Current Law and Social Problems, Volume III 9781487577742

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CURRENT LAW AND SOCIAL PROBLEMS Volume III

EDITORIAL COMMITTEE THE HON. I. C. RAND, Q.C., LL.D., Chairman D. M. JOHNSTON, M.A., LL.B., LL.M. R. s. MACKAY, B.A., LL.M.

E. E. PALMER, M.A., LL.B., LL.M. A. A. FATOUROS, U.DIPL., M.C.L., LL.M.

Volumes I and II, edited by R. ST. J. MACDONALD, 1960, 1961

CURRENT LAW AND SOCIAL PROBLEMS

The Universe is change Our life is what our thoughts make it

Volume III Editor:

E. E. PALMER The University of Western Ontario Faculty of Law Published by University of Toronto Press

Copyright, Canada, 1963 by University of Toronto Press Printed in Canada Reprinted in 2018 ISBN 978-1-4875-7877-0 (paper)

Editor's N.ote THIS IS the third volume in a series founded by the Faculty of Law in the University of Western Ontario and the first under the present editor. It is also the first volume which has, to a great extent, been devoted to a single topic-labour law. It is to be pointed out, however, that the Editorial Committee still adheres to the objectives set out in our initial number by the previous editor, Professor R. St. J. Macdonald, whose efforts were so instrumental in the creation of this series: The primary object of the series is to promote collaboration between lawyers, social scientists, juristic philosophers, and others who are interested in exploring social values, processes, and institutions. The Editorial Committee will welcome papers, however experimental, on public law and public aspects of private law, jurisprudence and associated philosophy, social and behavioural science, constitutionalism, administration, and juridical international questions, and they look forward to contributions from other countries so as to present a variety of ideas relevant to significant legal problems of the day. A cognate object of the series is to invite discussion of contemporary problems by specialists in different fields whose research may be integrated to present broader aspects of those problems....

It is planned that future issues of CURRENT LAw AND SocIAL PROBLEMS will be devoted largely to single themes. Thus, next year the Editorial Committee has decided to examine issues pertaining to the family and will welcome contributions from interested scholars. Correspondence should be addressed to the Editor at the University of Western Ontario, London, Canada.

Contents Editor's Note

V

The Law and Industrialism

By1.c.RAND

3

Jurisdictional Disputes in Canada: A Study in Frustration By J. H. G. CRISPO and H . w. ARTHURS

14

The Drift towards a British National Wages Policy By w. F. FRANK

61

Labour Legislation in the Province of Quebec

By MARIE-LOUIS BEAULIEU

101

Peaceful Picketing and the Criminal Code

By R. s. MACKAY

114

Conciliation Boards in British Columbia

By RAYMOND G. HERBERT

130

The International Law of Fisheries: A Policy-Oriented Inquiry in Outline (concluded)

By D. M. JOHNSTON

146

CURRENT LAW AND SOCIAL PROBLEMS Volume III

Cfhe Law and Industrialism By I. C. RAND•

is the operating principle in the generation of order in a social body; interpenetrating human action, it becomes an invisible system of co-ordinated precepts, principles, and standards regulating conduct, established by custom or edict, behind which lie coercive and punitive sanctions of society. Its end is the attainment of a generalized harmony and security in the life of the community, the elimination of intolerable frictions in the conflicts of interest, and the reconciliation of those conflicts by acceptable limitations on individual and community action. It is a structure of infinite figure and design wrought by the experience of centuries, attesting the workings of reason and compromise, and exhibiting the elaboration of basic assumptions of the nature of man, his endowment, and the purposes of life. How these assumptions are conceived, whether inherent as law affecting Man as part of nature or as constituting the necessary attributes of Man in relation to or upon which human law operates, Man as the unit of expression of consciousness and will, Man wholly conceived, does not make material difference in the impact of positive law. Subsidiary assumptions may affect the content of conduct regulated or admonished; but from the standpoint of that law, the formal patterns of legal statement and application in either case do not substantially differ. Whatever may have been the biological, psychic, or other processes through which Man has reached his present condition, these assumptions ascribe to him a primary individuality, an organization of body and mind to be realized in expressions of each, and HUMAN LAW

"I. C. Rand, Q.C., B.A., LL.B., D.C.L., LL.D., Dean of the Faculty of Law of the University of Western Ontario. This paper is the text of an address given on September 15, 1962, at the Regional Social Life Conference held at Assumption University of Windsor. CURRENT

LAw AND SocIAL PROBLEMS, Vol. III, 1963

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an equally primary social implication necessitating by its nature limitations of and restraints upon individual action. Within these limitations evolves the culture of the group, the accomplishments of our physical, intellectual, ethical, esthetic, and spiritual faculties. The justification as well as the necessity for regulation of individual action is its impact on the lives of others: voluntary or selfregulation is not adequate; the qualities of cupidity, greed, acquisitiveness, passion, aggression, and arrogance remain at high pressure, and so far their control must be committed to the judgment of the community. Thus the system of governing ideas emerges through the nature of Man and his modes of manifesting himself. Industry concerned with Man's struggle with his environment and its conquest through applied intelligence has brought us to the heights of material achievement: we can say in fact that in the course of time man's understanding will have left little unconquered. But its course to this day has exposed a vast complex of relations in which it has inextricably involved Man through the diverse forces generated and the degree to which other interests and concerns have become subordinated to it. With only certain of these relations are we dealing directly in this enquiry, but a glance at the general topic of our attitude towards industrialism may not be irrelevant. Let us put to ourselves a few questions. Is material production to be accepted as the significant end of human effort and purpose? Are we to attribute to it and its products the supreme values of life? Can it be said, in any acceptable sense, that it is more than a contributory agency to the developing life out of which it has arisen? Are we, in our estimations of worth, to substitute the product of factories for the attainment of that maturity in which the individual sees life "steadily and whole," an attainment which alone, I think, can give abiding acceptances to our deepest interrogations? Without overstressing these queries, we may ask whether such a substitution, if indeed possible to man, would not tend to his own extinction? In his engagement with environment Man fashions the latter into accommodations of his needs and desires, adaptations creating a setting in which his life thereafter becomes progressively impli-

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cated. In its more concrete sense, Industry signifies the production of means to sense satisfactions, enabling generally the mastery of instruments serviceable to infinite modes of activity. These means in tum become the source of wealth, as we call their accumulation, to glut that instinct which originally sought security against nature's rigours and vagaries, but now driving to the aggregation of power over Man and Community. Inevitably, in its expanding accomplishments, Industry becomes a system of processes sustaining communities organized in dependence on them. Differentiated functions have led to a vital interdependence between the two, dislocations of which can in varying degrees be disruptive of the life of each. These processes in proliferating populations and huge economic accumulations, expressing the gigantic expansion of technology, are intensifying in tremendous acceleration and raising issues over-taxing the wit of man to resolve. The near anarchy to which this development has given rise by reason of its own crises from self-defeating defects, furnishes a new situation of demand for order and the means of order, law. Excesses must be curbed; the savage claims of interests modified; social order and well-being must advance through the imposition by law of enlightened ideas upon the warring groups, creating effective restraints upon their modes of action. Western society has now reached the stage of general awareness at which a sufficient number of persons in a political unit are available to halt the progress of practices which have become intolerable in their violation of that indefinite standard called fairness or reasonableness. As the most formidable task ever undertaken consciously by Man, we have put before ourselves the spiritual, moral, and material advancement not only of races and classes but of all human beings. We have recognized as never before, however qualified it may be, that man is his brother's keeper. We see applied in social action, as never before, the Categorical Imperative as the decisive factor in the solution of social problems; but that rule without the background of coercive sanctions within a legal order is not yet sufficient to its realization; and for the excesses of conduct that deface human relations, regulation by law becomes obligatory.

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Industry originated in individual enterprise but it has become transmuted into private enterprise. This latter in its present character can be said to have had its modem origin in the creation by law of the limited liability company; and, as an entity, that corporate body has had attributed to it, generally, the civil incidents of citizenship. But the difference between the two modes of enterprise must be-as it has not been-clearly appreciated: through limited liability a company consists essentially of an aggregation of property placed under operators for effective utilization. We see from daily observation the magnitude of economic power which this device has now made possible. The public effect in the latest phases of industrialism is not confined to matters of combinations and monopolies; these and other objectionable practices now in the early stages of regulation are well known and need not be elaborated, nor the unregulated factors of internal and international trade with most of which we have, within the last few months, become oppressively familiar. What is new and important is the degree to which the products of industry are becoming the material structure of our entire society; in the interdependence between industrial factors and everyday living, through specialization of production, community life proceeds on the basis of an orderly continuity in the furnishing of industry's created necessities and conveniences; and it is in the field of labour relations that disruption of that continuity finds a substantial part of its cause. The history of employment exhibits many phases. Slavery of the conquered lay at the foundation of the Greek and Roman civilizations. England for a century or more after the Norman conquest possessed slaves, serfs, and villeins. Gradually these gradations became attenuated: slavery and serfdom disappeared, and villeinage became transmuted into the lowest ranks of feudal vassalage, the leaseholders and copyholders. In 1348 occurred the Great Plague which wiped out about half of the working class. Manual services became the market demand and the workers rose to answer in orthodox competitive manner: they sought higher wages. Promptly the landlords moved to meet this threat to the settled system, its

nm LAW AND INDUSTRIALISM/ 7 existing wage level, and its settled social stratification; in 1349 the Ordinance of Labourers was passed and two excerpts from its provisions will indicate its general tenor: Because a great part of the people, and especially of the workmen and servants, has now died in this plague, some, seeing the necessity of the masters and the scarcity of servants, will not serve unless they receive excessive wages, and others preferring to live in idleness rather than to seek their livelihood by labour,

it was decreed that We, by the unanimous counsel of our prelates and nobles, have thought to ordain that every man and woman of our Realm ( with certain exceptions) shall be bound to serve and receive wages as in the twentieth year of our reign or in the fifth or sixth years last preceding.

During the following centuries wages came under the jurisdiction of justices of the peace. Agreements between workers dealing with wages and conditions of work, from the seventeenth to the nineteenth centuries, were treated as conspiracies in restraint of trade and, as such, criminal. These and other shackles upon the free action of workers reached their apogee about 1800. But the social assertions of the masses of England were by this time taking on new vigour and in 1825 the first substantial statutory modifications came into force. This was followed, in the seventies, by further concessions to labour organization and collective action and in 1906 the last vital enactment appeared. The latter half of the nineteenth century saw, also, the enactment of various factory acts, and the elimination of some of the worst of employment conditions. From that point, we can pass to the labour situation as it developed in Canada. The same basic assumptions as in England and the United States underlay our industrialism: in the conception of individualism each party, the employer and employee, negotiated as man with man and no terms were beyond the valid confines of contract. In the seventies labour organization made its appearance and it originated at a time when the gigantic struggle for labour's recognition in its throes in the United States could be observed in significant detail. Difficult stages marked its course in Canada as

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elsewhere; and in the first decade of this century the strike of trainmen on the Grand Trunk Railway brought eastern Canada face to face with ugly features of the conflict. One of the significant steps toward social justice to employees was the legislative acceptance of the principle that claims arising from accidents in industry were essentially matters for administrative adjustment and not subjects for the expensive and relatively technical procedure of courts of law. In the meantime the rule of the assumption of the risk of a fellow servant's negligence had also been abolished; and that applicable to safe working conditions had been developed more in conformity with realities than as originally laid down. Following the Second World War labour relations acts throughout the Dominion, both federal and provincial, came into force: they deal with the mechanics or procedure of negotiation with employers on the terms and conditions of work. They compel "bargaining" and suspend the right of strike pending the conclusion of these procedural steps, including conciliation and arbitration. The right to organize in unions and the right to strike have been established, and the Criminal Code has removed collective action from the scope of conspiracy in restraint of trade. These measures have in many cases been supplemented by legislation for unemployment insurance, minimum wages, maximum hours of labour, and other ameliorative enactments. Six hundred years of struggle have won these rights and privileges; they clothe Labour with substantially as ample freedom of formal action as human laws, short of virtual anarchy, can provide. They create conditions in which society is entitled to look for and require the observance of law in their exercise. But the strike on both sides is still too often accompanied by atavistic crudeness, although there are signs that its waste and other disruptive incidents are becoming more fully appreciated. In this field as in others we find the tyranny of shibboleths: "this is a competitive society"; "no surrender of the rights to strike"; "no compulsory arbitration"; "private enterprise"; and many others. What is not realized is that much of the substance underlying these

mE LAW AND INDUSTRIALISM/ 9

expressions is of a relative character. Would a strike or refusal of duty be tolerated in the military forces? in the police forces? or in vital governmental services? What would be thought of such action on the part of all judicial officers in the Dominion? The considerations underlying the suspension of such functions have analogies in all occupations and professions and in each case we must reach a conclusion on the total factors in the particular situation. What are we to say of a general strike such as took place in England in 1926? The blow is received by the general public in the strangulation of national life through the disruption of the functioning of what have become necessary social instrumentalities. There is here, I think, the clue to the distinction we must make between strikes, certainly as they were first conceived as involving only the employer, and cessations of functions upon which the public, in a broad sense, has become dependent. Can units of industry be brought within the bounds of that area? Does a particular situation of conflict enable us to say that its elements are immediately significant of grave injury to a community through there being no alternative means of sustaining vital features of its life? The massive concentrations of industrial power with prodigious productive capacity have in fact become instruments of functions now largely constituting the structure of our civilization; highly specialized and differentiated, they are now integrated with the social organism. It is their exclusiveness in performance which enables its cessation to leave the public helpless. In ordinary or smaller industrial conflicts what is at stake is the individual industry for the loss of which to the public adequate compensating alternatives are at hand; but with the expanding amalgamation in industry, the multiplying population, and the spread of unionism, the public is steadily becoming more deeply victimized by both parties to the struggle. Con5ider the expression "private enterprise." What are we to say of that as a conclusive ideological counter in the presence of public railways-largely a monument to the failure of private enterprise in transportation-public electric power, postal communication, com-

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munity water supply, industries such as Polymer at Samia which private enterprise declined to undertake, radio, television, air services, the latter of which and radar attained their amazing development as instruments of war paid for by the taxpayers? In such a cry there is no mention of public assistance in the forms of bonuses, subsidies, tax concessions and exemptions, capital advances, low interest rates, expert governmental assistance as in trade commissioners, research, natural resource surveys, tariffs, and other analogous measures. The objection to the ceaseless repetition of these stereotyped phrases is that they confuse the thinking required for the solution of difficult social problems. What we are short on these days are creative ideas to meet the new conditions and forms into which society is evolving; and the enemy of effective ideas is the tiresome platitudinous catch-phrase which in the particular case has lost much of relevance and meaning. When, therefore, action dealing with compulsory arbitration, public industrial undertakings, limitations on industrial expansion, or the like is proposed, let the questions be debated on their merits in intellectual freedom and not distorted by these senseless obstructions to intelligent pragmatic judgment. In a field of action where there are no adequate competitors or alternative means, and the function is public and important, whatever the issue, a new situation is presented the solution of which must be the subject of a new judgment on the new totality of factors: and the irrational blaring of the battle-cry exhibits it as the misleading shibboleth it can be. There are now technical procedures for the determination of formal features of contentious labour relations in industry; they have become well settled; they perform an effective service in securing an orderly and acceptable administration of the formalities of negotiation. But they are secondary and subordinate. The great issue, becoming clearer each day, is that of remuneration; and in private industry it is simply one segment of the general problem of society, that of distributing the total national production. What is done in industry is becoming the claimed basis for governmental action; and the process at work, clamorous and insistent, calls for

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deeper examination than has yet been accorded it. In industry we have the established categories such as dividends, wages, depreciation, and the others, but between them there is no established relation, no rational basis according to which the dollar earned is to be divided. Wages originally assumed a pool of unemployed workers and the technique used in fixing remuneration can be easily imagined. But instead of that pool, we have today an organized countervailing labour power which must be dealt with. It would not seem to be beyond, I think it ridiculous to say it is beyond, the intelligence of men to produce empirical formulas of distribution applicable to unite or even classes of industry. In many cases profit sharing has already been instituted and successfully. Such a measure can be mentioned here only as a possibility: but an accomplishment of that nature may have been implied in Lord Keynes's remark to the effect that it will be a relief when we get rid of this economic turmoil and give ourselves over to the real purposes of living: or is the vision of such a future a mirage? It would admittedly take some of the gamble out of business but we could open all doors to the sweepstakes. The usual accompaniments of strikes, personal violence, destruction of property, obstructions of all kinds, picketing, boycotts, inescapable in the early stages, are part of the residue, the irrationality, of barbarism waged against entrenched property, analogous to fighting over the division of the spoils. But our granite-like conceptions of property and private enterprise on one side and the demand on the part of labour for an easier and fuller life, greater sharing of material means, more of equality, social and economic, for the working classes, make them at present inevitable. They are, in general, breaches of law, but with features of a reluctant civil war and consequently difficult to deal with. The conflict presents the old issue for its solution: reason or force, which shall it be? The only answer to this is the same as in the settlement of the generality of quarrels: it must be reason, if necessary enforced by law; and that means new ideas and modified conceptions. Another item deserves mention; the steps to be taken to authorize a strike. The lightness with which many of these steps are entered

