The Role of Labour Courts"

Transcription

1 The Role of Labour Courts" By Sir John Donaldson WRITING in the December 1974 issue of the Industrial Law Journal Norman Lewis said: " The President of the National Industrial Relations Court (NXR.C) remained seemingly unrepentant until the bitter end." * I can bring him up to date. Not only do I continue to seem unrepentant, but I am and always have been. Don't misunderstand me. There is no doubt at all that I made mistakes. But if you are involved in an entirely new enterprise and you don't make mistakes, you don't make anything. So I am quite unrepentant. But I am sorry sorry that we never had a chance to see what the court could do administering a quite different Act Using hindsight, it would have been better if the court had been set up under a separate Act an Administration of Justice (Labour Court) Act This would have made it clear that the court was one thing and the law which it administered was quite another. And this distinction is of fundamental importance. The other day I was talking to the Newspaper Society and it occurred to me that there was some analogy between the court and the printing press. If the press is slow, inefficient, expensive or produces an illegible product, you change the press. But you do not throw it out because you dislike what you read. I and my colleagues were responsible for the press. Parliament provided the copy. And although I may fairly be accused of having done some occasional sub-editing, I had no power to re-write it tempted though I often was. From a technical point of view, there was no point in abolishing the court Appeals from industrial tribunals had to be heard by some court and this had provided 70 per cent of the N.LR.G'8 work. It could have been retained, as could all those parts of the 1971 Act which have been reenacted. But do not misunderstand me. I am not criticising the Government or Parliament The decision was political. It no doubt took account of a large number of psychological and other factors, which outweigh the disadvantages from a technical point of view. I am not concerned to put the clock back. My concern is with the future. The improvement of industrial relations is one of the biggest problems facing the nation today perhaps the most important of all. It is not a matter which should be dismissed by saying " leave it to the experts " or " leave it to the politicians " or whatever. It is a problem which everyone should be thinking about and discussing. We are all involved and we all have a contribution to make. My purpose this evening is to contribute some thoughts in die hope of stimulating that debate. * The text of an address dchvered at the Annual General Meeting of the Industrial Law Sodety, March 20, i 0974) 3 LLJ

2 64 Sir John Donaldson Let us look first at the position of the individual worker vis-a-vis management His rights and duties stem from his contract of employment and statute law of various kinds. For over a decade the industrial tribunals have been dealing with the problem of disputes as to basic contractual terms under the Contracts of Employment Act jurisdiction. For a decade they have been determining disputes as to redundancy. For four years they have been concerned with compensation for unfair dismissal. This is a formidable workload and it will not get any less. Problems of equal pay and sex discrimination are in the offing and it would be natural if they too were referred to industrial tribunals. They have proved a great success. In theory the combination of worker and management members with a legally qualified chairman could have been a recipe for discord, leaving the decision to the lawyer. In practice this has never occurred. Certainly there have been majority decisions, but it was at least as likely that the worker member would support the employer in the dispute and the employer member the worker, as vice versa. And the combination of the lay members to out-vote the lawyer chairman is very far from unknown. In a word this has proved to be an essentially judicial tribunal fair and independent But it is much more than this. It is a highly informed tribunal informed as to the trade, informed as to relationships in the work place and informed as to local problems and prejudices. It is in fact a natural, but improved, development from that most British of institutions south of the border that is the lay magistracy. I am not particularly concerned with whether they are known as courts or tribunals, although I think that local labour courts would be a more accurate description. But I am concerned that workers should not be expected to go to different courts or tribunals for help with different, but closely related, problems. Thus the worker who is dismissed may have a claim for redundancy money, compensation for unfair dismissal, arrears of wages, expenses and holiday money. For the first two he has to go to an industrial tribunal. For the last three to the county court This, as the N.LR.C. kept pointing out, is a nonsense. Section 113 of the 1971 Act empowered the Secretary of State to extend the jurisdiction of the tribunals to all claims for damages for breach of the contract of employment Inexplicably the power was never exercised. The Trade Union and Labour Relations Act 1974, equally inexplicably, never re-enacted this power. The Government has now said that a similar power will be included in the Employment Protection Bill. I sincerely hope that this happens and that the power is exercised. But I should like to go further. There are a great variety of problems which affect the individual worker. His working conditions may be unsafe or unnecessarily uncomfortable. He may have awkward or unreasonable rest periods. His foreman may be unreasonable. He may consider

