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Conservatives to make public service strikes more difficult to call if they win GE Watch

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    (Original post by Observatory)
    My impression from the article is that the company won the dispute but then statutory legislation introduced specific exemptions to damages for trades unions. Is that wrong?

    OK but what such legislation existed in say April 1901, after Victorian times but before Taff Vale?
    The Trades Union Act 1871 legalised trades unions by declaring that they were no longer criminal conspiracies. In return for registration they were supposed to be extra-legal spaces without the power to sue and be sued and with a non-justiciable internal structure. That is what everyone though the position was until Taff Vale when the court found a method to hold that they could be sued. It was realised straight-away that the decision negated the will of Parliament and had to be reversed. The 2nd reading of the Trades Disputes Bill took place without a division. The Conservatives and Liberals then started arguing about the precise immunities to be conferred on trades unions and essentially that argument has continued ever since.

    However it is in this 35 year period where the economic torts were being created by the courts. In Allen v Flood it is held not to be actionable wrong for a man to persuade an employer not to hire another man. That is a pro-laissez faire decision that non-the-less creates a closed shop. In Quinn v Leathem it is held to be an actionable wrong for two men to conspire with one another to try and black a trader's goods unless the trader introduces a closed shop. The supposed difference being that whilst intentionally inflicting harm on another is harm without injury (damnum sine injuria), conspiring to inflict intentional harm is injury with harm because the injury lies in the conspiracy. Of course this law was being worked out against a background that it was "known" that you couldn't sue a trades union.


    More generally do you disagree with treating labour contracts as just any other contract, even if it were a totally new and unprecedented development
    Yes, for the reasons given in my answer to Rakas21.

    The general law of contract was developed against a background of employment contracts being a special case. The general law of contract does not exist logically or factually prior to the myriad special cases of labour law. One can deregulate the employment relationship; remove barriers to employment; make the economy more efficient but what you end up with is a better set of special cases.

    If you look at the original question, why should the government insist that a strike requires a certain number of votes in its favour? Surely it is for the members of a trades union to agree the rules of their club? If they want the general secretary to be able to call a strike what business is it of government to tell them they can't?

    The answer to that is that a trades union is given immunities from suit that other voluntary bodies do not possess. That justifies the government interference.

    But then one can ask why do trades unions need those immunities? Because otherwise trades unions would be subjected to claims for the economic torts yet those torts only exist in the form they do because of the struggle between labour and employer.

    Tesco conspires with thousands of people every day to try and do harm to Sainsburys. Sainsburys cannot and does not sue. However, but for its immunities, if RMT and its members conspired to do harm to Transport for London even if that harm involved no breach of contract (e.g. by work to rule or refusing rest day working) it would be sued to the full extent of its funds.

    Likewise a BMW dealer persuades you to trade in your Mercedes paying off the finance on your old car, but your agreement with Mercedes Finance doesn't give you the right to do that. You are merely making good Mercedes' position on the deal. It suffers no loss. Yet the BMW dealer network is not seen as a criminal conspiracy to induce breaches of contract.

    People who say they want labour contracts treated the same as other contracts nevertheless generally want to "lock in" the old unfavourable decisions about trades union activities that were not both previously and subsequently applied to the activities of other economic actors. Wipe those unfavourable decisions away, and those people would not be very keen on say: a contractually enforcible closed shop agreed between employer and union coupled with say union rules that made payment of a subscription to the Labour Party mandatory and any support for a political party other than Labour, a ground for expulsion from the union and thus termination of employment.
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    (Original post by nulli tertius)
    The Trades Union Act 1871 legalised trades unions by declaring that they were no longer criminal conspiracies. In return for registration they were supposed to be extra-legal spaces without the power to sue and be sued and with a non-justiciable internal structure. That is what everyone though the position was until Taff Vale when the court found a method to hold that they could be sued. It was realised straight-away that the decision negated the will of Parliament and had to be reversed. The 2nd reading of the Trades Disputes Bill took place without a division. The Conservatives and Liberals then started arguing about the precise immunities to be conferred on trades unions and essentially that argument has continued ever since.

    However it is in this 35 year period where the economic torts were being created by the courts. In Allen v Flood it is held not to be actionable wrong for a man to persuade an employer not to hire another man. That is a pro-laissez faire decision that non-the-less creates a closed shop. In Quinn v Leathem it is held to be an actionable wrong for two men to conspire with one another to try and black a trader's goods unless the trader introduces a closed shop. The supposed difference being that whilst intentionally inflicting harm on another is harm without injury (damnum sine injuria), conspiring to inflict intentional harm is injury with harm because the injury lies in the conspiracy. Of course this law was being worked out against a background that it was "known" that you couldn't sue a trades union.
    Fair enough, I wasn't aware of this history.

    Yes, for the reasons given in my answer to Rakas21.

    The general law of contract was developed against a background of employment contracts being a special case. The general law of contract does not exist logically or factually prior to the myriad special cases of labour law. One can deregulate the employment relationship; remove barriers to employment; make the economy more efficient but what you end up with is a better set of special cases.

    If you look at the original question, why should the government insist that a strike requires a certain number of votes in its favour? Surely it is for the members of a trades union to agree the rules of their club? If they want the general secretary to be able to call a strike what business is it of government to tell them they can't?

    The answer to that is that a trades union is given immunities from suit that other voluntary bodies do not possess. That justifies the government interference.

    But then one can ask why do trades unions need those immunities? Because otherwise trades unions would be subjected to claims for the economic torts yet those torts only exist in the form they do because of the struggle between labour and employer.