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upon indicates an irresponsibility both of leadership and of workers; and even when approval is sought the means taken are at times a travesty of the processes of democracy. Where the public interest is directly involved, the free and deliberate judgment of a substantial majority of workers to resort to a strike calls for the most serious examination by the public itself of the questions involved. Ultimately the verdict of public opinion will prevail, for which the fullest public exposure of the issues, in understandable terms, is essential. But the preliminary condition, the vote, is one to be obtained as all such votes should be: by the exercise of an absolutely free mind and will. That means only one thing: the secret ballot. Nothing in this country can justify anything short of that; and any insistence to the contrary is the repudiation of a democratic principle underlying our society by men who will not tolerate dissent; it is an insult to the democratic order of things. The present industrial evolution taking place seems designed to bring about more rational and effective treatment of these matters. Through automation the labour force is steadily being depleted in its older groupings, manual labourers, craftsmen, and the different levels of operators. Unionized groups by no means constitute the bulk of the men and women who carry on the work of the country. There are vast numbers of employed persons who remain out of labour organizations largely because of the objectionable methods resorted to in disputes. They are today calling for compulsory arbitration-one of the demands made by the Trades and Labor Congress at its convention in Winnipeg in 1898. This is the alternative to which reason points: and a submission to public opinion, for these purposes the highest resort available, can, in substance, be realized by procedures and tribunals worked out by patient intelligent thinking. A broader social culture would conceive at least much of industry in terms of social function but with the diffusion of control and direction much as it is today in England and as it may be soon in North America. Involved is a change of attitude, a deeper sense of one's obligation and responsibility to the society which secures the conditions under which industry is carried on in freedom. Rewards

ms LAW AND INDUSTRIALISM/ 13 will continue, but, as education advances and standards of value change, on a more equalized scale; the intellect which is extracting the secrets of nature from the infinitely small to the infinite immensities, will not ultimately tolerate this barbarous scrimmage for things which have no real value in themselves and exist only for the use of man; and unless in the meantime we destroy ourselves, we may reach the level at which leadership in realizing the acceptance of such a philosophy will be accounted the highest secular accomplishment. Notwithstanding the advances of order in Western civilization over the past several centuries, we cannot dispense with the disciplinary regulation by law touching activities in society. The evidence in fact seems to be that only by constant affirmation and observance of standards of conduct can deterioration, possible even in a generation, be avoided. In no sector of our social, political, or economic life can we exempt government or leadership, in whatever hands it may be, from constant critical scrutiny. Above all we will not tolerate the contraction of that sphere of independent and individual action in the expression of faculties and attributes which so far constitute the final utterance in this "strange, eventful history," the human personality, a mysterious unit of Being participating in the self-awareness of a universal intelligence itself expressed in terms of an immanent law.

Jurisdictional Disputes in Canada: A STUDY IN FRUSTRATION

By

J.

H. G. CRISPO AND H. W. AR THURS•

THE DIMENSIONS OF THE PROBLEM generated by jurisdictional disputes they would appear to constitute one of the gravest and most provocative problems in the field of labour relations. Typical of the emotion surrounding this issue is the following management indictment:

JUDGING BY THE SOUND AND FURY

Certainly no greater evil exists in the construction industry, than this practice of instigating a work stoppage or threat of a work stoppage, because of some jurisdictional dispute, usually beyond the control of the contractor, whose project is interrupted or subject to interruption by such conduct. 1 The issue has provoked equally disturbed reactions on the part of arbitrators and judges. One arbitrator, for example, was so aggravated by the facts in one case as to pronounce: This threat by the Bricklayers and Masons Union is pure unadulterated blackmail, supported by no legal right whatsoever. It is not new in this Province for craft unions to claim such rights without justification. In so doing they are in the same category as thieves, stealing or trying to steal someone's job by force or threat of force .... [T]here are continual jurisdictional disputes among unions as to their rights to do certain

-J. H. G. Crispo, B.Comm., Ph.D., Assistant Professor of Industrial Relations, University of Toronto, and H. W. Arthurs, B.A., LL.B., LL.M., Assistant Professor of Labour Relations Law, Osgoode Hall Law School. !Statement made on behalf of the Ontario Federation of Construction Associations before the Royal Commission on Labour-Management Relations in the Construction Industry (Proceedings, pp. 512-13). The statement is also cited in the final report of the Commission, hereinafter referred to as the Goldenberg Commission Report (1962), p. 48. CaRRl!NT LAW AND SocxAL PROBLEMS, Vol.

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work, particularly the building trades unions, with consequent loss of wages by employees, shut down of plants by reason of illegal picketing, and inconvenience and loss to the general public.... 2

In a more rueful vein a judge of the British Columbia Court of Appeal has remarked: This is a disheartening case-disheartening because it might so easily have been avoided, or so it seems to me. Two unions whose members were engaged in work for the same company employer could not agree on which union should do this and which that. The company was willing, indeed eager, to accept whatever agreement the two unions reached, so that some c

(a>Two issues in one complaint disposed of separately.

over 30

- 7 -·

Quashed& unknown 8

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Only twenty-three of the fifty-three complaints so far filed with the commission have resulted in interim work assignment orders. Of these, one is now being reconsidered (pursuant to section 66(1)) and another, Canadian Pittsburgh, was quashed in the Supreme Court of Ontario. As a result of this case, the commission has been forced to decline jurisdiction in 13 cases where its services were subsequently invoked. More than anything else this statistic demonstrates the damaging impact of judicial reversal upon the effectiveness of the commission. In addition, the commission's interpretation of the Canadian Pittsburgh Case has been, perhaps, broader than necessary. The commission has declined to entertain complaints not only from "stranger" unions who have no collective bargaining relationship at all with the employer, but also from unions who had no members employed by the employer on the particular project in question, without regard to the general relationship between the parties.911 Having regard to the ambulatory nature of construction work, the Canadian Pittsburgh doctrine would hardly seem offended if the employer were required to assign work to persons already in his employ, albeit at another project. Finally, there is no way of knowing how many potential cases were not brought to the commission at all, by reason of real or imagined knowledge of the Canadian Pittsburgh decision. In five cases the commission also declined jurisdiction on the ground that the complaint was premature because no work assignment had actually been made. The commission appears to be reluctant to take jurisdiction in such cases because of the hypothetical nature which they might readily assume. While "ripeness" of a controversy is a respectable legal doctrine, its applicability in jurisdictional disputes is open to serious question because of the pre-eminence of the time factor. The construction industry is unavoidably committed to forward contracting, and procedures should be available for the clarification of jurisdictional dividing lines before a project is actually undertaken. Such a policy would facilitate the letting of 9CiJt remains to be seen whether the commission will alter this approach in r~nse to the recently expressed legislative policy in favour of "area" as opposed to 'project" bargaining in the construction inilustry. See Stat. Ont. 1961-2, c. 68, s. 16 (now section 92(1) of the Ontario Labour Relations Act).

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subcontracts in accordance with accepted demarcation lines, and would probably contribute to a marked diminution in outright jurisdictional warfare. As long as the normal complaint procedures remained available to any aggrieved party after the work assignment has actually been made, it is difficult to see what serious harm could be done by a practice of anticipatory rulings. Contrariwise, it must be conceded that, particularly in novel situations involving new techniques, decisions in a factual vacuum are bound to be suspect. Five other cases were withdrawn by the plaintiffs, either because the job was completed before the case could be processed, or because the parties had arrived at some voluntary adjustment. The disposition of the seven remaining complaints is at present unknown.96 Turning to those cases which are clearly within its jurisdiction, the commission, pursuant to statutory directive, 97 has deferred to any means of private adjustment, so long as no work stoppage is in progress. In keeping with the legislative intent are the informal procedures involved by the commission in processing complaints. After an initial effort to effect service and solicit information by the usual technique of mailed notices, the commission quickly adopted the more expedient technique of telephone communication and informal consultation. Upon receipt of a complaint the Chairman convenes the commission (often within hours) and seeks information as to the facts and background circumstances of the dispute. All affected parties are consulted-either ex parte, or at an informal meeting-and the commission then meets in executive session to arrive at its determination. Generally speaking, the views of the rival unions and of the employer who made the work assignment are those which are put before the commission. Only rarely will other parties be considered so "affected" as to warrant their participation in the pro960£ these cases, four were in process at the date of writing; there was insufficient information on file in the remaining three cases to ascertain their ultimate disposition. 9TSection 66 (9).

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ceedings. Because of the Canadian Pittsburgh decision the possible parties to a proceeding have been held to a minimum. It is, however, easy to envisage a challenge to the commission's informal procedure by a party more or less remotely affected, who complains of a failure of notice or of denial of the opportunity to be heard. The salient point is, however, that the procedures followed by the commission actually work well. The commission seeks out and has before it all relevant facts and deals with them expeditiously. The speed of the commission's proceedings are well demonstrated by Table II. Finally the almost perfect record of acquiescence in its interim orders indicates that the commission's disposition of disputes is accepted by the parties. It should be noted, by the way of contrast, that in the one case involving a request for reconsideration, the commission has proceeded in a more conventional manner. Formal hearings were held, and (primarily because of adjournments to enable the gathering of evidence) the presentation of the case lasted many months. The commission has occasionally attempted to conciliate disputes. In these cases, as one might expect, the role of the partisan members of the commission can be especially valuable. With their intimate knowledge of the industry and the personalities involved, they can often contribute a great deal towards the settlement of the case and the formal withdrawal of a complaint. If the commission is unable to resolve a dispute by less than formal means, it issues an interim order assigning the work to one of the rival unions. In making such assignments, the commission has so far taken local trade practice to be crucial. In arriving at its understanding of local trade practice, the commission receives a variety of evidence as to practices in other jurisdictions (including National Joint Board job decisions, and inter-union agreements of record). As well, the commission's own decisions are relevant. As long as there is no apparent conffict between practice in Ontario and that outside of Ontario, no difficulty is likely to arise. Should the two ever conffict, the commission will have to make an unhappy choice between changing Ontario practice or preserving an anomalous situation in the province which is out of keeping with

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practices found satisfactory elsewhere on the continent. It is interesting to note, as well, that in one case in which two unions had made a pre-project agreement to distribute certain work, the commission ordered adherence to the agreement and refused to deal with the merits of the dispute. In so doing, however, it stressed that its award was based upon the peculiar facts and had no precedental weight. The commission, in fact, casts all of its decisions in such terms: "This order is predicated upon the particular facts and evidence before us regarding this dispute, and shall he effective on this particular job only." Despite its emphasis on "area practice" the commission phrases its decisions in such a way as to deny them precedental weight in a jurisprudence of work assignment where precedent is said to he all-important.98 There is some suggestion that the commission will not always adhere to local trade practice. In one case in which is was denied jurisdiction because of the Canadian Pittsburgh decision, the commission clearly revealed its respect for inter-union agreements.

If it were not for this decision of Mr. Justice McRuer, we would order that the work in dispute should be assigned to members of the International Association of Bridge, Structural and Ornamental Iron Workers, such decision being based on the above-mentioned agreement between the two unions entered into in order to avoid jurisdictional disputes between the two parties to the agreement. We cannot criticize too severely the action and attitude of the Brotherhood of Painters, Decorators and Paper Hangers of America in accepting this assignment of work in the face of the agreement which their International Union entered into and which clearly gives this work to the Iron Workers. Such action can only hurt the good name of trade unionism.99

In the light of this admonition it would seem that the commission would probably override normal adherence to local trade practice, should the latter he in clear conflict with outstanding agreements between the disputant unions. 98Jn this practice, the commission appears to be modelling itself upon the National Joint Board. Note, however, that the latter denies precedental status only to "job decisions" while expressly conferring it upon "decisions of record." The commission has no such distinction available to it, and probably ought to be establishing a "common law" of area practices. 99Case 28 (Canadian Pittsburgh Industries) .

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The commission has not yet had to deal with a case in which its interpretation of local trade practice has conflicted with the definition of the bargaining unit contained in a certificate or a collective agreement. The commission apparently would still adhere to local trade practice. Indeed, it could hardly do otherwise. To give greater weight to the bargaining unit would encourage collusive arrangements between unions and the specialty contractors whose employees they represent: by enlarging the bargaining unit both would hope to enlarge their occupational property rights at the expense of rival unions and the rival contractors who bargain with them. The statute itself contemplates that definitions of bargaining units must yield to the commission's work assignment. Thus, section 66( 6) provides that upon application by any party affected by an interim order, the Labour Relations Board "may alter the bargaining unit determined in a certificate or defined in a collective agreement as it deems proper to enable the interim order or the direction to be carried into effect ...." It is perhaps appropriate to note that several observers have identified proper definition of bargaining units as a means of prospectively avoiding jurisdictional disputes. 100 The commission accords no weight to the employer's initial work assignment, because of the obvious possibility of collusion with the recipient union. This, prima facie, would seem to be sensible. However, combined with the adherence to past trade practice, this policy introduces an obstacle to the evolution of more efficient patterns of work organization in the industry, the occasions for which are obviously novel work assignments by enterprising employers. Where efficiency and rationalization stand counterpoised to traditional jurisdictional claims, the commission is faced with a choice between the long-run community interest in cheaper buildings and the short-run community interest in industrial peace through the elimination of jurisdictional disputes. The commission is apparently committed to the latter choice. Thus, until the unions themselves agree upon the distribution of work assignments, it is safe to predict that no changes will take place in archaic and lOOLaskin, "The Ontario Labour Relations Amendment Act, 1960" (1961), 14 Univ. Tor. Law Jo. ll6, at p. 121 ; Wintenneyer (1960), l Ontario Legislative Assembly Debates 942.

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uneconomic demarcation lines. Since any union-negotiated changes are almost certain to favour strong unions over weak, the likelihood is that such changes will produce higher wage levels and more stringent work rules. The net effect might well he serious. Available American evidence points to a similar dilemma, as is revealed by the experience of the National Joint Board: There do not appear to have been developed any significant objective criteria related to a rationale or work skill required on the disputed job, nor has there been any indication of any consistent reliance upon such standards in arriving at decisions, even where prior determinations and/or agreements were not involved. The consistent emphasis and reliance has been upon the records of prior or related decisions, agreements and established trade practices. A critical review of such prior practices and local area decisions and agreements indicates that the relative strength of the disputant unions rather than some logical rationale of pertinent job skills is a major determinative factor. Thus a reliance on the accepted standards referred to above has the effect of freezing into binding decisions the Haws that may exist in the localarea decision-making process. 101 Although this may he a relatively small price to pay to attempt to bring an end to costly jurisdictional warfare in the construction industry, it is questionable whether a public tribunal should be associated with the promotion of such potentially wasteful practices, whatever might be appropriate for a private body such as the National Joint Board. The legislation merely instructs the commission to make such decisions as are "proper in the circumstances." It may be unreasonable to expect the commission to chart its course by the stars of public policy when it is caught in the strong undercurrents of traditional craft claims without the rudder of proper legislative instruction. If our legislators are willing to pay the price of industrial unrest for flexibility and innovation, they have not said so. In another area-that of "compulsory unionism"-the implications of the legislation remain unexplored. An award of work to a claimant union may confront employees with a choice between 101Rains,

"Jurisdictional Dispute Settlement in the Building Trades" (1957),

8 Lab. Law Jo. 392.

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belonging to that union or to none. Since the latter alternative is illusory in a highly organized labour market, employees who wish to continue to perform the work in question are obliged to recognize as their bargaining agent one union although they may prefer to belong to another. Were the Canadian Pittsburgh Case overruled by legislation a union with no employee support at all could appear on the scene, secure a favourable award from the commission, and insist that employees either become members or leave the job. Even under the present legislation, a claimant union need only make a showing that some employees are members in order to qualify for relief. Thus, a small minority may come to hold a majority captive. Because entitlement to work is based upon trade practice, a "parvenu" union may be systematically eliminated from an industry in which it has no historical roots. Such would appear to be the likely fate of District 50 of the United Mine Workers, and of the Christian Labour Association, in the construction industry. Quite apart from the desirability of such a development, it flies in the face of a cardinal principle of our legislation-the free selection by employees of their collective bargaining representatives. Finally, employers are forbidden by section 35(2) of the Act to discharge employees to whom union membership has been denied, notwithstanding the presence of union security arrangements contained in a collective agreement. It is easy to visualize an employer caught on the horns of a dilemma: he must be "unionized" to survive in the industry; jurisdiction over his work is awarded to one union while his employees persist in support of another; so long as they preserve their loyalty the union having jurisdiction will not admit them to membership, while the employer is forbidden to discharge them. The commission, during its initial period of operation, has happily been spared this and other vexing problems. Judging by the virtual absence of jurisdictional strikes in advance of resort to the commission, or in defiance of its orders, future prospects are hopeful, at least within the limits indicated below. No doubt this record stems in large measure from the performance of the commission's Chairman and members. They appear to work effectively together, all of their decisions having been unanimous, and they apparently

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enjoy the respect and confidence of those with whom they deal. In part, the speed of the commission is responsible for its success. Finally, the parties themselves largely appear to have accepted the commission in good faith. Their main complaint must surely be that in the light of Canadian Pittsburgh Case, the hand of the commission has been too often stayed. 102 Perhaps, as well, the threat of an unfavourable job assignment by the commission has caused unions to avoid unnecessary disputes and to make more effective use of the National Joint Board. CONCLUSION it would almost seem, can be satisfactorily resolved neither by adjudication nor by adjustment. Consider the bewildering variety of competing interests which must be accommodated: the rival unions' interests in maintaining or enhancing work opportunities for their members; the short-run public interest in the elimination of jurisdictional warfare and the long-run public interest in economic and efficient work patterns; the interests of competing subcontractors in available jobs; the interest of both prime contractors and subcontractors in their freedom to contract, inter se, and the interest of unions in the sanctity of existing contractual arrangements relating to the assignment of work; the interests of individual employees in preserving their skill-investment, and the status derived therefrom, in the face of changing patterns of work organization; the interest of employers in their ability to direct the work-force (subject only to their collective bargaining obligations) without hindrance from "stranger" unions; the interest of employees in preserving, simultaneously, their freeJURISDICTIONAL DISPUTES,

1021n a recent case in which the commission declined jurisdiction on the grounds of Canadian Pittsburgh, the aggrieved union sought to have the Labour Relations Board declare that in assigning work to a rival union the employer had been guilty of an unlawful lockout. In cleclining to make such a declaration, the board stated: "Since the Jurisdictional Disputes Commission has declined jurisdiction, it may well be that the parties should, in the course of their negotiations give consideration to referring such matters to some existing or new body for their final settlement." Canadian Johns-Manville Co. Ltd. (1962), July Monthly Report, O.L.R.B. 135, at p. 137 (indexed Endorsement).