3 The Role of Labour Courts 65 that he has been unfairly rostered for duty at unsociable times or that he has not been properly considered for promotion. All these are matters which sour industrial relations. His trade union, if he has one, may be able to help him. But its only sanction is industrial action. What he, and the union, really need is an independent outside body to which he and they can resort as an aid to settling individual complaints. The industrial tribunal, or local labour court, is a natural for the job. The mere fact that a grievance can be ventilated before such a body will often remove it, particularly if it is based upon a misunderstanding. And if it is found to have substance, most employers will put it right particularly if the tribunal has power to make orders requiring the grievance to be remedied. Now it may be said that these matters are not justiciable. I do not agree. If we must keep to the traditional legal categories, most would be found to be breaches of terms which an imaginative labour court would readily imply in the contract of employment But why use the common law tool for extending and modernising the law, if Parliament is legislating anyway and it can be included in the statute? All that is required is that the industrial tribunal shall have adequate powers. First it needs power to investigate any allegation by an individual employee that he is adversely affected by die acts or omissions of management which are unreasonable or not in accordance with accepted industrial relations practice. Secondly, it needs power to grant the employee relief by way of damages or injunction. This jurisdiction would not be in substitution for the right of the trade union to take industrial action in support of a member. It would give the union additional strength when its member had a justifiable complaint and would be likely to render industrial action unnecessary. But before leaving relations between an individual worker and management, I should like to make a plea for two further reforms. The first relates to the Advisory Conciliation and Arbitration Service. At present they are automatically involved if, but only if, there is a claim for compensation for unfair dismissal. I should like to see them brought in as soon as any claim is made to an industrial tribunal And the wider the jurisdiction of the tribunal, the more important this will become. Furthermore I should like to see this work handled by specialist officers of the service, who understand the working and jurisdiction of the tribunals. The basis for a settlement will inevitably be what view the tribunal is likely to take. Conciliation officers cannot do the job if they are not experts at making this prediction. The second concerns the position of a trade union when one of its members claims that he has been victimised for trade union activities. The man himself may well have a good claim for damages, but this will not help the union. No self-respecting union can leave it at that It must assert its power to protect those who work on its behalf. And the only

4 66 Sir John Donaldson way in which it can do so at present is by taking, or threatening to take, industrial action. I would like to see the union given a sensible alternative. In such cases the union itself should be given a cause of action against the employer and be able to claim exemplary damages from an industrial tribunal. If this were done, there would be no need for industrial action. But safeguards for a worker vis-d-vis his employer may not be enough What about safeguards in relation to trade unions? I welcome the change in the law which permits closed shops. But this vastly increases the power of the union over the individual. And, as the Donovan Commission pointed out, although abuse of power is unlikely to be widespread, it does happen. This is not a criticism of the unions. It stems from human nature itself. The real danger does not come.from the union or its officers at national or even regional level. It comes at local level There, clashes of personality and vested interests can create a situation of near tyranny. If individual freedom means anything, some effective safeguard must be provided. And not only must it be effective. It must be seen to be both effective and wholly independent The Donovan Commission recommended the establishment of an independent review body consisting of two trade union members sitting with a legally qualified chairman. This must be right in principle. But why do we have to have all these ad hoc bodies? Surely it would be much better to use the industrial tribunals? They have panels of trade union members. Why should the chairman not sit with two such members for this type of work? Of course any tribunal would need guidelines. A portable palm tree is not enough. These guidelines could be provided by statute, by statutory instrument, by a code approved by Parliament or by union rules. My preference would be for union rules, but only if means could be found for ensuring that they all provided minimum safeguards. This is difficult Many unions are emotionally attached to their rules and would resist any change. Others have complicated provisions which make change difficult A possible solution would be for Parliament to provide model rules which overrode the actual rules to the extent of any inconsistency, but no further. This has been done in the case of contracts for sea and air carriage and has worked well. But I am inclined to think that a code of members' rights, made by the Secretary of State in consultation with the T.U.C, and approved by Parliament is the best solution. If the rights contained in this code were paramount the content of union rules would cease to be a matter of public concern. May I now turn to relations between employers and trade unions. The problems fall into two groups. Recognition disputes and other disputes. On recognition disputes, current thinking seems to be that these should be resolved by the Advisory Conciliation and Arbitration Service. The

