contract between himself and the other members of the union … it may be regarded also as a contract with the trade union, for the trade union, in its registered capacity, is representative of all the members. So long as this is kept in view, it is convenient to talk of a member's contract of membership as a contract with his trade union.” Lord Somervell (at p. 822) says of the rules which constitute the contract: “I would not, myself, construe them as having any other legal basis than a contractual one between members.”
10 pp. 800–815.
11 p. 810.
12 Particularly in the Taff Vale case; Osborne v. A.S.R.S. [1909] 1 Ch. 163 at p. 191; A.S.R.S. v. Osborne [1910] A.C. 87 at pp. 93 and 102.
13 In the Russian Bank Case [1936] A.C. 403, Lord Macmillan, speaking of a somewhat analogous anomaly, said: “A legal system which for so long admitted as suitors in its courts those wholly fictitious persons John Doc and Richard Roe … might be expected to suffer with equanimity the apparition, at the bidding of the Legislature, of a dissolved company as a plaintiff.”
14 [1954] 1 Ch. 479 at p. 513.
15 At p. 814. Lord Keith (at pp. 818–819) says, “If the expulsion takes place on the initiative of the union officials, it appears to me that it reduces the position to an absurdity to say that the officials were acting as the expelled member's agents in the matter of the expulsion.” Similarly Lord Somervell (at p. 822) considers that “it cannot be right to identify the plaintiff with those of whose acts, or of whose agents acts, he complains so as to deprive him of his ordinary remedies. If the union, in its registered name is the proper defendant for a declaration and injunction, it is the proper defendant also in a claim for damages.”
16 The headnote to the All England Report of the decision ([1955] 3 All E.R. 518) puts Lord Keith alongside Lord Morton and Lord Porter in their view that a registered trade union is a legal entity. It is suggested that this is wrong and that Lord Keith arrived at his decision by the arguments which found favour with Lord MacDermott and Lord Somervell.
17 Selected Essays, p. 224. Maitland would probably have considered Bonsor's case as supporting his view that our law “muddles along with semi-personality and demi-semi-personality towards convenient conclusions” (ibid., p. 237).
18 Trade Union Act, 1871, s. 3: “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 voidable, any agreement or trust.”
19 There has been much litigation on the meaning of the word “directly”; see Citrine, Trade Union Law, pp. 95–102.
20 Of the agreements which are then enumerated, the following are relevant to the point now being made: “(1) Any agreement between members of a trade union as such, concerning the conditions on which any members for the time being of such trade union shall or shall not sell their goods, transact business, employ or be employed; (2) any agreement for the payment by any person of any subscription or penalty to a trade union:” “(4) any agreement made between one trade union and another.”
1 See, for example, Swaine v. Wilson (1889) 24 Q.B.D. 252.Google Scholar This question has been dealt with in detail by Professor Kahn-Freund, “The Illegality of a Trade Union.” (1944) 7 M.L.R. 192.
2 Per Lord MacDermott at pp. 803, 812. Lord Keith (at p. 819) says that “a member of a registered trade union who has been damnified by breach of his contract of membership is entitled … to sue his union for damages, provided his claim is not struck at by any of the provisions of s. 4 of the Act of 1871.” The point seems to have been argued in Kelly's case, but Bankes L.J. said: “In the view I take of this case, it is not necessary to consider whether the plaintiff's claim for damages is met by the provisions of s. 4 of the Trade Union Act, 1871”: (1915) 113 L.T. 1055, 1058.
3 The most valuable treatment of the legal implications of these agreements is to be found in the writings of Professor Kahn-Freund to which I am much indebted: see his article “Collective Agreements under War Legislation,” 6 M.L.R. 112, and especially his chapter on “Legal Framework” in Flanders & Clegg, The System of Industrial Relations in Great Britain (Chap. 2).
4 It is important to observe that the statutory definition of a “trade union” embraces not only an association of workmen but also an association of employers which pursues any one or more of the statutory objects; Trade Union Act, 1913, s. 1 (2) and s. 2 (1). A trade union may be defined as any combination, whether temporary or permanent, for regulating the relations between workmen and masters, or between workmen and workmen 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. See Citrine, Trade Union Law, p. 296.
5 Flanders & Clegg, The System of Industrial Relations in Great Britain (Chap. 2 by Professor Kahn-Freund). He refers to three cases in which there are conflicting and not very clear dicta: Read v. Friendly Society of Stonemasons [1902] 2 K.B. 732, at 742Google Scholar; Smithies v. National Association of Operative Plasterers [1909] 1 K.B. 310 at 327, 337 and 340Google Scholar; and Young v. Canadian Northern Ry. [1931] A.C. 83 at 89.Google Scholar
6 Abbott v. Sullivan [1952] 1 K.B. 189Google Scholar, is an example of such a difficulty.
7 See, for example, Jones v. Vernons Pools, Ltd. [1938] 2 All E.R. 626Google Scholar; Appleson v. Littlewood [1939] 1 All E.R. 464Google Scholar; Rose & Frank v. Crompton [1925] A.C. 445.Google Scholar
8 See per Somervell, L.J. in Lee v. The Showmen's Guild of Great Britain [1952] 2 K.B. 329 at 341.Google Scholar
9 Compare the familiar provision of s. 40 of the Army Act, whereby a person subject to military law is punishable if guilty of “any act, conduct, disorder or neglect to the prejudice of good order and military discipline.”
10 Baker v. Jones [1954] 1 W.L.R.Google Scholar 1005 where Lynskey J. held that the proper interpretation of the rules themselves was a question of law and so could not be excluded from the jurisdiction of the courts. See also per Denning, L.J. in Lee v. Showmen's Guild of Great Britain [1952] 2 Q.B. 329 at 342.Google Scholar
11 Czarnikow v. Roth [1922] 2 K.B. 478 at 488–489Google Scholar; he goes on “without attempting precisely to define the limits within which an agreement not to take proceedings in the King's courts is unenforceable, I think an agreement to shut out the power of the King's courts to guide proceedings of inferior tribunals without legal training in matters of law before them is calculated to lead to erroneous administration of law, and therefore injustice, and should therefore not be recognised by the courts.” It is to be observed, however, that in neither of the two methods, suggested above, by which trade unions may protect themselves, does any “matter of law” arise.
12 Kahn-Freund, op. cit.