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dom to work for the employer of their choice while belonging to the union of their choice. The list is not exhaustive. The question to be answered is thus whether legal processes, be they adjudication-oriented or adjustment-oriented, can contribute to the accommodation of some of these competing claims without doing violence to others. Both Canadian and American legislation (at least since 1947) have forbidden jurisdictional warfare, but-in failing to deal with its causes-have failed to eliminate it. Inter-union negotiation, on the other hand, has resolved a number of important disputes, but there is no guarantee that due regard was paid either to the public interest or to the rights of individual employees. Adjudication of the merits of jurisdictional controversy by public and private agencies has evolved no "common law" standards except for "trade practice," and demonstrates no propensity to prefer innovation to tradition. Adjudication seems to favour rigidity. To think in terms of a "legal" solution is indeed an exercise in frustration, at least until basic value judgments are made. Yet the formulation of public policy in terms of a choice between sanctity of commercial arrangements and protection of union employment opportunities, or between industrial strife and industrial stagnation, is too drastic to contemplate. Perhaps the ultimate solution to the jurisdictional disputes problem lies with the unions themselves. Instead of attempting to eliminate disputes, the solution may be to eliminate jurisdiction. Government intrusion into the institutional fabric of a free labour movement is unthinkable, but if the pattern of union organization could progressively adapt to changing patterns of industrial organization, there would be no real problem. Merger of the Carpenters' and Lathers' unions, for example, would eliminate controversy over the installation of acoustic tile. The ability of the labour movement to create internal order may not only be the sole means of resolving jurisdictional disputes; it may be the measure of the movement's ability to survive as a viable force in the labour market.

'The Drift towards a British N_ational Wages Policy By W. F. FRANK*

And Virtue, who from Politicks Had learn'd a Thousand Cunning Tricks Was, by their happy in8uence Made Friends with Vice; and ever since The Worst of all the Multitude Did something for the Common Good. 1 means different things to different people.2 In its broadest sense it implies that the state takes a direct part in the process of wage determination instead of leaving it to the unfettered forces of the market.3 Such a policy may be adopted because it is felt that the forces of the market will either keep the wage level below what is considered its fair position or, on the other hand, will raise wages to a unfairly high level. Thus, a limited national wages policy operated on these lines will either place a bottom below the wages structure-that is, a national minimum wage-or will suspend a ceiling above it. Most of the wages policies operated in past centuries were of the latter type. In its more sophisticated version, a national wages policy is concerned not merely with "rock-bottoms" and with "ceilings," but also with wage differA "NATIONAL WAGES POLICY"

"Dr. Jur.; M.Sc.(Econ.); B.Com.; LL.B.; Head of the Department of Management and Business Studies, Lanchester College of Technofogy, Coventry, England; member of the Editorial Board of the Journal of Business Law. lDe Mandeville, The Fable of the Bees (1724), p. 9. 2 "No Government can avoid having a wage policy. It may be a policy which involves no direct interference with the mechanism of wage fixing, but even non-intervention is a policy." Roberts, A National Wages Policy in War and Peace (1958), p. 24. 3", • • All attempts to settle the wages difficulty by supply and demand have hitherto ingnorniniously failed. If capital takes advantage of labour at one time, labour takes advantage of capital at another. • ••" Syme, Outlines of an Industrial Science (1876). CuJUUINT I.Aw AND SOCIAL PROBLEMS,

Vol. m, 1963

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entials. In this form, a national wages policy becomes a true alternative to the sectional determination of wages. 4 The history of wage legislation and of government wage policy shows that, in Britain at least, the attitude of the state to wages has never been consistently declared. 5 From time to time temporary difficulties have called for particular measures to overcome them and these measures, because of legal and political inertia, have been retained even when the immediate need for them has disappeared. If this paper has any moral to propound, it is that lawyers and politicians have failed to learn the lessons taught by economists or have been guided by the economic views held in the days of their fathers, without realizing sufficiently that economic philosophy and theory tend to reflect the problems and views of the day when they were first expounded. It is, after all, not only generals who may be charged with trying to fight the last war; our governments and legislators are guilty of the same mistake when they follow policies intended to deal with the last depression. This paper first will set out the history of British wages policy; and readers who have some knowledge of British legal and economic history must forgive the author for retelling a story often told before. Next follows a discussion of the economic and legal issues underlying a modem national wages policy. The concluding section contains some tentative proposals as to possible progress in the immediate future.6

I In the Middle Ages men had believed in the possibility of such norms as a "fair price" and "fair competition." To a large extent they are corning to believe in them again. 7

dealing with wages was of the "ceiling variety." The Black Death in 1348 had decimated the population of England EARLY LEGISLATION

4 Jack, "Is a Wages Policy Desirable or Practicable?" (1957), 67 Econ. Jo. 585. 5This is true even at the present time. Cf. Incomes Policy: The Next Step, Cmd. (1962), which shows the same unwillingness to lay down a precise policy as earlier statements have done. 6Based on an earlier article by the author: Frank, "A National Wages Policy: Some Legal Implications," [1962) Jo. Bus. Law 129. 7Radclilfe, The Law and Its Compass (1960), p. 58.

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and, following normal economic principles, the reduced supply of labour led to wage increases which ranged up to 50 per cent. 8 The Ordinance of Labourers in 13499 recited in its preamble the general economic background which had been responsible for its making: "Because a great part of the people and specially of the workmen and servants late died of the pestilence, many, seeing the necessity of the masters and great scarcity of servants, will not serve unless they may receive excessive wages and some are rather willing to beg in idleness than by labour to get their living." The Ordinance provided that all able-bodied men and women without definite means of support were to accept service at the old rates of pay and remain in their master's employment until their contracts of service had expired. It was further laid down that all able-bodied labourers were not to be given alms, and butchers, bakers, and fishmongers were exhorted not to profiteer but to sell their provisions at reasonable prices. The Ordinance of Labourers, which bears some resemblance to legislation passed in modern times during and after wars, was clearly intended as a mere holding operation. It was followed by the Statute of Labourers of 13511° which prescribed in detail the wages payable to artisans and labourers. A later Act, the Statute of Labourers of 1388, 11 contained similar detailed scales of wages because, as it said, "servants and labourers will not and for a long time have not been, willing to serve and labour without outrageous and excessive hire and much greater than has been given to such servants and labourers in any time past." Our fourteenth-century legislators soon learned the lesson that it was impracticable for Parliament to fix wage rates because of the existence of local variations in the cost of living. Therefore, a further statute, passed in 1390,12 imposed a duty on the local justices of the peace to assess wages at their own discretion and "according to the dearth of victuals." Historians are now agreed that Parliament was fighting a losing 8Lipson, I The Economic History of England (8th ed., 1945), p. 114. 923 Edw. III, c. I. 1025 Edw. III, c. I. 1112 Ric. II, c. 4. 1213 Ric. II, c. 7.

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battle against the forces of supply and demand. Also, while legislation provided for fines both for receiving and for paying higher wages, it soon became obvious that wages could not be stabilized because "two masters were running after one man."13 Inflation in the fourteenth century was clearly no different from what it is today and, like King Canute, Parliament could not stem the incoming tide. The fourteenth- and fifteenth-century wage legislation was patently designed to help employers out of a difficult situation. The penalties imposed on those who paid higher wages were soon repealed, 14 while fines and imprisonment for labourers taking higher wages were retained. Furthermore, the statutes provided for maximum and not for minimum wages so that employers were able to lower wages as soon as economic conditions made this step possible. While official wage regulation had not been unknown before 1349 it had until then been the function of the craft gilds. The statutes of 1349 and 1351 introduced two new principles, namely that of state intervention and that of compulsory labour. Labourers could now be compelled to accept work at legal rates and were no longer free to move elsewhere in search of better wages and working conditions.16 Wage-fixing by the local justices of the peace did not last long. In 1445 16 Parliament reintroduced the principle of a statutory maximum wage and this method of regulation persisted during the early Tudor period. Throughout this period inflation continued, largely because of the debasement of the currency by successive rulers. Elizabeth I tried to prevent the gradual depopulation of the countryside and a Bill was introduced in 1559 ordering the justices to appoint at every session by proclamation the wages payable to labourers. Although this Bill was an abortive one, justices began ( with some degree of official approval) to fix local wages in excess of the statutory maxima. Eventually, the Statute of Apprentices of 1563 17 repealed once more the system of statutory wage-fixing and gave full powers to the justices "to yield unto the hired person both 13Lipson, op. cit. supra note 8, at p. 116. 144 Hen. V, c. 4. 15Lipson, op. cit. supra note 8, at p. 118. 1um Lipson, ibid., p. 252.

115 Eliz. I, c. 4.

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in the time of scarcity and in the time of plenty a convenient proportion of wages." The justices of every county and city were authorized to fix the wages of labourers and artificers at their annual Easter session "calling unto them such discreet and grave persons ... as they shall think meet and conferring together respecting the plenty and scarcity of the time and other circumstances necessary to be considered."18 The Act also reintroduced the system of penalties for infringement, that is, a £,5 fine and ten days' imprisonment for paying wages above the official scale and twenty-one days' imprisonment for accepting such wages. It is noteworthy that the official wages were once again maximum and not standard wage rates. As there existed some doubts whether the machinery was also to operate in respect of agricultural wages, a further Act passed in 1598 made this clear beyond doubt. The existing Elizabethan legislation was confirmed by another Act in 1603111 which added, however, two further important principles, namely that the wages fixed by the justices were to act as minimum as well as maximum wages and that clothiers (the most important group of employers) should be debarred from sitting as justices fixing wages. A penalty of 10s. was laid down for every act of underpayment. Although the principle of state intervention in wage assessment continued beyond the Restoration, it had lost much of its impetus and judges were seeking gradually to limit the application of the Statute of Apprentices to agricultural employment. 20 Lipson suggests that the fall of the monarchy represented a turning point in the evolution of capitalism since after the Restoration the energies of Parliament were absorbed in providing the proper commercial background for industrial expansion.21 By the middle of the eighteenth century the wages clause of the 1603 Act had ceased to have much effect22 and wage assessments had become very rare, although in 1721 some tailors in Cambridge were convicted of tsTrevelyan, English Social History (1944), pp. 190-91. Jae. I, c. 6. 2on1 Lipson, op. cit. supra note 8, at p. 263. 2tJbid., p. 264. 22Amulree, Industrial Arbitration in Great Britain (1929), p. 7. 1111

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conspiracy for demanding wages higher than those fixed under the Elizabethan statute. 23 By now the system had become rather one-sided since it was never enforced against the employers while occasionally it was applied against labourers. 24 Even before Adam Smith had fired his broadside against restrictions on trade, employers produced arguments which might well have come from his pen. Thus, when in 1756 the weavers of Gloucestershire complained to Parliament that their employers had ignored rates fixed by the local justices some thirty years earlier, the clothiers in their reply attacked the very principle of compulsory assessment of wages. 211 Not only did they question its usefulness on technical grounds ( difficulty of measuring the quality of the work), but they also raised the issue of freedom of contract: "Every law which tends towards raising the price of labour ... will be greatly prejudicial to the trade of the nation." 26 Although the Statute of Apprentices was not repealed until 181327 it had fallen into desuetude to such an extent that a special Act had to be passed in 1773 (Spitalsfield Weavers Act) 28 to provide for the assessment of the wages of journeymen weavers employed within the City of London. Their wages were to be fixed by the justices and again penalties were prescribed for the payment of higher or lower wages. 29 The general distress among labourers, particularly those working on farms, led to the demand for the enforcement of minimum wages under the still existing legislation. Instead of prescribing minimum rates of wages, however, most benches of magistrates preferred to follow the example set by the Berkshire justices who at their meeting at the Pelican Inn in Speenhamland in May, 1796, resolved against regulating wages although they earnestly requested employers to increase rates of pay. They then decided 28Rex v. Journeymen Tailors of Cambridge (1721), 8 Mod. 10. Rogers, The Economic Interpretation of History (4th ed., 1898), pp. 38-39. 211111 Lipson, op. cit. supra note 8, at p. 266. 26Jbid., p. 268. 2153 Geo. III, c. 40. 2813 Geo. III, c. 68. 2DAmulree, op. cit. supra note 22, at p. 9. 24Thorold

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on the payment of supplementary allowances to all "poor and industrious men" based on the current cost of living (related to the price of bread), these payments to represent a charge on the local Poor Rate. 30 The Speenhamland system remained operative until the general reform of the Poor Law in 1834. The Speedhamland system represented more than a mere local expedient. It highlighted a change in economic philosophy which had taken place during the eighteenth century. The Statute of Apprentices has been based on the theory that the labourer's standard of living should remain unchanged so that in times of rising prices his money wages should be increased. This outlook on wages broke down in the eighteenth century under the impact of the forces of supply and demand. A contemporary pamphlet clearly makes this point when the anonymous author says: "... [T]he price of labour, like other commodities, must always depend on the proportion there is between the quantity ready to be sold and the quantity ready to be purchased."81 It would be fair to say that the early nineteenth century represented a period of quiescense in the history of British national wages policy. The Elizabethan statutes had been repealed and frequent attempts by sections of the working population to secure some form of minimum wage legislation met with no success.82 Current academic opinion of the time was opposed to any form of state interference with the assessment of wages. Thus Nassau Senior said: "But the instant wages cease to be a bargain, the instant the labourer is paid not according to his value, but his wants he ceases to be a free man."88 A similar view was expressed in the Third Report of the Select Committee on Emigration from the United Kingdom: "It is from an entire ignorance of the universal operation of the principle of supply and demand regulating the rate of wages that all these extravagant propositions are advanced."34 30This had been authorized by Gilbert's Act, 1782. 31Anon., A Letter from a Merchant: The Case of the British and Irish Manufacture of Linen (l 738), p. 20. S2E.g., an attempt by the cotton weavers in 1805. Cf. Amulree, op. cit. supra note 22, at pp. 38 et seq. SSThree Lectures on the Rate of Wages (1830), p. x of the preface. 84(1827), p. 15.

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One of the effects of the unwillingness of Parliament to assist in the stabilization of wages was the formation of trade unions. 35 As soon as it became obvious that the state could not or did not want to help the worker, trade unions were formed to achieve by selfhelp what Parliament was unwilling to provide. The history of their progress throughout the century, however, is not within the scope of this paper. While in earlier centuries the primary purpose of state regulation of wages had been the prevention of an undue rise in wages, social conscience in the nineteenth century called for measures which would prevent wages from falling below a level deemed to be "fair." Trade unions were to some extent able to prevent an erosion of real wages, but then unions were not equally powerful in all industries. Wages were particularly low and working conditions bad in the so-called "sweated trades." The sweating system has been judicially defined as "a system oppressive to the workman whereby an unconscionable or unjust profit is wrung from the sweat of his brow by paying him unsufficient wages for his work." 86 With respect to the learned judge, this definition misrepresents the true nature of sweating. Employers of sweated labour were not making unconscionable profits; indeed most of them were as miserable and impoverished as the workers they employed. They were small craftsmen employing largely unskilled labour, mostly female, in insanitary workrooms where the minimum of equipment was provided. Inefficiency rather than greed was the fault of the employers. They were able to afford inefficiency because there existed an ample supply of cheap and unskilled labour. A Select Committee of the House of Lords under Lord Dunraven's chairmanship was appointed in 1888 to consider the evils of sweating. In their Final Report, published in 1890, the Committee stated that these evils could hardly be exaggerated. They recommended an extension of the existing Factory and Workshops acts to include also the registration and subsequent inspection of workshops employing home-workers, the prohibition of the employSIIBrentano, Gilds and Trade Unions (1870), p. clxxiv; Webb, I Industrial DetnOCTacy (1897), p. 247. 86Chitty J., in Collard v. Marshall, (1892) I Ch. 571, at p. 576.

