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Lords in The Glamorgan Coal Co. (Ltd.) and others v. The South Wales Miners' Federation and others, 1905, A. C. 239. But the dicta of Quinn v. Leathem show clearly that there might be an action of damages based on any conspiracy to injure or to do harm, and it is obvious the very essence of a strike is in one sense injury to those against whom it is directed. Thus, procuring to strike might by the law of Quinn v. Leathem, coupled with that of Taff Vale, involve trade union funds in liability, even where there had been no procuring to break existing contracts.
59. There is no doubt that, though the law of conspiracy is intricate in discussion, the existence of a criminal sanction for conspiracy is a valuable preservative of order, and modern times have shown that there are certain forms of oppression generally known as boycotting which can scarcely be met except by its aid. Whether there can truly be a civil action for conspiracy, on facts which fall short of criminal conspiracy, is a question which cannot be said to be settled. We have carefully considered the matter, and our view is in the negative. . . . But we do not think it material to discuss the question at length, because, as we have already shown, the Legislature has thought fit to put those who conduct trade disputes in an exceptional position as regards that law.
60. We think therefore that without attempting to touch the law of conspiracy generally, it would be reasonable to recognize that, by the Act of 1875, it was conceded that trade unions, who necessarily act by means of combination, should for the purposes of trade disputes be put in a special position.
For the reasons already given the protection conceded was at that time confined to the criminal side. We think it can fairly be said that the civil side should be equally dealt with.
61. The proposal of the trade unions may be taken as embodied in Clause 3 of Mr. Whittaker's bill of 1905, which is as follows:
Clause 3. An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute shall not be ground for an action if such act, when committed by one person, would not be ground for an action.
We think this would be better effected by an enactment to the following effect:
That an agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute shall not be the ground of a civil action unless the agreement or combination is indictable as a conspiracy notwithstanding the terms of the Conspiracy and Protection of Property Act, 1875.
62. It is to be observed that in the above proposed amendment we have omitted after the words "trade dispute" the words "between employers and workmen " which are to be found in Section 3 of the Act of 1875. Our reason for so doing is that in "Quinn v. Leathem" the House of Lords expressed their opinion that the third section of the Act of 1875 would in the case before them have afforded no exemption from criminal liability because the acts of the defendants were not acts within the terms of the statute in contemplation or furtherance of a trade dispute between employers and workmen. Their Lordships did not offer any definition of what are acts in contemplation or furtherance of a trade dispute between employers and workmen; and though the acts done by the defendants are detailed in the evidence and commented upon by the court it is difficult to collect which of those acts taken separately failed to come within the statutory description, so as to form any guide for future cases, where, of course, the circumstances will be different. It seems to us that the Act when construed in accordance with the decision of the House of Lords has failed in giving effect to the intention of Parliament in 1875. The Legislature at that time we cannot doubt had for their cardinal object to eliminate the vague and uncertain operation of the law of conspiracy from all disputes between employers and workmen arising out of strikes and similar combinations, and the words they used for this purpose are not "between employers and workmen in their employ," but, "between employers and workmen."
For these reasons we are also of opinion that the Act of 1875 should be made to extend to so-called secondary strikes,1 and we
1 Or "sympathetic" strikes in America.
state this with the greater confidence because the majority of those employers examined by us, whose evidence was of the greatest weight, agreed that there was no valid reason for drawing a distinction between secondary and other strikes.
63. We have now finished our observations on the three branches into which for convenience of discussion we divided the subject. There remain, however, one or two topics of a general nature. It must always be remembered that trade unions materially suffer from the fact that at common law they are illegal associations, and are only, so to speak, enfranchised so far as the words of the Statute go. Their present enfranchisement depends on the words of Sections 2 and 3 of the Trade Union Act of 1871, 34 and 35 Vic. c. 31, which are as follows:
Section 2. The purposes of any trade union shall not by reason merely that they are in restraint of trade be deemed to be unlawful so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise.
Section 3. The purposes of any trade union shall not by reason merely that they are in restraint of trade be unlawful so as to render void or voidable any agreement or trust.
We think that it might be declared by Statute positively that trade unions themselves are lawful associations.
