CHAPTER XX

TRADE UNIONS

Definition. The term Trade Union is commonly associated with combinations of manual workers, but this is not accurate either from a legal or a social standpoint. The essential factors of Trade Unionism are to be found amongst workers of all kinds, professional, commercial, and manual. By the essential factors of Trade Unionism is meant the establishment of a standard payment, and standard conditions of work by agreement between the persons who have to do the work. Thus barristers will not accept a fee under a guinea, and in litigious matters will only receive instructions from a solicitor. Recently the world has seen the medical profession combining to obtain under the National Insurance Act both a standard payment and standard conditions of employment. For many years fire insurance companies have maintained a common organisation in their Tariff Committee for the purpose of obtaining standard premiums for all ordinary risks. The penalties for non-observance of the common rule vary widely. Wealth and social position make a vast difference in the practical steps used to make combination effective. We do not expect to find barristers picketing' an Assize Court against an intruder from another circuit, or a Union workman refusing to meet a non-Union workman at a dinner-party. But behind the various forms of penalties for non-observance of the common rule there stands in the case of practically all kinds of workers the same desire for mutual protection. It is true that there is a legal difference in the position of some of these classes of workers.

So long as the common rule is founded on nothing more substantial than esprit de corps, social etiquette, or a common professional understanding, there is nothing tangible for the law to lay hold of, and there is no combination' in any legal sense. As soon as there is a definite combination of persons based on an expressed agreement we pass into the sphere of law, and can define a Trade Union in legal phraseology. The present definition of a Trade Union is contained in the Trade Union Amendment Act, 1876, and runs as follows: "The term "Trade Union' means 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, whether such combination would or would not, if the Principal Act (the Trade Union Act, 1871) had not been passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade." The latter part of this definition will require detailed explanation; the earlier part tells us plainly that in law a combination of masters is just as much a Trade Union as a combination of men. But it is doubtful whether the layman ever thinks of an employer's Association as a Trade Union.

A discussion of the merits and demerits of Trade Unionism does not fall within the scope of this book, but an impartial summing up of its effects may be helpful. The following quotation is from the Final Report of the Royal Commission on Labour which was issued in May 1894: "Powerful Trade Unions on the one side and powerful Associations of employers on the other have been the means of bringing together in conference the representatives of both classes, enabling each to appreciate the position of the other, and to understand the conditions subject to which their joint undertaking must be conducted. The mutual education hence arising has been carried so far that, as we have seen, it has been found possible to devise articles of agreement regulating wages, which have been loyally and peacefully maintained for long periods. We see reason to believe that in this way the

course of events is tending towards a more settled and pacific period, in which in such industries there will be, if not a greater identification of interest, at least a clearer perception of the principles which must regulate the division of the proceeds of each industry, consistently with its permanence and prosperity, between those who supply labour and those who supply managing ability and capital." To some extent this expectation of industrial peace has gone the way of expectations of other forms of peace, but the passage quoted in substance remains true.

'Restraint of Trade' and 'Conspiracy.'-To understand legislation on Trade Unions and strikes 1 it is necessary to grasp the Common Law doctrines as to 'restraint of trade' and conspiracy.' We have already seen (at p. 13) that the legislation of 1825 allowed workmen to discuss wages and hours, but if they took any steps in combination to give effect to any agreement arrived at as a result of such discussion, then they had no statutory protection and were liable to any penalties imposed on them by the Common Law, and in addition were conceivably liable to be punished for two statutory offences, viz. molestation and obstruction. We must, therefore, consider somewhat closely what is involved in these Common Law doctrines of restraint of trade and conspiracy.

It has already been stated (p. 11) that in England a restraint of trade is regarded as against public policy and, therefore, illegal. The welfare of the community is supposed to be dependent on each individual being free to exercise his skill and strength in earning a livelihood in any lawful way. Thus suppose a wealthy man were to have as a hobby the promotion of handicraft as against machine labour, and in pursuance of his object he were to promise 1000 men working at machinery £5 apiece in return for their promises never to work at machines again. The promise on the part of the men would be invalid as in restraint of the future exercise of their skill. So an agreement between two or more men not to work for less than 6d. an hour would be an illegal agreement, and the law would not enforce it, because it

1 A statutory definition of the terms strike' and 'lock-out' will be found at p. 333.

would restrain the men's freedom to sell their labour at any price they chose. As we have already seen (p. 44), there are certain exceptions to this rule, based on contracts of service in which the service has come to an end. There are also exceptions in favour of the purchaser of the goodwill of a business.

It does not seem to have occurred to the expounders of the Common Law that an agreement by workers not to sell their labour under a reasonable minimum might conceivably be an agreement promoting the public welfare. It would be interesting to test in the Law Courts whether an agreement to enforce a minimum wage could now be regarded apart from Trade Union legislation as against public policy, seeing that in certain trades a minimum wage has been established by a Statute based on the principle that very low wages are against the public welfare. But this discussion need not be pursued, as it is clear that the Common Law as hitherto expounded by the Courts holds that, in general, agreements in restraint of trade are unlawful, and that combinations of persons to carry out purposes which are in restraint of trade are ipso facto unlawful combinations. This makes intelligible the inclusion, in the legal definition of a Trade Union, of combinations "for imposing restrictive conditions on the conduct of any trade or business, whether such combination would or would not, if the Trade Union Act, 1871, had not been passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade."

The Common Law doctrine as to restraints on trade is intelligible, and its connexion with the school of economic thought associated with Adam Smith is obvious; when we pass to consider the Common Law doctrine of conspiracy we approach a subject much more subtle. Let us take an illustration. A can resolve not to sell his labour under 10ld. per hour, and this may be regarded as a virtuous action on his part as an assertion of individual liberty. B can make the same resolve. Both can separately act on their resolution. If, however, A and B agree together to act on the resolution they have arrived at, A has in a sense put a

restraint on B's liberty, and B has put a restraint on A's liberty, and in the view of the law their united action is an illegal conspiracy, for a restraint of trade is itself illegal. Now a person who takes part in an illegal conspiracy is subject to two consequences. He is guilty of a criminal act, for which he can be punished as a criminal. Further, if his illegality is directed against a particular master, who can show that he has thereby suffered damage, that master can maintain against the wrong-doer an action for damages, and can have the wrong-doer restrained by injunction from continuing his unlawful proceedings. We shall see that at first it was the criminal consequences which absorbed attention, and that for the time being the civil consequences were overlooked.

The example that has been given above is based on an agreement which on the face of it is in restraint of trade; but the law of conspiracy is not confined to questions of restraint of trade, but has a very vague and indefinite scope. In a careful and impartial text-book the legal position has been summed up in this sentence: "In respect of sedition, conspiracy, and libel . . . in truth there never had been any such laws beyond a sort of understanding that a judge and jury between them might punish, under one or other of those names, any conduct which they might consider injurious to the public interest." In the case of conspiracy, it is of course understood that the conduct has been agreed upon by two or more persons.

For a further discussion of the law of industrial conspiracy reference may be made to Chapter V. of Jevon's The State in Relation to Labour, from which the following sentence is taken: "Until quite recent years the Common Law gave power to the judges, or they at any rate assumed the power, to treat any combination of labourers aiming at the increase of wages as a conspiracy against the public weal, an attempt at public mischief, which could be punished as a misdemeanour by fine and imprisonment."

Trade Union Act, 1871.-The object of Trade Union legislation has been to reverse a series of decisions based on the Common Law.