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ment of women and girls on some of the heavier tasks (e.g., chainmaking), and the promotion of technical education to remedy the inefficiency of the workers. The main opponents of the sweating system felt that these proposals did not go far enough and Sir Charles Dilke, M.P ., introduced anti-sweating bills in the House of Commons regularly each session from 1898 onwards.37 It was, however, only in 1909 when the government took up the case of the Anti-Sweating League that the Trade Boards Act was passed. The Trade Boards Act of 190988 applied to four enumerated trades, but provision was made for its extension to other trades or industries where the rate of wages was exceptionally low in comparison with other employments. Separate trade boards with the power to 6x minimum wages were set up for each of the trades or industries to which the Act applied. The Trade Boards Act of 191839 changed the emphasis from low wages to the absence of proper negotiating machinery and provided for the setting up of trade boards in those trades or industries in which there did not exist machinery for the effective regulation of wages. During the First World War new wage-fixing tribunals were set up40 to 6x minimum wages of workers employed on "munitions work." 41 These tribunals temporarily replaced the existing trade boards and the Minister of Munitions was authorized to prescribe not only the rate of wages but also hours of work and the general conditions of employment. When the war ended, the Wages (Temporary Regulation) Act of I 91842 prevented an immediate collapse in the existing structure of wage rates. The Act made it an offence to pay less than the time-rates plus war bonuses recognized as generally applicable in a trade on November 11, 1918. Trade boards remained in operation until they were replaced in 1945 by wages councils.43 The main difference of substance 87For a discussion of the fight against sweating see Sells, British Wages Boards (1939), and Bums, Wages and the State (1926). as9 Edw. VII, c. 22. 398 & 9 Geo. V, c. 32. 40Munitions of War Acts (5 & 6 Geo. V, c. 54, 99; 7 & 8 Geo. V, c. 45). 41This term was r ·ven a very wide definition so as to cover in fact all employees engaged on work o national importance in wartime. 428 & 9 Geo. V, c. 61. 48Wages Councils Act, 1945 (8 & 9 Geo. VI, c. 17); as amended by Wages Councils Act, 1948 (12, 13 & 14 Geo. VI, c. 7).

70 I CURRENT LAW AND SOCIAL PROBLEMS between wages councils and the earlier trade boards is that while trade boards themselves fixed minimum wages, the wages councils merely submit proposals to the Minister of Labour for a new structure of wage rates. The Minister is empowered by the Act to make an order giving statutory force to the proposals of the wages council. He is restricted, however, to either embodying the proposals in a wages regulation order or returning the proposals to the council for reconsideration and he may neither reject the proposals out of hand nor amend them. Wages councils, like trade boards, are tripartite bodies consisting of an equal number of persons chosen to represent employers and employees in the trade or industry together with up to three independent members. 44 All members are appointed by the Minister of Labour, but he is required to consult with organizations of employers and employees in the trade or industry before nominating the persons who will respectively represent these interests on the council. It should also be noted that while trade boards were instructed to fix minimum wage rates, wages councils submit proposals relating to "remuneration to be paid," without any emphasis on "minimum." This implies that their responsibility is to make proposals which will secure to workers a reasonable standard of living, though the Act does not indicate any specific criterion to be adopted by the council. The law relating to wages councils has since been consolidated in the Wages Councils Act of 1959.411 Separate wage-fixing machinery was also set up in 193846 for persons employed by road haulage firms and in 194347 for those employed in the various branches of the catering trade, but these have now been merged into the wages councils structure. A separate system of wage-fixing still exists for workers employed in agriculture.48 440ne of the independent members is named by the Minister to serve as chairman of the council. Once appointed, the independent members are not subordinate to the Minister and he may not compel them to follow a particular course of action. Cf. Guillebaud, Wage Determination and Wages Policy (1960), p. 10. 4117 & 8 Eliz. II, c. 69. 46Road Haulage Wages Act, 1938 (I & 2, Geo. VI, c. 44). 47Catering Wages Act, 1943 (6 & 7, Geo. VI, c. 24). 48Agricultural Wages Act, 1948 (II & 12 Geo. VI, c. 47).

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Apart from the trade boards and wages councils, which represent a direct form of wage-fixing covering only 20 per cent of the employed population, mention must also be made of the Fair Wages Resolution of the House of Commons.49 This resolution was first passed by the House of Commons on February 13, 1891, at a time when the Anti-Sweating League was most active in mobilizing public support for its campaign against sweated labour. The intention behind the resolution was to take advantage of the bargaining position of government departments as large buyers in order to compel their suppliers to pay fair wages to their workers. A new resolution was passed on March 10, 1909, and this in turn was replaced by the resolution of October 14, 1946, which is still operative. The resolution calls upon government departments to insert standard fair wage clauses in the contracts placed by them. These clauses constrain contractors to pay wage rates and observe hours and conditions of labour not less favourable than those established for the trade or industry in the district where the work is carried on. These terms are the result of negotiation or arbitration, the parties to which are organizations of employers and trade unions representing substantial proportions of the employers and workers in the trade or industry in that district. Where no wage rates have been established for that trade or industry, the contractor is expected to pay wages which are not less favourable than those observed by other employers whose general circumstances are similar. Any question as to whether a particular contractor is observing the requirements of the resolution has to be submitted by the Minister of Labour to the Industrial Court, unless it has been possible otherwise to dispose of the issue. In the period immediately following the Second World War no further attempts were made to regulate wages by legal action. As will be shown in the next part of this paper, reliance was placed on collective bargaining which, at a time of full employment, should, and indeed does, secure adequate wages for the hulk of the working population.ro The newly emerging danger of wages The Growth of British Industrial Relations (1959), p. 262. a discussion of British wages policy (such as it was) during the Second World War, see Roberts, op. cit. supra note 2, at pp. 26 et seq. 4 9Phelps-Brown,

150For

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rising too fast rather than too slowly was covered by exhortations to the bargaining parties to show a sense of national responsibility. The only statutory or semi-statutory intervention in the bargaining process was found in part III of the Conditions of Employment and National Arbitration Order of 194051 which required all employers to observe terms and conditions of employment not less favourable than "recognised terms and conditions." "Recognised terms and conditions" were defined as those settled by the machinery of negotiation or arbitration to which the parties were organizations of employers and trade unions, representative respectively of substantial proportions of employers and workers in the industry concerned. It may be argued that part III of the 1940 Order extended the principle underlying the Fair Wages Resolution to the whole field of industry. The Conditions of Employment and National Arbitration Order was replaced in 1951 by the Industrial Disputes Order. 52 This Order did not impose a general obligation on employers to observe recognized terms and conditions, but instead provided53 that a trade union or an employers' association habitually participating in collective bargaining in a particular industry might report to the Minister of Labour as an "issue" the charge that a certain employer in that industry failed to observe the standard terms and conditions of employment prevailing in the industry. The Minister was authorized to refer the issue thus reported to him to the Industrial Disputes Tribunal set up by the 1951 Order. If the Tribunal found that there existed recognized terms and conditions of employment in that industry and that the employer concerned had in fact failed to observe them, it could by its award order him to do so. The Industrial Disputes Order was revoked by the Minister of Labour in December, 1958, but the provisions dealing with the extension of collective agreements and arbitration awards to persons who were not parties to them were retained by re-enacting them in the Terms and Conditions of Employment Act of 1959.5' What GlS.R. & 0. 1940, no. 1305. G2S1. 1951, no. 1376. G8Art. 9. "7 & 8 Eliz. II, c. 26, s. 8.

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the Industrial Disputes Order called "issues" are now called "claims" and if a claim cannot he otherwise settled the Minister may refer it to the Industrial Court for its award. If we survey the history of state regulation of wages in Britain we find that it may be divided conveniently into two periods: the early period extended from the fourteenth to the early nineteenth century, and was characterized by attempts to fix maximum wages;55 the second period, which started toward the end of the nineteenth century and which has lasted up to the present day, has been a period of minimum wage legislation. Only between these two periods, for something like sixty years, did unrestricted laissez-faire prevail in wage assessment. It may well be that we are now on the threshold of a further stage where wage regulation will be conducted for entirely different reasons and by entirely new methods.

II The 6gure of Lord Keynes cast its shadow before.116 WAGE DETERMINATION in modern Britain differs from that of most other European countries in the much greater emphasis that is placed on industrial self-determination. 57 The belief in the value of collective bargaining is held with almost religious fervour. 118 Where the state has intervened in wage assessment, for example through minimum wage legislation, the predominant motive has been not so much that of ensuring the payment of "fair" wages, hut rather that of establishing statutory machinery for collective bargaining where voluntary machinery was non-existent. 59 Employers and trade unions are agreed in the belief that the state has 1111 Holdsworth characterizes the period as follows : "That wages and prices should be fixed by free competition they would have thought a monstrous absurdity. Can we in the twentieth century, who live in an atmosphere of free competition, tempered by strikes, lockouts and rings, say as decisively as the economists of the middle of the nineteenth century would have said, that their principles were wholly unreasonable?" II History of English Law (1st ed., 1909), p. 384. 16Radcliffe, op. cit. supra note 7, at p. 59. G7Phelps-Brown, op. cit. supra note 49, at p. 355. 118"• •• Today it is near blasphemy to question if not the divine right of collective bargaining, at least the divine rightness of every collective bargain." Wootton, Remuneration in a Welfare State (1961), p. 7.

aewilliams, The Price of Social Security (1944), p. 45.

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no right to intervene in the process of collective bargaining, except perhaps in picking up the pieces where the parties have come to blows. The demand for a deliberate and consistent national wages policy has come therefore not from industry but from the academic students of industrial relations and from the press. Professor J. H . Richardson has stated00 the main tasks of a national wages policy as involving the following: (a) the provisions of minimum standards; (b) the provision of appropriate margins for skill and experience; (c) the maintenance of reasonable stability between wages and prices; (d) the provision of a general rise in purchasing power if productivity increases; (e) the use of incentives for efficiency and output; Cf) the levelling up of wages in low-paid industries. With the possible exception of the first and last of these objectives, government policy has so far been entirely negative.61 It is interesting to compare the above statement with one made some thirty years earlier when the emphasis was placed solely on the improvement in the conditions of workers and the prevention of industrial unrest.62 The main reasons why a national wages policy today is charged with much wider and more responsible tasks are the continuation of full employment since the war, the heritage of what has become known as the Keynesian revolution,63 and the changed economic situation of Britain since 1939. It may well be true that collective bargaining and the various forms of statutory simulation of bargaining, wages councils, for example, represent an advanced form of industrial democracy,64 but some doubts may be expressed as to whether this form of industrial democracy is compatible with political democracy as we know it. In a political democracy a popularly elected Parliament is responsible for the welfare of the people. If the interests of the 60Richardson, An Introduction to the Study of Industrial Relations (1954),

p. 350.

61Cf. also Jack, supra note 4, at p. 585. 62Burns, op. cit. supra note 37, at p. 8. 63"The Keynesian . .. revolution has in many important ways passed British pay-fixing by. The lesson that Keynes and Pigou taught was that certain economic decisions are so wide and remote in their incidence that many facts relevant to them are likely to escape the notice of those whose attention is focused on decisions of detail." Fogarty, The Just Wage (1961), p. 249. 64Sells, op. cit. supra note 37, at p. 5.

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country as a whole clash with those of sectional groups (employers and workmen in particular industries), the national interest must prevail. There is little doubt that under conditions of full employment such clashes do occur. If by a collective bargain a wage increase is agreed upon, it is unlikely that it will be financed out of the employers' profits. The higher wage costs will be reflected in higher prices and will thus ultimately become a burden on the general consuming public. The general public is, however, not represented at the bargaining table where collective agreements are negotiated although it will have to foot the ultimate bill.65 It would be unfair to blame employers and trade unions for not being more "responsible" in their negotiations and for putting sectional interests before the national need; the responsibility for assuring the public that full employment should be maintained without allowing inflation to get a stranglehold on the economy rests fairly and squarely on the government. 66 It is only the government that is able to view matters in the right perspective and to hold the balance between conflicting claims, and a national wages policy is the obvious means for achieving this end. There exists a large and ever increasing literature on the economics of collective bargaining and much energy has been spent on an analysis of the criteria which are used by negotiators on both sides to support their respective contentions.67 These wage criteria should in theory be invaluable in framing a national wages policy, but unfortunately they are of little practical help to us. If the truth be told, the economic element in collective bargaining is very small indeed and these bargains are generally economic in form rather than in substance.68 There exists at any particular time an "image" 611 ''The case for a national wages policy rests on a single and simple premise, that there is an undefended public interest in the results of collective bargaining." Flanders, "Can Britain have a Wage Policy'?" (1958), 5 Scot. Jo. Pol. Econ. 114. 66Dennison, "Wages in Full Employment," Lloyds Bank Rev. (April, 1950), p. 36. 67Unfortunately, no set criteria appear to be acceptable to both sides at negotiations. "From the answers that we received it seemed to us that there was no mutually accepted formula and no expressed common consent in regard to guiding principles." Report of a Court of Inquiry into a Dispute between the Engineering and Allied Employers' National Federation and the Confederation of Engineering and Shipbuilding Unions, Cmd. 9084 (1954), para. 110, p. 40. 68Wootton, op. cit. supra note 58, at p. 9.

76 / CURRENT LAW AND SOCIAL PROBLEMS of the "right" bargain and the economic arguments which are produced by the parties during negotiations are no more than a form of window-dressing to deceive the gullible general public, rather than the real meat of the negotiations. Eventually, whether by agreement, arbitration, or negotiation, with or without an interruption of work, the expected settlement is reached and the only people that have reason to be surprised are the rank-and-file members of the trade union and the general public both of whom have perhaps genuinely believed in what the experts know to be a mere ceremonial ritual. Even where the bargaining parties are apparently unable to agree and the matter is submitted to arbitration, the position is no different. After all, the arbitrator's task is "merely to find the collective bargain ... which the parties themselves would have reached had they not, through obstinacy or bad temper, unfortunately failed to do so.''69 The other reason why the study of the economic arguments produced by the parties at their bargaining sessions is of so little practical value is that the two sides are transmitting their views on different wave-lengths. They both talk about wages; but wages mean primarily spendable incomes to the trade unions, while to the employers they mean costs of production. Arguments about costs may be conducted on an economic level, but where incomes are under consideration the discussion ranges inevitably over the fields of economics, ethics, political theory, psychology, biological needs, and so on. 70 An excellent illustration of the confusion of economic and other criteria is found in the report of the Court of Inquiry into a Dispute between the British Transport Commission and the National Union of Railwaymen. The Court of Inquiry stated: 71 ''The nation has provided by statute that there shall be a nationalised system of railway transport which must therefore be regarded as a public utility of the first importance.72 Having willed the ends, 69Jbid., p. 7; Williams, "The Myth of Fair Wages" (1956), 66 Econ. Jo. 621, at p. 628; Phelps-Brown, op. cit. supra note 49, at p. 356; Bernstein, The Arbitration of Wages (1954), p. 112. 70Williams, ibid., pp. 632-34. 71January 3, 1955, para. 10. 72Political

theory.

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the nation must will the means. 73 This implies that employees of such a national service should73 receive a fair and adequate wage and that in broad terms the railwaymen should be in no worse case74 than his colleagues in a comparable industry." It may well be that the non-economic arguments adumbrated by the Court are important ones but they do not as such provide an answer to the economic case put up by the Commission, namely that higher costs could not be recovered by higher charges. Perhaps we are a little too hard on the bargainers, arbitrators, and courts. As things stand at present they are not expected to lay down principles of general application. 711 They rightly see their task as that of deciding a particular dispute and not of determining issues of principle. In view of what has been said already, no good purpose would be served by discussing at length the various arguments produced at bargaining sessions and before arbitrators. 76 What is fairly clear is that arbitrators prefer to decide each case on its merits and to ignore, as something outside their control, the wider national implications of their awards or decisions. This point of view was clearly expressed by the Court of Inquiry investigating a dispute between the Engineering and Allied Employers' National Federation and the Confederation of Engineering and Shipbuilding Unions. 77 The Court stated: 'While, however, a period of general stability may be highly desirable this general consideration ought not so to weigh at any particular moment that it rules out of consideration under all circumstances any claim which is shown to be just. To refuse, because of the perils of inflation, to recognise the claims of those whose wage rates have relatively to the wage T3Ethics.

'14Social psychology. 75Ford, The Economics of Collective Bargaining (1958), p. 86. This appears to he true also of Australian conditions; see Foennander, Studies in Australian Labour Law and Relations (1952), where he says at p. 158: "The justices, accordingly were intent upon deliberation reflecting the thought and psychology of the market place rather than discussions drawn &om the dissertations of the hooks or the disputations of the halls of learning." 76 Ford, ibid., pp. 87 et seq. Wootton, Social Foundations of Wage Policy (1955); Richardson, op. cit. supra note 60, chaps. XVI-XVII; Bernstein, op. cit. supra note 69. '1'1February, 1954, Cmd. 9084, para. Ill.