64. In the same way it was, to say the least of it, doubtful whether a strike is at common law per se illegal, i.e., as concerted action. We think that Allen v. Flood, 1898, A. C. 1, authoritatively showed that a strike was not illegal, and that it follows as a corollary that to persuade to strike, i.e., to desist from working, apart from breach of contract, is not illegal. We think this also might be statutorily declared. We are also of opinion for reasons stated in an Appendix that Allen v. Flood decided that no action lies against a person for the act of molesting another in his trade, business, or profession, unless such act be in itself an actionable tort; and as there are several dicta throwing doubt on this point we think there should be a declaratory enactment to that effect.
65. A good deal of evidence was laid before us from no unfriendly point of view to trade unions that it would be of great advantage that trade unions should be able to enter into binding
agreements with associations of employers, and with their own members to enable them to carry out their agreements. At present this is impossible owing to the terms of Sec. 4 of the Trade Union Act of 1871. We think that facultative powers might be given to trade unions, either (a) to become incorporated subject to proper conditions, or (b) to exclude the operation of Sec. 4 or of some one or more of its sub-sections for the purposes above mentioned.
66. Our recommendations may be summarized as follows:That an Act should be passed for the following objects:
(1) To declare trade unions legal associations.
(2) To declare strikes from whatever motive or for whatever purposes (including sympathetic or secondary strikes), apart from crime or breach of contract, legal, and to make the Act of 1875 to extend to sympathetic or secondary strikes.
(3) To declare that to persuade to strike, i.e., to desist from working, apart from procuring breach of contract, is not illegal.
(4) To declare that an individual shall not be liable for doing any act not in itself an actionable tort only on the ground that it is an interference with another person's trade, business, or employment.
(5) To provide for the facultative separation of the proper benefit funds of trade unions, such separation if effected to carry immunity from these funds being taken in execution.
(6) To provide means whereby the central authorities of a union may protect themselves against the unauthorized and immediately disavowed acts of branch agents.
(7) To provide that facultative powers be given to trade unions, either (a) to become incorporated subject to proper conditions, or (b) to exclude the operation of Section 4 of the trade Union Act, 1871, or of some one or more of its sub-sections, so as to allow trade unions to enter into enforceable agreements with other persons and with their own members.
(8) To alter the 7th Section of the Conspiracy and Protection of Property Act, 1875, by repealing Sub-section 4 and the proviso, and in lieu thereof enacting as a new sub-section (which would also supersede Sub-section 1): "Acts in such a manner as to cause a reasonable apprehension in the mind of
any person that violence will be used to him or his family, or damage be done to his property.
(9) To enact to the effect that an agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute shall not be the ground of a civil action, unless the agreement or combination is indictable as a conspiracy notwithstanding the terms of the Conspiracy and Protection of Property Act, 1875.
Memorandum by Mr. Sidney Webb.
I have signed the report of the majority of the commission because I agree with all its specific recommendations as far as they go, though not with every phrase in the report itself. These recommendations appear to me well adapted to remedy the particular defects in the law to which they apply; and their enactment in distinct and unmistakable terms would, in my opinion, remedy many of the grievances of which trade unionists complain, and would effect a great improvement.
With regard to suggested limitation of the liability of trade unions for the wrongful acts of their agents, I think that attention should be drawn to the following clause, which was contained in a Government bill submitted to the New South Wales Legislative Council on October 1st, 1903, by the then AttorneyGeneral (Hon. Bernhard Wise), entitled "A Bill to amend the law of Conspiracy and to amend the Industrial Arbitration Act, 1901."
Clause 2.- No trade union or industrial union or association of employers shall be liable to any suit or action, nor shall the funds of such union or association be in any way chargeable in respect of any act or word, done, spoken, or written, during or in connection with an industrial dispute, by any agent, if it be proved that such agent acted:
(i) contrary to instructions bona fide given by, or (ii) without the knowledge of the governing body of such union or association; and that the union or association has bona fide and by all reasonable means repudiated the acts or words complained of, at the earliest opportunity and with reasonable publicity.
But I cannot accept the assumption underlying the report that a system of organized struggles between employers and workmen, leading inevitably now and again to strikes and lockouts, — though it is, from the standpoint of the community as a