5 The Role of Labour Courts 67 Service will make inquiries, try to get an agreed solution and, if that fails, come up with recommendations. Thus far it is the 1971 Act system. Thereafter there is a difference. If the employer will not accept the recommendation, the union which is recommended for recognition can claim arbitration. However, this arbitration is not on the issue of recognition, but on the terms and conditions of service of the employees. This is without doubt an intractable problem. There is a minority of employers who are conducting a rearguard action against any increased unionisation. But at least as much trouble is caused by competition between unions for the exclusive right of recognition by a particular employer. Further complications are introduced by the fact that some unions are members of the T.U.C and some are not, whilst the qualifications of some organisations claiming to be independent trade unions are, to say the least, dubious. Unions and employers sometimes appear to regard recognition as a private domestic problem. But of course h is not It gives rise to the bitterest of disputes and to long running industrial action. This affects the public as consumers, as anyone who waited for their films to be processed by Kodak will know full wdl It also affects the economy of the nation. Some sane solution must therefore be found. It remains to be seen how the latest idea will work out The weaknesses, as I see it, are that there is no power to compel recognition and the A.CA-S. has been given no guidelines. Here again a portable palm tree just will not do. Of course it may evolve guidelines of its own, but this will be of limited value if they are not published for the benefit of those who face recognition problems. It is also for consideration whether Parliament ought not to have a say in what those guidelines should be. And what of other types of disputes? For a century, unions, employers and politicians of all parties have been agreed. Free collective bargaining is the answer. Maintain a balance of power between management and labour and a fair and equitable solution will emerge. This was the philosophy of the Industrial Relations Act This was the philosophy before This is still the philosophy today. The only difference of opinion is as to what constitutes a proper balance of power. But no one could claim that it is a great success. Collective bargaining is fine, so long as the bargaining continues. But sometimes deadlock is reached. Then it becomes collective blackmail by one side or the other. Surely it is at this point that the public is entitled to protest Both sides of industry regard industrial disputes as a private matter. So perhaps does the A.CAS. whose members are drawn from both sides of industry. But they are not The public as consumers are a party to nearly every dispute. They have no industrial power and no one without either industrial or legal power gets a look in. The public are just expected to grin and bear the consequences. What is the answer?

6 68 Sir John Donaldson Two four-letter words describe our system for solving industrial disputes self help. But this was abandoned centuries ago in most other fields of human relations. Instead we have guidelines, which we call the law, we have independent inquiries, arbitrations and the courts. Are industrial relations really so different? I don't think that they are. There is more to most industrial claims than a mere attempt to obtain an advantage by brute force. There are strongly felt grievances. They may or may not have a basis in fact, but they are real enough to those involved. Surely we, the public, should be providing machinery for investigating them. Real grievances should be remedied. Imaginary grievances should be shown to be unreal. If the machinery was effective and there is no reason why it should not be it would soon be preferred to the bloodymindedness of industrial action. The Industrial Court was given the task of curbing industrial action. This was a mistake. Its true role was to investigate the grievances, report to the public and recommend and, if necessary, enforce solutions. No doubt it will be objected that disputes of interest are not justiciable. I disagree. The courts are concerned everyday with what is and what is not reasonable in all the circumstances. It is true that they draw back when asked to make a new bargain between the parties. But there is no reason why they should. Arbitrators often make awards where the parties have said that something shall be agreed " or in default of agreement settled by arbitration." Only the other day in the Commercial Court I was asked to try the first part of a case as a judge and then, if it was necessary to make an agreement for the parties, to do so sitting as an arbitrator. There is nothing that an arbitrator can do that a specialised labour court cannot do better. I say this because it would have greater independence and greater experience. I can think of few current industrial disputes for which such a court could do nothing and in many of them it might be able to find a fair, reasonable and acceptable answer. One of the great contributions which a court can make is to substitute logic and reason for threat and fear. But of course we shall not achieve such an improved system overnight Bat my purpose today is simply to suggest a way forward and to stimulate discussion. This I hope that I have done. Now it is up to you.