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rates of others materially fallen behind, would be difficult to defend." 78 Arbitration boards and courts of inquiry have over the last twenty years acted as "wage followers" rather than as "wage leaders." An American observer of the British labour scene has commented that their decisions have rested predominantly on the movement of wages in other sectors of the economy, on what would in the United States be termed "inequities" and in Britain are often called "customary relativities."79 This trend is largely responsible for the charge that wage increases played the most important part in causing post-war inflation. While there is no direct evidence that trade unions have planned the tactical order in which their wage demands are presented, there exists at least some suspicion that the first attack in each year's round of wage demands is directed against employers least likely to resist and that the increase gained there is then spread through the remainder of the economy by stressing the disturbance in existing relativities caused by the original settlement or award. The fact is that free and sectional collective bargaining undertaken under conditions of full employment is not compatible with price stability, except where trade unions exhibit a degree of selfrestraint in their demands which it is humanly impossible to expect of them. Lord Keynes has shown that full employment may be achieved and maintained by regulating aggregate demand. If there exists unemployment it is possible to overcome it by artificially stimulating aggregate demand, whether by extra investment expenditure or by increased consumer expenditure. Cutting wages under these conditions would offer no solution since, while lower wages would mean lower costs and prices, they would also mean reduced spending power and thus total demand would not increase. The correct policy in conditions of severe unemployment is to maintain money wages and to generate additional demand by raising other incomes and by government spending of all kinds. Minimum wage 78The logic behind this argument appears to suggest that while some people deserve to lie better off than they were at an earlier date, no one should be relatively worse off. This is a true case of Alice in Wonderland economics. 79Reynolds and Taft, The Evolution of Wage Structure (1956), p. 258.

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legislation of the kind introduced in 1909 appears therefore to have been a useful measure of dealing with unemployment, though this was probably unknown to those who sponsored it.80 While it may be possible for a country to spend itself out of depression, it is not similarly possible for it to spend itself out of the effects of inAation.81 This is Britain's problem today. We do not know what policy Keynes would prescribe if he were alive today, but we may be certain that he would oppose what has been happening in fact over the last few years.82 If the aim of our economic policy is the maintenance of full employment, which is very much the same thing as utilizing our productive capacity to the fullest extent, then prices should be kept stable and money wages allowed to rise gently. If prices are to be kept stable, labour costs must also remain fairly constant and that means that the rise in money wages must be kept in tune with the increase in national output. While under conditions of unemployment real wages may have to be allowed to decline in order to provide an additional incentive to private investment, under conditions of over-full employment, real wages should be allowed to increase, provided always that this increase is kept under control. Thus, "the key problem is . .. to maintain an aggregate level of demand that will keep aggregate wage increases in balance with the rate at which the total output of goods and services is rising."83 Keynes, of course, did not live long enough to study the problems of peace-time full employment which he had never experienced,84 SO"Thus it is fortunate that the workers, though unconsciously, are instinctively more reasonable economists than the classical school inasmuch as they resist reduction of money wages . . .. " Keynes, The General Theory of Employment, Interest and Money (1936), p. 14. 81Roberts, "Industrial Relations," in Ginsberg (ed.), Law and Opinion in England in the Twentieth Century (1959), pp. 376-77. 82 "That the proponents of high wage theories still 6nd support in The General Theory for their theories can be explained by their failure to understand the General Theory .. . ." Harris, "Keynes' Attack on Laissez Faire and Classical Economics and Wage Theory" in Harris (ed.), The New Eronomics (1947), p. 556. 83Roberts, "Centralized Wages Policy" (1958), 5 Scot. Jo. Pol. Econ. 156. 84The war-time British Government did not anticipate this problem either. The White Paper on Employment Policy. Cmd. 6527 (1944), has got much to say on methods of maintaining total expenditure when it is in danger of declining, but nothing on the right policy to adopt when total expenditure is rising too fast.

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but the trend of his thought, as expressed in his later articles, shows clearly that he fully appreciated the problems of cost in8ation for an economy, such as the British one, which is open to foreign competition. Keynes's attitude to our present wage-price problem would surely have been more realistic than that of some of his illustrious followers. Beveridge, in his Full Employment in a Free Society, 85 has not got much to say on the specific problem which we are discussing, mainly because he assumed that trade union leaders and, more surprisingly, their rank-and-file members would be so overjoyed at the continuation of full employment under peace-time conditions that they would be guided solely by sweet reason in tempering their wage demands. He argued that the primary responsibility for preventing full employment from coming to grief in a vicious spiral of inffation rested on those conducting wage negotiations on behalf of labour and he believed that the more explicitly that responsibility was stated, the greater could be the confidence that it would be accepted. In theory it appears then that the ideal wage policy is one based on holding money wage rates down to a small rate of increase while allowing wage-earners the benefit of rising real incomes through a stable price level. Aggregate demand may then be manipulated by the government with the help of the traditional fiscal and monetary weapons. Unfortunately this theoretical solution appears to be practically impossible. This tide of wage demands may be slowed down for the time being, but without an effective national wages policy it is impossible to stem it for any length of time. Prices have been rising since the end of the war and this has led to wage rates rising even faster with every increase in wages leading to a further increase in prices. This is not the kind of situation which a reading of Keynes's views would lead us to expect. If money wages have to increase faster than prices so as to achieve the promised rise in real incomes, the resulting effect on prices will cause the spiral of wage-price increases to which we have become so well accustomed. In a closed economy this situation might per85(1944), p. 200.

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haps be tolerated, but not so in an economy depending so much on the export trade as the British economy. Our situation may then be summed up as follows: full employment and free collective bargaining between them have caused prices and money wages to shoot up without achieving thereby any startling advances in real incomes. This trend has caused much unfairness since not all wage rates have risen equally so that particularly those sections of the community not represented by strong and pushing trade unions have suffered. It has also been largely responsible for Britain's endemic balance of payments difficulties since higher domestic costs have inevitably affected the competitiveness of certain of our industries. The essential task of a national wages policy is then to assist in the rapid growth of the economy while not allowing cost increases to hamper efficiency or penalize the weaker members of society. The possible shape of this policy will be discussed below, but it must be clear already that any effective national wages policy will spell the end of collective bargaining as we know it today.

III Legal progress, like trade depressions, appears in cycles.86

of law and public opinion in England in the nineteenth century, Professor A. V. Dicey divided that century into three periods: the period of legislative quiescence (17601830); the period of Benthamism or individualism (1825-70); and the period of collectivism (1865-1900).87 Collectivism in Dicey's terminology meant the school of opinion which favoured the intervention of the state, even at some sacrifice of individual freedom, for the purpose of conferring benefits upon the mass of the people. It may be argued that, accepting Dicey's terminology, the period of collectivism extended into the second decade of the twentieth century to be followed by what Professor Kahn-Freund has called IN HIS MASTERLY SURVEY

86Parry, "Economic Theories in English Case Law" (1931), 47 Law Quart. Rev. 186. 87Law and Public Opinion in England (2nd ed., 1930).

82 / CURRENT LAW AND SOCIAL PROBLEMS the period of collective laissez-faire. 88 Collective laissez-faire represents, at least in the field of industrial relations, a return to the legislative quiescence of the early nineteenth century. It notes that Parliament has felt satisfied with the ability of organized labour and organized employers to settle their affairs by agreement without there existing any need for legislative intervention. The state no longer deems it necessary to act as a ring-master; both sides in industry are so powerful that the very strength of each of them acts as an effective curb on the strength of the other. 89 It is understandable why both sides in industry prefer to be left alone in dealing with their problems. 90 Trade union power has grown steadily over the years and union leaders feel that they may achieve more by economic pressure than they could obtain through legislation which would have to be fought for in the limelight of public opinion. Employers express similar views, but for different reasons. They recognize that it would not be possible to secure effective legislation to curb the demands of the trade unions and that even if such legislation were passed it could not be enforced. It is simpler to rely on bargaining and to charge as the price for the making of concessions to trade unions their co-operation in recovering the concessions from the general public or the government.91 The age of collective laissez-faire is thus the age of unrestricted collective bargaining and we must now consider the legal nature of this phenomenon. 88"Lahour Law" in Ginsberg, op. cit. supra note 81, pp. 124 et seq. 89"For the Government, however, to approve or acquiesce in their [i.e., em• ployers and trade unions] exercising this function [i.e., wage determination] it must be satis6ed that the balance of forces between these two groups will ensure that the resulting wage standards will he appropriate in the interests of the economy as a whole ... or that in their negotiations and agreements they do not neglect these wider interests." Richardson, 'Wage Policy and a Labour Standard" (1956) 66 Econ. Jo. 432. Professor Galbraith has expressed similar views in his theory of "countervailing monopoly": American Capitalism (1952). 90"The collective bargain can justly he described as the last stronghold of complete laissez faire, the one sphere in which the public interest is thought to require no protection against private cupidity." Wootton, op. cit. supra note 58, at p. 7. A similar attitude appears to prevail also in the United States; cf. Sufrin and Sedgwick, Labor Law (1954), p. 122. 9t"The co-operation of organised management and organised labour in a situation in which price increases meet with little resistance may con&ont the Government with serious dangers of inflation." Kahn-Freund, '1ntergroup Conflicts and Their Settlement" (1954), 5 Brit. Jo. Soc. 193, at p. 202.

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Collective agreements have today two main functions, contractual and normative. 92 The contractual function concerns merely the parties to the agreement: the trade union and the individual employer or the employers' association. This aspect of a collective bargain is concerned with such issues as the recognition of particular unions, the closed shop, redundancy procedure, and the settlement of future differences between the parties. In English law these contractual aspects of collective agreements have no legal standing, at least not in those cases where the agreement is one between a union of workers and an employers' association (in English law also a trade union), since agreements between one trade union and another are not legally enforceable.93 More important perhaps are the normative aspects of collective agreements. These are designed to regulate the working conditions of individuals who are not themselves parties to the collective bargain. In many ways collective agreements resemble legislative norms intended to be binding on persons belonging to a class or group defined in the norm. 94 In considering the attitude of the courts to the normative content of collective agreements we find a peculiar ambivalence which characterizes English labour law.95 Although nowadays everyone knows that the substance of a contract of employment is, for the majority of workers at least, something outside their control, "law has elected to ignore the collective bargain as such and to enforce only the obligations between the individual workman and the individual employer."96 This means that in English law the normative parts of a collective bargain are not automatically embodied in the individual contracts of employment, but first must be expressly or impliedly accepted by the parties to them. Legally there is no reason why a particular employer contracting with an employee could not ignore the terms of a collective agreement applying to 92fbid., p. 197.

9 4Kahn-Freund,

93Trades Union Act, 1871, s. 4. supra note 91, at p. 200; Dunlop, Collective Bargaining

(1949), p. 29. 95"The substance of the mutual rights of employer and employee is withdrawn from their individual decisions and left to the outcome of negotiations between their groups." Kahn-Freund, ibid., p. 194. 96Parry, supra note 86, at p. 196.

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the industry, although both the employer and the employee belong to associations which have participated in the making of the collective agreement. It is because of this that the rather clumsy procedure for enforcing "recognized terms and conditions"97 had to be devised. The English approach to the enforceability of collective agreements thus differs from the Continental approach where the terms of a collective bargain are regarded as minimum terms for the protection of the employees so that individual contracts may improve on the normative provisions of the collective agreement but may not derogate from them. Under American law the position appears to be that the normative terms of a collective agreement are standard terms which cannot be contracted out either way.es While under English law the worker is formally subject only to those contractual obligations and entitled to those rights which he has freely accepted, in substance the terms are standard terms agreed upon by a trade union-of which he may or may not be a member-with his employer or with an employers' association. Thus the contract of employment becomes reduced to the mere act of hiring. The question may then be asked whether we have not returned to the position prevailing in the reign of Elizabeth I when a labourer was tied to a job into which he had been born and thus had little chance of controlling his conditions of employment. Sir Henry Maine has described 99 the trend in English law as being one from status to contract. This was written a hundred years ago and some recent writers have expressed the opinion that the trend may well have been arrested if not actually reversed. 100 Of course, the suggestion that status rather than contract once again determines the rights and duties of the citizen is not a new one. Sir 97See p. 72 supra. 98Kahn-Freund, supra note 91, at p. 210. See also de Givry, "Comparative Observations on the Legal Effects of Collective Agreements" (1958), 21 Mod. Law Rev. 503. The Continental approach is in line with the Recommendation passed by the International Labour Organisation Conference in 1951 (3rd section). The fourth section of the Recommendation provided for the extension of collective agreements to all employees and workmen included within the territorial and industrial scope of the agreement. &&Ancient Law (World's Classics ed.), p. 141. tOODias and Hughes, Jurisprudence (I 957), p. 399.

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Henry Maine was writing at a time when individualism appeared to have triumphed, and, while perhaps a reaction had already set in, it had not yet reached the stage when it influenced Parliament. As soon as what Dicey called collectivism got under way, freedom of contract was bound to suffer since "so far from assuming the capacity of its citizens to conduct their business according to their discretion, the State ... began to dictate to each his appropriate function in the social policy and to protect its weaker members from an ignorant and unfortunate exercise of their liberty."101 Minimum wage legislation, the factories acts, the workmen's compensation acts and similar legislation were thus the harbingers of the return to the rule of status. The rule of status represents in fact the paternalistic element in English law which Dicey considered to be one of the formative influences on public opinion in this country. As has been explained already, there have been no further substantial developments along this road for the last half century, but while legal status has lain dormant, collective status has come to the forefront. In labour law at least, the rights and duties of an individual depend today less on what he is or does and more on the particular collective unit to which he belongs. There are definite similarities here between the normative aspects of collective agreements and the charters and rules of the mediaeval gilds which governed the daily lives of the gild members. Bearing in mind the near-universal acceptance of the rule of collective laissez-faire, why is it that voices of dissatisfaction are heard with increasing frequency? Dicey, once more, provides the answer: "Success .. . in converting mankind to a new faith, whether religious, or economical, or political, depends but slightly on the strength of the reasoning by which the faith can be defended, or even on the enthusiasm of its adherents. A change of belief arises ... from the occurrence of circumstances which incline the majority of the world to hear with favour theories which, at one time, men of common sense derided as absurdities, or distrusted as paradoxes."102 This was true of Benthamism early in the last century lOlfifoot, English Law and Its Background (1932), p. 209. 102Dieey, op. cit. supa note 87, at p. 23.

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and is equally true of Keynes's views today. The general public may not appreciate the technical refinements of Keynes's General Theory, but they understand that it is impossible in Britain's present-day economic condition to continue with collective laissezfaire as we know it. The period of legislative quiescence in labour law is bound to end for much the same reasons that replaced legislative quiescence by Benthamism in the 'thirties of the last century. The reasons which prevailed then were summarized by Dicey 103 as: (a) the rapid change in the social condition of England between 1800 and 1830; (b) the increasing unsuitability of unchanging institutions for a quickly developing society; (c) the lapse of time obliterating the memories of the French Revolution; (d) the existence of the Benthamite school. If you substitute the new dates and replace the reference to the French Revolution by one to the Great Depression of the 1930's and insert Keynes's name for that of Bentham, you get a picture of the forces which are pushing today against the institutional framework of industrial relations. The question arises then as to where we are likely to go from here and what part law has to play in industrial relations. It is probably fair to say that in "this borderland of rich, almost virgin, soil" 104 the law is concerned with formal justice while economics is concerned with the substance of the matter. 105 English lawyers have never shown more than a Heeting interest in the teaching of the economists, and if they accepted guidance at all from the economists, it was generally some out-of-date economic theory which was perpetuated in legal judgments. 106 The classical laissezfaire approach to economic problems was accepted by judges long after it had been abandoned in its original purity by the majority of economists. Those judges who recognized that they could not extend the doctrine of judicial knowledge to economics preferred to rely on a narrow formalism where cases with economic implica1osJbia., p. 112.

104Parry, op. cit. supra note 86, at p. 183. lO~Berolzheimer, II System der Rechts und Wirtscha~sphilosophie, p. viii, quoted in 24 Harv. Law Rev. 604. t06Parry, supra note 86, at p. 195.

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tions were decided on purely legal grounds without any attempt being made to lift the veil behind which the economic realities were hiding. Of course there is some merit in this approach. It is not the function of the judiciary to "pronounce as between conflicting theories of political economy."107 This is the responsibility of the legislature and as far as industrial relations and wage policy in particular are concerned, the legislature has been remiss in not offering clear guidance to the judiciary and to the country as a whole as to the direction in which public interest points. Since the legislature was not able to shelve responsibility on the judiciary, it fathered rather promiscuously a host of semi-judicial tribunals who were given responsibility for dealing with wage disputes. This was the coward's way out; a tribunal can no more pronounce on what wages are "proper" or "fair" for a particular trade or occupation without guidance on the underlying principles than a court of law could pronounce on a murder charge in the absence of an accepted definition of what constitutes murder. 108 Mere emphasis on procedure, on the constitution of the tribunals, on the way in which disputes are referred to them, does not make up for the absence of principles.109 It has been said of law that it is more important that it should be certain than that it should be fair and this applies even more so to the basic principles of wage policy. The trend of progress must lie therefore in replacing some of the normative aspects of collective agreements by legislation or, if you like, make the collective bargainers into subordinate legislators, authorized to set norms but within a general framework of statutory rules and subject to the ultra vires principle. There is nothing wrong in legislative powers being delegated to semi-autonomous industrial bodies110 and this form of functional democracy may well work, but it is wrong that decisions which may affect outsiders should be left to the unfettered discretion of sectional interests. If we wish to maintain the principle of collective bargaining, and on balance we probably ought to, we must think of it as one stage in a 107Lord Finlay in Crown Milling Co. v. King, [1927] A.C. 394. lOSWootton, op. cit. supra note 76, at p. 170. l09Kahn-Freund, op. cit. supra note 81, at p. 262. llOKahn-Freund, supra note 91 , at p. 251.

