“TRADE DISPUTE” AND “INDUSTRIAL DISPUTE” IN BRITISH LABOUR LAW

Abstract

THE phrase "in contemplation or furtherance of a trade dispute" was first used in section 3 of the Conspiracy and Protection of Property Act 1875.Its initial and principal function, through this section and sections 1-3 of the Trade Disputes Act 1906, was to d e l i i t the area of industrial conflict in which criminal and civil liabilities developed during the nineteenth century in cases arising out of industrial conflict would not app1y.lThe Trade Disputes Act 1965 was passed to supplement this protection against legal restraint, and the "golden formula," as it became known, continued to afford such protection up to the time the provisions of the Industrial Relations Act 1971 came into force.In establishing a new framework for the legal regulation of industrial conflict, the Industrial Relations Act made extensive use of a new formula: "in contemplation or furtherance of an industrial dispute."* This " new formula " replaced the '' golden formula " of the Trade Disputes Acts.However, while the golden formula provided a protection against legal restraint, the new formula provided only a dividing line between subjection to the restraints of the economic torts* before the High Court, and subjection to those of unfair industrial practices * and in certain circumstances emergency procedures before the National Industrial Relations Court (N.I.R.C.).5The Trade Union and Labour Relations Acts 1974 and 1976 have repealed the Industrial Relations Act, and restored the protectiow of the Trade Disputes Acts in a revised form.The definition of trade 1 s. 4 of the 1906 Act provided a trade union with a defence to any action in tort.The definition of trade dispute in s. 5 (3) of the 1906 Act was applied to s. 3 of the 1875 Act.2The following provisions of the Act were all limited by reference to this phrase: the deflnitions of strike in s. 167 (1) and irregular industrial action short of a strike in s. 33 (4) (except for the purposes of s. 65 (8): s. 65 (11) 1; through these definitions, the application of the unfair industrial practices relating to industrial action over the issues on which the Act made specific provision in ss.13, 16 and 33, which concerned closed shops, union membership and unfair dismissal, and ss.54 and 55 which concerned recognition; through the definition of a strike the lawful character of a strike following due notice under s.147; the application of the unfair industrial practices in ss.96-98; the availability of the emergency procedures in ss.138-145; and the defences to the economic tort liabilities in s. 132.The deflnition of industrial dispute was in s. 167 (1).3 Also criminaI conspiracy since s. 3 of the 1875 Act was amended so that it was limited by reference to the new formula.4 The unfair industrial practices in s. 36, which concerned breach of a legally binding collective agreement, were the only ones.relevant in this context which were not limited by reference to the new formula.5 It was also important to determine where the line was drawn because trade unions registered under the 1971 Act and those acting within the scope of their authority on behalf of such unions were protected against both the main tort liabilities by s. 132 and complaints of the unfair industrial practices in ss.96 and 97, in respect of action taken within the new formula.'18 For a similar conclusion with respect to the definition in the 1906 Act see Kahn-Freund in Flanders & Clegg (eds.),The System of Zndustrial Relations in Great Britain (1954), p.

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