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hierarchy of norms, 111 ranging from the basic norm (the ultimate parliamentary responsibility) down to the individual contract of employment. In this way the individual contract of employment would emerge as the final stage in a process of individualization or specification of a basic norm. The policy advocated here, which might be called the socialization of the collective bargain, may be criticized on the grounds that it places too much power into the hands of the state. The fact of the matter is, of course, that the state has already got this power and has been prepared to use it in other spheres. Indeed, it has been suggested that the Keynesian revolution in economic thought would not have taken place if it had not been for the enhanced power and functions of the state. 112 Where the political or economic safety of the country demands the nationalization of particular industries, this step is taken, and once the dust of controversy has settled the decision is habitually accepted by all shades of political opinion. What is suggested here is that the economic effects of sectional wage bargains are so far-reaching that they cannot be left to the decisions of small groups responsible to their own members only. The period of collective laissez-faire has come to the end of its usefulness. Its successor must be either outright collectivism taking the form of socialism or fascism, or the introduction of the rule of law in industrial relations. 113

IV Wages Policy, if it is to be formulated, cannot be considered in a vacuum. 114 for a national wages policy is self-evident in the prevailing conditions, it is more difficult to envisage clearly what shape the policy could take, how it should be implemented, and what means of enforcement should be employed. There is no

WHILE THE NEED

tllThe similarity of this approach to Kelsen's views (General Theory of Law and State) is obvious. 112UJam, Philosophical Foundations of English Socialism (1951), p. 135. 113friedmann, Legal Theory (1947), p. 370. lHJack, supra note 4, at p. 587.

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experience in this country that might be utilizedur, and, while a number of European countries has been operating wages policies for some years, 116 it is impracticable to transplant into an alien soil a mechanism which has to be delicately tuned to the local environment of traditions, of industrial folklore, and of local rules of law. The policy must therefore be thought out from its basic principles, bearing in mind the framework of industrial relations in which it will have to operate. The point which is made by all writers on the subject is that a wages policy cannot be discussed in isolation.117 Wages form part of the national income and a wages policy can therefore not be separated from an incomes policy. While this may be true up to a point, especially with regard to the political and psychological repercussions of a chosen policy, it is not really relevant economically. Of all incomes, wages (including salaries) represent the most important element in costs of production. Other incomes, particularly profits, are largely residual and if we were to curb in8ation through an effective wages policy, the new economic climate would by itself take care of excessive profits. There may well exist need for an interest and rent policy, but these should not raise particular difficulties because .the monetary authorities have enough experience in manipulating interest rates-the days of rent control are still within vivid memory. What trade unions and others are entitled to expect from the Government is that a wages policy should not be sought for its own sake (that is, to clip the wings of the trade unions), but rather as one part of a true incomes policy which aims at an over-all increase in the national llliThere are, however, some most useful comments in the Third Report of the Council on Prices, Productivity and Incomes (1959), p. vi. 116For interesting descriptions of these policies see for Sweden: Faxen, ''The Collective Agreements System and Wage Determination," 42 Skandinaviska Ban• ken (Jan., 1961), pp. l et seq., and Roberts, op. cit. supra note 2, at pp. 83 et seq. For Norway : Inman, "Post-war Wages Policy in Norway" (1950), 12 Bull. 0~. Inst. Stat. 197. For Holland : Pels, "Development of Wages Policy in the Netherlands," ibid., p. 218, and Roberts, ibid., pp. ll8 et seq. General surveys are found in Reynolds and Taft, op. cit. supra note 79, and Johnston, ''Wag~ Policies Abroad" (1950), 5 Scot. Jo. Pol. Econ. 126. 117De Givry, supra note 98, at p. 504. Fogarty, op. cit. supra note 63, at p. 227. This fact is recognized also by the Chancellor's recent White Paper, Incomes Policy: The Next Step, Cmd. 1626 (1962).

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income by utilizing fully the growth potential of the economy. In other words, a national wages policy should be merely one of the weapons in the armoury of a government intent on promoting the welfare of the community as a whole and prepared to employ towards this end all the monetary and fiscal weapons at their disposal. In the preceding part of this paper the opinion was expressed that the contract of employment between the individual employee and his employer was but the final stage in a hierarchy of norms. The basic norm for this purpose is the decision as to the proportion of the projected national income which should be available for the payment of wages and salaries. This decision must be coupled with a further one, namely, on what principles the total should be divided with respect to particular industries and jobs. Both these decisions are basically political ones involving issues generally subsumed under the headings of "social justice," "fairness," and so on, and as such must be the prerogative of Parliament.11 8 This body is not, however, competent to undertake the detailed task of splitting up the wage total, but once it has decided on the principles to be followed, it may safely leave their interpretation and application to others.119 The interpretation of the basic norm on which the wages policy rests requires a high-powered body, whose composition will give it sufficient weight with public opinion. This body can either be a technocratic commission on the lines of the French Commissariat du Plan or a "partisan" body such as the National Economic Development Council (N.E.D.C.) 120 set up in Britain in 1961. 118Burchardt, The Economics of Full Employment (1944), p. 71. 119Robson, Justice and Administrative Law (1947), p. 484. 120The N.E.D.C. (popularly known as Neddy) consists of representatives of employers (including the nationalized industries) and of trade union representatives under the chairmanshif of the Chancellor of the Exchequer who is assisted by a number of ministeria colleagues. The council is assisted by a full-time secretariat under a director whose task it is to do the economic and statistical homework for the council. The precise functions of the council are ill-defined, but its main purpose appears to be that of creating a climate of acceptance for decisions to be taken by the Chancellor, though the council is independent and may criticize ministerial decisions. The reader should bear in mind that the functions allocated to the council in this paper are not in fact its present functions, but represent merely suggestions of the author as to how the machinery already in existence could be more usefully employed.

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While a technocratic body may be more efficient in that its members need not fear being stabbed in the back by dissatisfied "followers" as may well be the fate of "responsible" employers and trade union officials serving on the N.E.D.C., the tradition in this country, leaning as it does towards collective bargaining, makes N.E.D .C. the more acceptable alternative and the one more in line with British traditions of functional democracy. If we decide to employ a body such as N .E.D.C. it is absolutely essential that it enjoy the services of trained economists and statisticians to undertake the many fact-finding surveys that will be needed before the second stage in our hierarchy of norms may be completed. The task of N .E.D.C. may be particularly difficult during the early years of the operation of the policy because at that time it will be necessary to reform the existing wages structure which, as recent events have shown, has lost all semblance of fairness. Priorities may have to be set 121 and any additions to the total wage bill that are at the disposal of the council may have to be used to remove unfair differentials, particularly by benefiting those sections of the community, such as public servants, who have in the past fallen behind in the wages race. The N.E.D.C. may also have to consider the incomes of pensioners in relation to those of people of working age, since the cost of paying industrial pensions should be treated as part of the total industrial wages bill, so that giving more to pensioners will inevitably lead to a smaller slice of the cake being left for the workers. Once this preliminary task has been achieved, the annual job of the N.E.D.C . will be that of allocating parts of the total wages bill to particular industries. This will have to be done in the light of the general expansion plan for the economy since the system of t:110n July 26, 1962, the Prime Minister announced the formation of another body, the National Income Commission (already nicknamed Nicky) whose task will be to pronounce on wage claims referred to it by the government. While the commission will have no compulsory powers, its task appears to be that of enlightening public opinion on the national economic implications of particular wage claims, thus performing a function which successive arbitration boards have refused to perform. It is evidently hoped that if a strongly constituted commission officially states that a particular claim is not justified within the framework of the general wages structure in the country, this may give courage to employers, arbitrators, and perhaps even to H.M. Government to resist it.

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distribution must be related to the general investment target for the different industries of the country.122 In the same way in which the basic norm (laid down by Parliament) contained the principles on which the secondary norm that of N.E.D.C.) would he based, so this norm for its part must contain the principles on which the next lower norm will rest. The tertiary norm will govern the assessment of wages within a particular industry and, following our preference for using wellestablished bodies for new tasks, it is suggested that joint industrial councils could well fill the need. These councils were set up following on the recommendations of the First Whitley Report in 1917 .123 At that time the intention was to create a network of these councils throughout the whole of British industry, hut in fact they have not spread much outside the field of the public services (central and local government). Each joint industrial council consists of an equal number of employers' and employees' representatives, together with an independent chairman who has no vote. Their main purpose is that of providing a permanent forum for collective bargaining and for the discussion of differences arising out of the interpretation of collective agreements. It is our view that these councils will be highly suitable bodies for determining the whole gamut of wage rates for the industry concerned. If they can simplify the wages structure, by creating only a limited number of grades and scales into which particular skills can be fitted, the better. From time to time a skill might he upgraded or downgraded in accordance with technological changes in the work content. One of the main in8ationary in8uences in recent years has been the "wages drift" which means the tendency of earnings to rise at a much faster rate than wages. This may be caused by some employers offering higher rates of pay than the official ones so as to attract scarce labour or it may he due to the increasing importance of overtime earnings. The higher earnings are then used as the thin end of the wedge to obtain wage increases by merging bonuses, etc., into the wage rate or by securing higher wages for workers in 122Fogarty, op. cit. supra note 63, at p. 253. 128Cmd. 8606. For a detailed discussion of the proposals see Sharp, Industrial

Conciliation and Arbitration in Great Britain (1950), chap.

IV.

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areas where earnings have not risen faster than wage rates. It is not easy to devise a fool-proof system which will avoid the wages drift, but the joint industrial councils could achieve something by fixing standard rates of wages, rather than minimum wages, and by laying down general rules as to when and for what reasons premia above the basic rates may be paid. 124 One of the main contributing factors to the wages drift has been the prevalence of overtime work in British industry. One commentator on the labour scene 125 has recently pointed out that millions of hours of work are unnecessarily added to working time each week solely for the purpose of making the wage packet more acceptable. A simple means of discouraging the excessive use of overtime would be a reduction of the margin of overtime rates compared with normal rates, while replacing this potential loss of earnings by additional premia for exceeding the scheduled output during normal working hours. One thing which must be avoided on all counts is the linking of industrial wage rates with productivity within that industry. 1 21> This method has been responsible for the chaotic and unfair structure of wages which prevails at present and has heavily penalized workers in industries and services where productivity either cannot increase or cannot be measured. 127 The correct place for the productivity-wage equation is at the N.E.D.C. level since the total wages bill of the community must not be allowed to rise faster than the productivity of the economy as a whole. Productivity within an industry or a particular firm depends only partially on the efforts of its labour force; it depends equally on the skill of management, the provision of up-to-date equipment, and the effi124"••• A fair wage must he not only no lower than it should he, but also no higher than it should he.'' Final Report of the Court of Inquiry into a Dispute between the British Transport Commission and the National Union of Railwaymen, Cmd. 9372 (1955), para. 60, p. 21. 125Clegg, Implications of the Shorter Working Week for Management (1962). 126 For an excellent discussion of the relationship between productivity and wages see the First Report of the Council on Prices, Productivity and Incomes (1958), paras. 143-45, pp. 43-44. 1 2 7"The idea that it is the organised worker in an industry who must always have the main benefits of rising productivity in that industry is, indeed, based on too static a conception of the economic system.'' Dennison, op. cit. supra note 66, at p. 25.

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ciency of the many services both private and public rendered to the firm by outside bodies. It may be contended that the system described here will deprive the individual contract of employment of all its importance since the parties to it will have no say in its terms. To some extent this situation prevails already as even today most wage rates are "administered rates," 128 but it is clearly wrong to belittle the function of the contract of employment. For this reason if haggling over wages has ceased, more attention may be paid to the non-financial aspects of the contract, and while we do not visualize a situation where each worker will bargain independently of his mates for his holidays, seniority rights, pensions, working conditions, and so on, there will exist much scope for constructive negotiation at factory level between management and local union officials. 129 Furthermore, decisions will have to be taken at local level as to the grading of particular workers and as to the premia allowable in the light of local conditions. What changes may then result in English labour law if the above proposals were to be accepted? I suggest the following: (a) Since it will be absolutely essential that wage bargains are kept, collective agreements (represented by the decisions of the appropriate joint industrial council) will have to be made legally binding on both sides. On the trade union side this will mean the incorporation of trade unions in order to give them full contractual capacity. Trade unions themselves may find it necessary to alter the structure of their movement and to reorganize on industrial lines which will simplify the bargaining process. (b) The need for many of the existing safeguards for the weaker sections of the national working force will disappear. Since joint industrial councils will fix wages, there does not exist any need for wages councils and these may be converted into joint industrial councils. 128Reynolds and Taft, op. cit. supra note 79, at p. 7. 1291n this context we should recall the Prime Minister's recent promise that legislation will be introduced to compel employers to provide their employees with written contracts of service, thus specifying clearly the rights and duties of each employee.

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(c) The whole structure of industrial arbitration will have to be revised. Provision must be made for arbitration on wage decisions at each of the lower levels of the hierarchy of wage norms in case the normal process of bargaining breaks down. The basic norm may be disregarded for this purpose since only Parliament can determine it and, if it fails to do so, this clearly means that Parliament does not desire a national wages policy. If the N.E.D.C. fails to agree on the secondary wage norm, arbitration ought to be compulsory and, as we have suggested at another place,130 the proper body would be a committee of the Privy Council working on the lines of the Judicial Committee. There are enough statesmen-employers and statesmen-trade unionists in the House of Lords to staff the committee (Economic Committee?) and legislation may be passed to create a new office of Economic Lord to match that of the existing Law Lords. Failure to agree at the industrial level must also lead to compulsory arbitration, perhaps by a strengthened Industrial Court which for this purpose should be given the powers and attributes of a division of the High Court. Members of this Court may then be sent on circuit to deal with local disputes arising out of differences between individual employers and local trade union committees. It will be pointless, however, to introduce compulsory arbitration unless some criteria are adopted for the guidance of the arbitrators.131 The nature of these criteria must depend on the level in the hierarchy of wage norms at which the arbitration is taking place. If arbitrators are to cease to be the bogymen of industrial negotiation, the faceless men who are blamed by the government for inflationary awards and by the trade unions for meanness and lack of understanding, the guidance given to them must be clear and beyond doubt. 132 It is certainly not enough to expect them to follow the dictates of "national policy" in circumstances where even 130Frank, supra note 6, at p. 135. 131for details see Frank, "The State and Industrial Arbitration in the United Kingdom" (1958-59), 19 La. Law. Rev. 617, at p. 635. 1S2The new National Income Commission may help here, provided of course that it is satisfactorily launched.

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the keenest students of public affairs fail to understand what national policy is, usually because government spokesmen hide their own confusion as to policy behind a smokescreen of pretentious verbiage. While observers of the labour scene are clear in their own minds that rule-less arbitration is no solution, it may not be easy to overcome the suspicion of trade unions that the fixing of clear arbitration criteria will mean a loss of independence for arbitrators. This is, of course, nonsense since no one doubts the independence of the courts of law, notwithstanding the fact that they are guided by strict rules both as to procedure and as to substance. Arbitration is not suitable for what are in effect political decisions namely the distribution of the national product and the calculation of the share going to labour. As has been pointed out already, this decision must remain with Parliament. As far as the remaining wage norms are concerned, the choice of wage criteria in each case must rest with the next higher level of the hierarchy. Thus, for instance, the N.E.D.C. having decided on the distribution of the total wages bill among the industries will also determine the general criteria to be followed by the various joint industrial councils in deciding on specific wage rates. If a joint industrial council cannot do so, the issue is one which is clearly arbitrable since it involves the application of basic principles to a given factual situation. In order to enable arbitrators to perform their functions properly, it is essential that they be provided with all the essential information. As a result of a promise made by the government, 133 H. M. Stationery Office has now started the publication of a regular series of statistics of wage rates, earnings, hours of work, and so on.134 (d) The most important and certainly the most difficult legal problem will be that of enforcement. By making collective agreements legally enforceable some safeguards will be obtained against one-sided breaches of the policy. The main danger to a national 133Jncomes Policy: The Next Step, Cmd. 1626 (1962), para. 12, p. 5. 134The first issue appeared in April, 1962. A similar arrangement exists already for the civil service where a Pay Research Unit was set up as a result of the 1955 Report of the Royal Commission on the Civil Service.

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wages policy does not come, however, from one-sided breaches, b.u t rather from concerted breaches where a particular employer connives with a trade union in flouting the national policy. The normal machinery of the law is not competent to deal with these cases135 and any attempt to employ the criminal law for this purpose would be quite futile. The only possible solution lies in the use of economic sanctions by the government. Professor Fogarty has suggested, 136 for instance, the use of the pay-as-you-earn system of income tax collection where any payments above standard rates would be treated as if the employer had underpaid tax. Alternatively, a pay-roll tax may be devised which will tax above-standard payments at specially high rates, or national insurance contributions may be altered so as to soak up surplus spending power. The Economist has suggested that the employer's share in the contributions might be lowered and that of the employee raised, thus both absorbing additional spending power and also offsetting the increase in costs resulting from the excessive wage payment. All these schemes, though workable in theory, may be rather clumsy in practice and our own preference is for the use of the profits tax to discourage overpayments. The Chancellor can also use the powers at his disposal for varying customs duties and, by lowering duties on imports competing with those of the industry where the offending wage increases have been made, prevent the industry from passing on the higher costs to the consumers. The question may well be asked at this stage of the discussion as to what the chances are of a policy of the kind described being implemented in Britain. The pessimists will probably agree with Mr. Wigham's belief that "there is no practical way of dealing with wages in full employment in a relatively free country." 187 It is true that we lack precedents. All that British governments have attempted so far have been various "wage pauses" which certainly lS5''Jn Britain an enforcement agency with le§al authority on the Dutch or American model would not be tolerated." Clegg, 'A Policy for Incomes," Lloyds Bank Rev. (April, 1962), p. 13. 1360p. cit. supra note 63, at p. 210. 187\Vigham, Trade Unions (1956), p. 251. Roberts, op. cit. supra note 81, at p. 377.

98 / CURRENT LAW AND SOCIAL PROBLEMS cannot be judge to have been successful. In any case, a wages pause is not a wages policy because by freezing (if successful) existing wage rates, the authorities fail to come to grips with the real problem, namely the inequities of the existing wages structure. A national wages policy can only be successful if its basic premises are accepted. If the general public believe that there exists a case for having such a policy, the biggest hurdle has been overcome and the details of the policy will present a lesser, though by no means insignificant, problem. Most writers suggest that a national wages policy cannot be implemented without the full co-operation of the trade unions. We do not believe that this is true. 138 It will certainly be difficult to secure the consent of the existing trade union leaders to a policy which will so significantly affect their own position and prospects, 139 but we have had in British political life many changes which were pushed through against the opposition of interested parties and the present change is not really that different from the many that have preceded it. It is the general electorate who have to be persuaded that sectional wage bargaining is as outdated today as the horse and buggy. If the electorate are prepared to agree to this new approach to wage-fixing, Britain may yet advance economically without being unjust to any one section of its working community. It has also been argued that if the government succeeds in the prevention of inflation a formalized wages policy is unnecessary, while if the government fails in this attempt, the policy is doomed to failure from the outset. 140 This is true up to a point since no wages policy can be effectively implemented if continuing in8ation l88"Given the history of industrial relations in this country, it is not surprising that the crushing argument against a national wages policy bas been the pragmatic assertion: it can't happen here." Flanders, supra note 65, at p. 115. 139"It is one of the many paradoxes to which we have grown accustomed that with few exceptions trade union leaders who are generally among the most vocal of economic planners express great indignation at any suggestion that the planning process should interfere in substance with the wage demands which are to be formulated either by themselves or by their members." Jack, supra note 4, at pp. 586--87. HOibid., p. 588. A similar view is also expressed by Guillebaud, op. cit. supra note 44, at p. 19.

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tends to erode real wages, but it overlooks the important fact that a national wages policy is a sine qua non of an effective antiin8ationary drive. If the general public are really interested in having in8ation halted, they must he prepared to accept the implications of a national wages policy. It is essential, however, to impress upon them the effects of unco-ordinated wage increases.141 As long as wage negotiations go on throughout the year, these effects are not fully brought to the surface because it may appear only fair that if group X have already secured a wage increase, group Y, whose economic tasks are similar, shall be treated in a similar fashion. 142 One way of avoiding this is by synchronizing all wage negotiations into a given period of each year so that the total effects of wage settlements will become much clearer. Some of the opposition to a national wages policy may also be overcome if it is shown to rank-and-file union members that when a trade union through a successful wage claim is able to improve the relative position of its members, it does so mainly at the expense of other groups of wage-earners. 143 The proportion of the national income going to labour has been fairly static over a period of time; thus any sectional gains must be at the expense of other workers. 144 Real gains can be secured only by raising the real national income and this presupposes the existence of a national wages policy. The argument presented by no means rules out a gradual increase in the share of the real national income going to labour, since a higher proportion of the overhead costs of the economy (public expenditure) may he charged to non-wage incomes. All that unions are expected to accept is that wages in toto should not rise faster than 141 "The pattern for the annual round of increases is set by one or two key bargains which are then transmitted to other industries by the essentially competitive process of 'coercive comparison.'" Flanders, supra note 65, at p. l 18. 142Third Report of the Council on Prices, Productivity and. Incomes (1959), para. 131, p. 44. 143Guillebaud, op. cit. supra note 44, pp. 2-3. Reynolds and Taft, op. cit. supra note 79, at p. 2. 144"Can one seriously envisage the continuance of a system that leaves the cost of living to be determined by a succession of private bargains'?" Caimcross, "Wage Policy and Inflation" (1950), 5 Scot. Jo. Pol. Econ. 84.

1()()/CURRENT LAW AND SOCIAL PROBLEMS the output of goods and services. 145 If they refuse to assist in the operation of a national wages policy, the government may be compelled to achieve similar results by the much blunter weapons of fiscal and monetary controls.146 These will work, but only at the cost of holding back the growth of the economy, a result which surely is not in the interest of the trade unions or indeed of anyone else. 145Roberts, I46Roberts,

op. cit. supra note 81 (1958), at p. 379. op. cit. supra note 2, p. 159.

Labour Legislation in the Province of Q..uebec By MARIE-LOUIS BEAULIEU*

been stated that labour law has, in general, evolved in a piecemeal fashion. This observation is particularly applicable to the development of Quebec law. Here there has been a pattern of fragmentary legislation, dealing with specific problems which resulted from emerging needs in a rapidly changing society. Thus, the necessity to protect the labouring class and to solve the problems created by the relative disparity between management's and labour's bargaining positions, particularly in the manufacturing industries, led to individual legislation. As a result, for example, there have evolved three general sections of the Collective Agreement Act, each of which appears to he complete in itself-the first two deal with conciliation and the third with arbitration. Therefore, a study of labour legislation in Quebec provides some difficulty, but may be best approached in chronological order. IT HAS OFTEN

I 190 I was marked by the adoption of provincial law dealing with matters relating to Law Concerning Conciliation and Arbitration to Regulate Industrial Disputes, briefly called

THE YEAR

the first1 important trade disputes: the Councils in Order the Quebec Trade

"'M.-L. Beaulieu, Q.C., B.A., L.Ph., LL.L., LL.D., Professor in the Faculty of Law, Laval University. 11n fact the first law approved by the Quebec legislature concerning relations between management and labour was the Acte des Manufactures de 1885 (Manufacturers Act of 1885). This is the forerunner of the present Industrial and Commercial Establishments Act, R.S.Q. 1941, c. 175 (as amended). CulUU!NT I.Aw AND SocIAL PROBLEMS,

Vol. Ill, 1963

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Disputes Act. 2 The inspiration for this law came partly from the French law of December 27, 1892, but mostly from legislation in New Zealand passed in 1894. This latter Act was entitled An Act to make Better Provision for Prevention and Settlement of Trade Disputes, and it introduced obligatory conciliation and arbitration in this British Dominion.3 The French system's greatest influence was that recourse to conciliators and arbitrators was made optional, a position contrary to that in New Zealand. However, the main features of the latter country's system were adopted. This Act indicates the scope of its application by first defining · lathe terms "employer, " "employee, " an d "d'1spute." N ext, the leg1s tion requires that no litigation or dispute be submitted to a council of conciliation or arbitration unless there are at least ten employees interested in such litigation or dispute, a feature which greatly limits the Act's application. It is also to be noted that all arbitrations are no longer made by virtue of the Quebec Trade Disputes Act since the definition of the word "dispute" in section 4 of the Act limits its application to certain enumerated matters, none of which relate to the expanding features of modern collective agreements.• 2Now R.S.Q. 1941, c. 167 (as amended). 8This became the Industrial Conciliation and Arbitration Act of 1900. •S. 4 of this Act reads: "4. A claim or dispute under this Act shall include any of the following matters as to which there is a disagreement between any employer and his employees: "( l) The price to be paid for work done, or in the course of being done, whether such disagreement has arisen with respect to wages, or to the hours or times of working; "(2) Damage done to work, delay in finishing the same, finishing the same otherwise than in the good and workmanlike manner or according to agreement, or the nature or quality of materials supplied to employees; "(3) The price to be paid for extracting any mineral or other substance from a mine or quarry, or the allowances, if any, to be made for lands, refuse, faults or other causes whereby the extraction thereof is impeded; "( 4) The performance or non-performance of any written or verbal stipulation or agx:eement; "(5) The insufficient or unwholesome food or stores supplied to employees where there is an agreement to victual them or to supply them with provisions or stores of any kind; "(6) Ill-ventilated or dangerous places in mines, or insanitary rooms in which work is being performed, or want of necessary conveniences in connection with such rooms or places; "(7) The dismissal or employment under agreement of any employee or number of employees; "(8) The dismissal of an employee or employees for his or their connection with any trade or labour organization."

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The arbitration council, which is established by the Act, consists of three members, Canadian citizens of full age, appointed by the Minister.5 One of these members is recommended by the employees who are parties to the dispute, another by the employer, and the third, who must be both impartial and extremely competent in his position as president of the council, is recommended by the two first parties. If they do not agree on the choice of that third arbitrator, the Minister is required to appoint a person who is not personally connected with or interested in a similar trade or industry and who does not seem, on the basis of his occupation, affairs, or any other circumstance, to favour either employer or employee. Therefore, impartiality is a basic requisite for the third arbitrator only. With such a system, he is the only one to act as a real arbitrator; the two others are merely spokesmen for their nominators. As a result conciliation is generally preferred to arbitration. In its general outline, this Act successively provides for mediation, conciliation, and arbitration, as methods of settling disputes. The parties are not, however, obliged either to meet the mediator or to organize a council for conciliation or arbitration. The legislation further provides that conscience and equity shall be the basic norms on which the decision of the arbitration councils shall be anchored. Further, such decisions do not bind the parties unless they have subscribed by written agreement to do so; this process being similar to that envisaged in the case of a compromise under chapter Lxxxm of the Civil Code of Procedure (arts. 1431-44) whereby the parties agree to respect the arbitration sentence.

II of importance in Quebec is the Professional Syndicates Act which dates back to 1924.6 Its first division deals with the right of association as such and is derived from the French law of A SECOND ACT

51n connection with these provisions on arbitration, it is to be noted that the Labour Relations Act, R.S.Q. 1941, c. 162A (as amended), and the Public Services Employees Disputes Act, Stat. Que. 1944, c. 31 (as amended), use the Trade Disputes Act as their pattern for arbitration provisions. 6R.S.Q. 1941, c. 162 (as amended).

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1884; similarly, its third division, entitled "Collective Labour Agreements," is partly inspired by the French law of 1919. It must be noted, however, that many of the main aspects of these French laws have been discarded in the Quebec legislation. This law, which is closely related to the existence of the National Catholic Syndicates, constitutes one of the major successes in the field of labour legislation and has greatly influenced the development of all such laws. This law does not pretend to be a general law of syndicalism; its exclusive concern is with those unions who subscribe to the philosophy of groups such as the National Catholic Syndicates and the National Syndicates. In short, the central purpose of the threefold structure of this law is to guide the Confederation of the Catholic Workers of Canada, which has approximately 100,000 members, divided into 15 federations of some 450 syndicates. Therefore the unions affiliated with the American Federation of Labor or with the Canadian Labour Congress (Congres du Travail du Canada) do not utilize this legislation because they are opposed to its central feature, the incorporation of unions. The purpose of this Act is to permit any twenty Canadian citizens7 with identical professions to sign a memorandum setting forth their intention to form a professional syndicate and receive in return the benefits of corporate capacity. To accomplish this end, the authorization of the administration, given through the Provincial Secretary, is required. 8 The resulting syndicate is a voluntary association having civil personality, freedom of entry to and withdrawal from which is recognized. The Act also permits the federation of such locals into unions and, further, the confederation of such unions. The main feature remains, however, the ability to incorporate and to carry on the affairs of the union in this capacity.9 7"Capacity" is the basis of this requirement, although there are special sections governing minors and married women. Sfo. France and in the Quebec system of co-o~tive syndicates, the only formality required for the formation of a professional syndicate is the deposit of a memorandum, a system slightlt different from the above. 90ne of the most .controversia legal questions relating to labour matters is that dealing with the problem as to whether or not syndicates should be obliged to

LABOUR LEGISLATION IN THE PROVINCE OF QUEBEC / } 05

The third division of this Act deals with collective labour agreements, the main feature of which is that any negotiated agreement is only binding on the member at his option. The syndicates incorporated under this law are the only ones to be able to sign such a collective agreement which obligates its members and gives rise to all the rights and recourses established by the law for the enforcement of such obligations. These unions enjoy the attribute of civil personality and may exercise all rights of action arising out of such agreement in favour of their members.

III 1934 the Quebec legislature passed La Loi Arcand10 or, as it is now called, the Collective Agreement Act.11 This statute, which was enacted by the Taschereau Government to appease the labour vote on the eve of what was considered to be a dangerous election, introduced a principle of labour law which was new to Canada: the extension of certain terms of a collective agreement to a whole IN

incorporate or, in other words, be forced to acquire a civil personality. Legislators refused to require an obligatory incorporation in 1924; but from 1935 to 1938 the problem continued to be discussed, being the object of syndicates' claims and debates in the newspapers and in the political field. It was said that syndicates in order to answer for their acts before the courts were necessarily obliged to have the capacity required by law for a party to a case. This last aspect of the problem was accepted by the Union Nationale Government, which in 1938 voted the law promoting the exercise of certain rights. At the time of the 1941 revision, the law of 1938 oecame section 8 of the Law Concerning Certain Special Matters in Relation to Procedure. Under this legislation, in any recourses to the courts provided by provincial law, the summoning of "all groups of persons associated for a common pursuit of industrial, commercial or professional advantages in this Province, and which does not possess a recognized collective civil personality and is not a society in the wording of the Code, can be affected through our Courts by summoning one of the officers of the bureau of this group, or as a collectivity under its ordinary name. The assignation is valid for all the members and the judgments are enforceable under all property, moveable or immoveable, belonging to the group." What is the scope of this legislation'? Its object is not to incorporate the group or its members, nor to confer upon it a civil personality. The text has a limiteCrsuasive force of the matter exhibited [i.e., placards]? •.. To compel by the lawful effects of such persuasion • . . is a normal incident of industrial competition." 25See supra notes 4 and 20. 26Rand J. in the Aristocratic Case, supra note IO, at p. 789, commented that an interpretation of s. 366(2) which excluded persuasion or influencing by the force of rational appeal would be "unwarrantably restrictive." 271n 1876 the original of the present s. 366 was enacted by Stat. Can. 1876, c. 37, which was modelled on s. 7 of the Conspiracy and Protection of Property Act enacted in England the previous year by 38 & 39 Viet., c. 86 (1875) . The proviso clause contained in the or!··nal statute appeared in R.S.C. I 886, c. I 73, s. 12, but was inexplicably drop in 1892 when the criminal law was codified, and it was not reintroduced unti 1934 by Stat. Can. 1934, c. 47, s. 12. The first reported case after the restoration of the proviso was R. v. Carruthers (1946), 86 Can. C.C. 247 (Ont. Co. Ct;) .

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strenuous lobbying for its passage by the forces of organized labour,28 the courts, with few exceptions,29 have adopted the view that attendance for the purpose of obtaining or communicating information does not include peaceful persuasion30 and if that view continues to prevail the cause of peaceful picketing will derive little or no benefit from the so-called "saving" clause. This will not matter, of course, so long as peaceful picketing (and hereafter this term connotes peaceful persuasion) is "saved" by section 366(l)(f), that is, even though the picketing constitutes "watching or besetting" under clause ( 1)Cf) it is not a watching or besetting which is "wrongful and without lawful authority." There is even a further possibility whereby peaceful picketing may be construed as not coming within the prohibition of clause (l)(f), that is, that picketing, so long as it is peaceful, does not constitute "watching or besetting" at all, wrongful or otherwise, and accordingly the clause has no application in any event. On this view peaceful persuasion is treated exactly like purely informational picketing, if there is such a thing, and the effect is the same as if it too were included, expressly or by implication, in the saving clause reserved for the latter.81 On either of these views all peaceful picketing, whether purely informational or whether intended to persuade, would be non-criminal whether there is a special saving clause or not. Let us consider the question whether peaceful picketing is "wrongful and without lawful authority" assuming that such picketing amounts to "watching or besetting" within the meaning of section 366(l)(f). This question has already been fully canvassed by Professor Finkelman32 and any detailed discussion of the relevant cases and statutes would be superfluous in this article. The background of the problem may be briefly stated. The model 28See Finkehnan, supra note 22, at p. 84. 29R. v. Carruthers, supra note 27; semble, R. v. Burns (1903), 2 O.W.R. I I I 5 (Co. Ct.); and see view of Rand J., supra note 24. 30Applying the decision of the English Court of Appeal in J. Lyons & Sons v. Wilkins, [1899] I Ch. 255. See Finlcelman, supra note 22, at pp. 91, IOI. 81Jt is probably too late in the day to press the view that peaceful picketing does not constitute watching or besetting even though these latter terms, and particularly ''besetting," have a sinister and hostile connotation in both normal parlance and in the context of the other provisions of s. 366. The courts have, however, invariably considered all picketing to be a form of watching or besetting; see supra note 21. 82Supra note 22.

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for the present provisions of section 366 of the Criminal Code was furnished by section 7 of the Conspiracy and Protection of Property Act, passed in 1875,33 which with insignificant variations in wording is the same as section 366(l)(f), (2), of the Criminal Code, and what is meant by "wrongful and without lawful authority" under these statutes depends on which one of two theoretically irreconcilable cases purporting to interpret that expression in the English Act is followed. These cases,]. Lyons & Sons v. Wilkins, 8' decided in 1899, and Ward, Lock and Co. (Ltd.) v. Operative Printers' Assistants' Society, 35 decided in 1906, both dealt with picketing which was conducted without violence, intimidation, or threats but which admittedly had the object of persuading workers to abstain from working for the plaintiff employers. The Lyons Case, using a breach of section 7 of the English statute as a basis, found that the picketing was civilly actionable whereas the Ward, Lock Case found that the picketing was not in breach of the statute and was not actionable. The gist of the Lyons Case was that all picketing was "wrongful," because it per se constituted a common law nuisance, and unless it came within the saving clause as "only obtaining or communicating information" it was criminal and actionable.36 It then held that inasmuch as the picketing was carried on with a view to persuade it could not be said to be only for the purpose of obtaining or conveying information and hence the picketing was in breach of the statute. 37 On the other hand, the gist of the Ward, Lock Case38 was that picketing was not "wrongful" within the meaning of the statute unless there was evidence that it constituted a nuisance in fact, or some nominate tort or crime such as trespass or assault, independently of the statute. The court held that in the circumstances there was no breach of the statute because there was "a complete absence of evidence of anything in 3338 & 39 Viet., c. 86. 84(1899] I Ch. 255 CC.A.). ar.(1906), 22 T.L.R. 327 CC.A.). 86Per Lindley and Chitty L.JJ., [1899] I Ch. 255, at pp. 267, 271. 87Jbid., per Lindley, Chitty, and Vaugham Williams L.JJ. See supra note 30. See also Lindley L.J. in earlier proceedings in same action, [1896] I Ch. 818, at pp. 825-26. 38(1906), 22 T.L.R. 327 CC.A.).

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the nature of picketing or besetting which could constitute a nuisance [and] no suggestion ... that any annoyance or molestation took place."39 According to the Ward, Lock Case, whether picketing is "wrongful and without lawful authority," and hence criminal, depends on the manner in which it is conducted and not on its purpose, and so long as it is carried on peacefully, that is, so long as it does not constitute an actual nuisance or involve violence, intimidation, obstruction, and so on, it is immaterial that its purpose is to persuade. 40 The fundamental difference between the two cases can be summarized thusly. The Lyons Case, for all practical purposes, makes all picketing illegal under section 366, however peaceful it may be, because the saving clause will, in practice, never be applicable and no other basis of justification seems available, at least so far as trade unions are concerned.41 The Ward, Lock Case, on the other hand, indicates that picketing is not a crime under section 366 unless it amounts to an actual nuisance or is akin to molestation or harassment, and therefore peaceful picketing, whether to persuade or not, is not an offence under the statute. On this view it is immaterial how restrictively the saving clause is interpreted or, indeed, whether such clause appears at all. Canadian courts, both in civil and criminal proceedings, have been disposed to follow one or the other of these English decisions in interpreting section 366, and have thus reached diametrically opposite conclusions with respect to the legality or criminality of virtually the same conduct. Thus in R. v. Blachsawl, R. v. Hangsjaa42 Fletcher Moulton, ibid., p. 330. right of plaintiffs to tty to persuade a man to accept and the right of the defendants to try to persuade a man to refuse appear to me to be rights of freedom of individual action equally lawful and equally deserving of the protection of the law, so long as the means employed are lawful and riglit. Both oecome unlawful if the means employed are wrongful. I am therefore of the opinion that in support of the plaintiff's claim with regard to picketing, it must be shown that the defendants, or one of them, were guilty of a wrongful act, i.e., that the picketing constituted an interference with the plaintiff's action wrongful at common law, or, as I think it may accurately be phrased, were guilty of a common law nuisance." Per Fletcher Moulton, ibid., at p. 330. 41At least if the type of justification suggested by ldington J. in Reners v. The King, [1927] 3 D.L.R. 669 (Can. S.C.), at p. 671, is any criterion. The example given by ldington J. is the authority of a sheriff to go very far in discharging his duty-"Even to the extent of besetting or watching a house." 42(1925] 4 D.L.R. 247 (Alta. C.A.). 39Per

4 0"The

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and R. v. Baldassari,43 the Alberta and Ontario courts were faced with almost identical picketing situations. In both cases pickets, two at a time, walked back and forth in front of a movie theatre, distributing hand bills in the first case and carrying placards in the second, announcing a dispute with the theatre managements and asking the public not to patronize the theatres in question. The picketing in both cases was peaceful with no evidence of accosting or interference of any kind. In the Blachsawl Case the Alberta court followed the Lyons decision and predictably, indeed inevitably, found the defendants guilty of wrongfully watching and besetting contrary to clause (l)(f). In the Baldassari Case, Rose C. J. followed the Ward, Lock decision and found that no offence had been committed on the ground that "the defendants were not guilty of disorderly conduct; they did not cause a disturbance ... or impede or incommode peaceable passengers [sic] ... and I do not think that the acts complained of amounted to a common-law nuisance or that there was any publication of a libel."44 Just three years later the British Columbia Court of Appeal45 invoked the Lyons doctrine and affirmed a conviction under clause (l)(f) where two pickets paraded quietly and peacefully for just one hour and the same doctrine has been popularly used by courts to find a breach of the statute upon which to found civil liability.46 It is true that it is possible to reconcile the Lyons and Ward, Lock cases in terms of their results by saying that on the facts the picketing in the former case went beyond peaceful picketing and amounted to an actual nuisance in breach of the statute47 whereas 43(1931] 0.R. 169 (Ont. H.C.). 44Jbid.,atpp. 171-72. 4GR. v. Richards and Woolridge, [1934] 3 D.L.R. 332 (B.C.C.A.). 46See, for example, cases collected by Finkelman, supra note 22, at p. 91 (fn. 113). 471n earlier proceedings based on the same facts and involving an application by the employer for an interlocutory injunction, North J. described defendants' picketing thusly: "I think it would be too strong if I were to say that there was [intimidation]. But the pickets do seem to have carried it rather far : they followed one or two persons actually into the premises of the plaintiff; they stopped another person and searched the bag that he was carrying to see what was in it, and so on; and I do not think it is a case of mere voluntary persuasion." See J. Lyons & Sons v. Wilkins, [1896] 1 Ch. 811, at p. 817.

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in the Ward, Lock Case there was no such evidence of nuisance and accordingly no breach of the statute.48 But this form of reconciliation does not change the fact that in theory or principle the two cases are utterly incompatible. The question is, which of the two should be followed? In England the Ward, Lock Case is deemed to be the binding decision,49 and it is submitted that the Ward, Lock Case should likewise be followed in Canada,GO not as an option or as an alternative to the Lyons Case but to the exclusion of the Lyons Case. Professor Finkelman in an exhaustive and persuasive analysis has amply demonstrated the deficiencies of the Lyons Case,r,i including the fatal one that it is self contradictory and thereby hoist on its own petard.62 The truth of the matter is that watching or besetting, or picketing, conducted peaceably, that is, without violence and intimidation or other wrongful means, was legal at common law and nothing in section 7 of the English statute or section 366 of the Code qualifies or overrides the common law. 113 48See supra note 39. 49fawler v. Kibble, (1922) 1 Ch. 487 (C.A.). IIOThe majority judgment in the one Supreme Court of Canada decision dealing with a criminal prosecution for picketing, Reners v. The King, supra note 41, supports the Ward, Lock decision. Newcombe J., delivering the majority judgment affirming defendant's conviction for a breach of s. 366(I)(f), said, at pp. 679, 682: "I cannot look on his conduct as peaceful picketing, having regard to all the surrounding circumstances .. . [T]he acts with which the appellant is charged were wrongful and unlawful if the watching and besetting in which he, in common with his comrades or associates, was engaged amounted to a nuisance or a trespass or if the men who were watching and besetting constituted an unlawful assembly, and there is evidence as to each of these particulars." (Italics supplied.) Idington J. applied the Lyons doctrine and peremptorily imposed liability. The judgment of the majority was followed in R. v. Carruthers (1946), 86 Can. C.C. 247 (Ont. Co. Ct.). GlSupra note 22. 5 21£, as stated by Lindley and Chitty L.JJ., see supra note 36, all picketing is "wrongful" and tortious because it constitutes a common law nuisance, then picketing "only for the purpose of obtaining or communicatino information" must also be tortious, and although it is not criminal, because of ilie saving clause, it should be actionable or enjoinable civilly. Nevertheless Lindley and Chitty L.JJ. made it clear that if the picketing in that case had been "only for the purpose of obtaining or communicating information" it would not have been actionable. Ergo all picketing does not constitute a common law nuisance and it cannot automatically follow that peaceful picketing is ipso facto tortious and therefore done "wronl?hllly and without lawful authority" as the judges held. fiSSee judgment of Trueman J.A. in Kershaw Theatres v. Reaney, [1937) 4 D.L.R. 162 (Man. C.A.), at p. 172 and at p. 173 where he states: "It appears to me illogical to start with the assumption that the interruption of the power of

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When the Lyons Case came down it was virulently condemned by English public opinion and by lawyers for failing to recognize that the English statute was intended to protect the common law right of peaceful picketing and that the words "wrongfully and without lawful authority" were designed to exclude such picketing from criminality and that the saving proviso was inserted, abundanti cautela, to confirm the right to picket peacefully and persuade others by the communication of information. 54 It is not without significance that in 1906, following shortly after the Ward, Lock Case, the proviso or saving clause in section 7 of the English statute of 1875 was repealed by section 2 of the Trades Dispute Act, 1906,55 and replaced by a saving clause making it lawful to attend at a place "for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from work." The saving clause was so amended in order to free the law from any doubts arising out of the con8ict between the Lyons and Ward, Lock cases but was not understood to change the law. 56 Although this provision of the English statute of 1906 has no counterpart in the Criminal Code it affirms the law as expressed in the Ward, Lock Case as having always been the law, and the common law of peaceful picketing, including persuasion, is equally exempt from criminality in Canada by the qualification "wrongful and without lawful authority" contained in section 366( I )(f); this is confirmed abundanti cautela by section 366(2). An examination of the rest of section 366( I) also reinforces the view that "wrongfully and without lawful authority" relates to the manner of the picketing and that the manner of conducting the picketing must amount to at least a nuisance before it is criminal a man to do as he pleases within the law is prima facie a legal wrong which in every case needs to be justified. The true question is, was the power interrupted by an act which the law deems wrongful? with the practical result that to determine liability one has to concentrate, not upon the effect on the plaintiff, hut upon the quality of the act of the defendant." 54 Trueman J.A. in Kershaw Theatres Ltd. v. Reaney, ibid., at p. 170, quotes an article of Haldane in which he stated: "It is almost impossible in view of this decision to conduct a strike peacefully. To hold what the Court of Appeal held is to make the protection which the section affords to the workman a mere trap." 556 Edw. VII, c. 47 (1906). 56Report of Dunedin Royal Commission on Trade Disputes, 1906, upon which the Trade Disputes Act, 1906, was based.

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under clause (l)(f). The types of conduct variously forbidden in clause (l)(a-e) and clause (l)(g) are as follows: 366(1). Every one who, wrongfully and without lawful authority, ... (a) uses violence .. . (b) intimidates .. . ( c) persistently follows .. . ( d) hides ... or deprives ... property ... (e) •.. follows ... in disorderly manner, on a highway, (f) watches or besets ... (g) blocks or obstructs a highway.

If "watches or besets" includes peaceful picketing then the latter is singularly out of place in a section surrounded by such violent and sinister neighbours. The types of conduct enumerated in clauses (a--e) and (g) differ in degree but not in kind. The common denominators are molestation, either of person or property, and obstruction, and all of the enumerated items of forbidden conduct can be summed up in the word harassment. 'Watches or besets" (and the application of the ejusdem generis rule would seem to be justified) should therefore relate to similar conduct, that is, conduct which is and causes a nuisance in the nature of harassing others whether those others be employers, fellow workers, other tradesmen, persons with whom the employer has a contract, or members of the public generally. No exact line can be drawn to define when picketing becomes a nuisance in this sense, and undoubtedly what constitutes a sufficient nuisance to merit criminal liability will vary with the times and changing climates of labourmanagement relations. GT The difference between harassment and permissible peaceful picketing is perhaps best caught by Rand J. in Williams v. Aristocratic Restaurants,G8 where he distinguishes GTSee statement of Kerwin J. in Williams v. Aristocratic Restaurants (1947) Ltd., [1951] 3 D.L.R. 769 (Can. S.C.), at pp. 785-86: " ... the approach to labour questions has changed materially down through the years.•.. such an approach places workmen and Unions in a position, comparable at least to some extent to that held by employers, and does not relegate them forever, even at common law, to the conditions existing at the time of the ... English Acts of 1824 and 1825 ... or even in 1906, the date of the Ward, Lock decision ..•. Picketing is a form of watching and besetting but that still leaves for decision, in each case, what amounts to a nuisance. Whatever might have been held some years ago, in these days the actions of the appellants did not constitute a nuisance.'' 58(1951] 3 D.L.R. 769.

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between "argumentative and rancorous badgering or importunity and unexpressed sinister suggestiveness" on the one side and "attending to communicate information for the purpose of persuasion by the force of a rational appeal" on the other. 69 The conduct just mentioned is a nuisance and the type of nuisance that section 366(l)(f) has in contemplation, it is submitted, when it speaks of "wrongfully ... besets or watches" as constituting a criminal offence. The Ward, Lock Case60 and section 366( I) itself seem to emphasize that the criminality of picketing lies in the manner in which it is conducted, as distinct from its objects or results, and between peaceable conduct on the one side and what I have termed as harassing conduct on the other. This may be an over-simplification because harassment or molestation can be expressed in different ways, including non-violent ways. The cases involving outright belligerence, intimidation, and "surrounding with hostile intent" ( the dictionary definition of besetting) are simple to decide. How about "peaceful" picketing, in the sense that no violence, intimidation, obstruction, etc., is present or threatened, but which involves the carrying of placards containing libellous and defamatory statements? It is submitted that if the statements really are libellous and defamatory,61 then such conduct constitutes a form of molestation and harassment relating to the manner of picketing within the connotation of "wrongfully besets or watches" in section 366( I )Cf) and is a crime as well as a tort. Similarly picketing, however ostensibly peaceful, carried out for the sole or primary purpose of injuring and causing economic loss to an employer, and not for the purpose of advancing the interests of the union, would qualify as purely a harassing activity, as molestation plain and simple, and should therefore constitute a criminal offence as well as being tortious. On the other hand peaceful picketing in furtherance of an illegal strike called in contravention of provincial labour relations and collective bargaining legislation should not be criminal 59lbid., at p. 789. 60(1909), 22 T .L.R. 327 (C.A.). 61Courts have been prone to label almost any statement libellous unless it consists solely of objective and provable facts. See Carruthers, op. cit. supra note 4, at p. 28, where some examples are collected.

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although it may be held to constitute a tort.62 This is not harassment or molestation as contemplated by section 366(1 )(f) and neither is peaceful picketing which induces a breach of contract. The fact that picketing has caused or is assumed by the courts to have caused a breach of contract may give rise to civil liability and entitle an employer to civil relief63 but it is submitted that the result of picketing, whether economic loss or a breach of contract, is not relevant to criminal liability under section 366( 1)Cf) and in the absence of circumstances of harassment, molestation, or physical nuisance no offence has been committed under the statute. Criminal liability should be reserved for conduct which is clearly excessive and not imposed merely because viz-a-viz labour and management, the former may have cheated a bit or the latter feels aggrieved. 620n the basis of common law conspiracy. See Gagnon et al. v. Foundation Maritime Ltd. (I 961 ), 28 D.L.R. (2d) 174 (Can. S.C.) . 68See supra note 14 for cases.

Conciliation Boards in British Columbia By RAYMOND G. HERBERT*

about the conciliation process in British Columbia are no more than the tentative, personal reflections and conclusions of one who has had occasion over the past few years to sit as chairman of a variety of conciliation boards in British Columbia. They are made under two not uncommon impulses. The first is the ordinary human tendency to generalize about, or from, a series of interesting experiences and the second is that the editor of this series requested a contribution.

mE FOLLOWING OBSERVATIONS

THE LEGISLATIVE PROVISION FOR CONCILIATION 1 of the legislation providing for conciliation services in British Columbia are, on the surface, quite clear. The legislation is similar in its essential features to that in other Canadian jurisdictions. It is designed, by providing for a succession of steps in the negotiation or renegotiation of a collective agreement, to bring into focus the issues between the parties, to provide in some measure for independent advice on those issues, and generally to exhaust the possibilities of bargaining before strike or lockout action may legally occur. mE SCHEME AND PURPOSE

"'Raymond G. Herbert, B.A., LL.B., D.F.C., C.D., Associate Professor, Faculty of Law, University of British Columbia. 1 The Labour Relations Act, R.S.B.C. 1960, c. 205 (hereafter called the L.R.A.). (There is provision for a species of conciliation in other legislation, for example, The Public Schools Act, R.S.B.C. 1960, c. 319, but this