    Tesco conspires with thousands of people every day to try and do harm to Sainsburys. Sainsburys cannot and does not sue. However, but for its immunities, if RMT and its members conspired to do harm to Transport for London even if that harm involved no breach of contract (e.g. by work to rule or refusing rest day working) it would be sued to the full extent of its funds.

    Likewise a BMW dealer persuades you to trade in your Mercedes paying off the finance on your old car, but your agreement with Mercedes Finance doesn't give you the right to do that. You are merely making good Mercedes' position on the deal. It suffers no loss. Yet the BMW dealer network is not seen as a criminal conspiracy to induce breaches of contract.

    People who say they want labour contracts treated the same as other contracts nevertheless generally want to "lock in" the old unfavourable decisions about trades union activities that were not both previously and subsequently applied to the activities of other economic actors. Wipe those unfavourable decisions away, and those people would not be very keen on say: a contractually enforcible closed shop agreed between employer and union coupled with say union rules that made payment of a subscription to the Labour Party mandatory and any support for a political party other than Labour, a ground for expulsion from the union and thus termination of employment.
    I take your point but you seem to be making an arugment (or reasoning from a hidden premise) that I find unconvincing: that to establish a neutral state of free contract, it has to have already existed in an idealisable past. I don't agree.

    Free contract in labour doesn't require any historical precedent to established; it can be derived logically from the simple assumption of individual property in one's body. I agree with you that this would lead to substantial deregulation of union activities: they would be free to establish their own constitutions, pursue secondary strikes, strike demanding closed shops, etc.

    From an economic point of view I think none of those actions are likely to be remotely common without the key union privilege: their right to still enforce contracts that have been breached through union activity on the other party. Without this protection, unions lose the attributes of official monopolies and become unstable private cartels.
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    (Original post by Katty3)
    The right to strike was hard won by the Chartist movement. Strikes are a good thing as they force employers to listen to workers demands, e.g., stop the cuts, Michael Gove is Education Secretary, Andrew Landsley's health reforms, privatization, etc.
    This is merely an attempt to get the unions to shut up. GET THE TORIES OUT. my reasons why are so extensive, it would take at least 3 pages to write them all.
    Public sector strikes since 2010 have been about pay and pensions.

    The employer hasn't changed their mind on these due to strikes.

    Gove/Landsley was about votes not strikes. Have 'the cuts' stopped?
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    (Original post by Observatory)


    I take your point but you seem to be making an arugment (or reasoning from a hidden premise) that I find unconvincing: that to establish a neutral state of free contract, it has to have already existed in an idealisable past. I don't agree.
    I think my unstated premise is that there isn't a single state of free contract. There are many possible states but the only fully formed one is the one that actually existed.

    Most of 19th century trade was financed by Bills of Exchange. Uniquely the courts held Bills of Exchange to be enforcible by strangers.

    If the courts had decided not to enforce Bills of Exchange by strangers, London's position in the economy would have been much less because the working capital of the industrial revolution would have had to have been provided by the regional magnates on the strength of their rent rolls rather than by the merchant bankers of London. The economic history of England would have been entirely different,

    No amount of free contract theory produces a "right" or "wrong" answer to the question whether the courts should have reached the conclusion they did. Historically, we can say the right decision was made.

    The theories underpinning contract law come into being at the same time, sometimes a little ahead, sometimes a little behind the actual decisions creating it. If you say labour relations should be dealt with on a free contract basis but not necessarily the actual legal system that presently exists (and as I have said the content of the actual system is influenced by the actual history of labour contracts) then all of these decisions that went one way or another creating creating our actual legal system are open to review. You are creating a new legal code.

    If you take the example I have just given regarding enforceability by third parties, that matters in the labour field because new workers and new employers come along. To what extent can I, whether as a worker or an employer enforce or be bound by bargains that have been made before I was around? There is a whole raft of statutory intervention dealing with particular issues on that subject because it is felt that there should be different answers in different particular cases.

    The answers the common law reached on this may well have been very different if there had been mineowners complaining about the judges because they had struck bargains with the mining unions as agents for the miners, but when the young miners broke those agreements they were saying that they were either under 21 when the contracts were made or they hadn't started mining and joined the union and so the union was no agent of theirs at the time. The common law might, but didn't, say join a union and you become party (or even have the option to become party) to every contract the union had previously entered into with employers. The common law might have said, but didn't, that if you were under 21 your father could bind you.
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    (Original post by young_guns)
    How are trade unions a state-backed cartel?
    The state continues to enforce contracts broken by unions on the other parties. This privileges unions above other organisations and persons. I may not refuse to pay a car dealership unless they negotiate a lower price, holding the car in the meantime and preventing them selling it to anyone else. Similarly the dealership may not take my money and refuse to deliver the car until I agree to negotiate a higher price. Seen in this light almost everyone would agree that this sort of contract privilege would lead to extortion and chaos, not fairer trade.

    In reality, most employers will not dismiss striking employees for very practical reasons; it means they end up with no workforce. In an economy where experience and skills count for a lot, it is bad business to dismiss someone who has been with you for ten years because he misses a day of work (for which you have weeks of notice) in an industrial dispute.
    They don't dismiss striking workers because it is illegal.

    It is only true that employers need union workers more than union workers need employers if unions do not demand any more than the market clearing wage. If they demand more than this, it is in the employer's interest to dissolve its contracts with striking workers and issue new offers at the market clearing rate. Since the market clearing wage is the one to which the free market tends on its own, what's the point of unions?

    In reality unions have attempted to enforce above market clearing wages by mob violence: a picket is the archetypal example, a violent obstruction of other would be workers' wish to accept the terms employers are offering.

    Finally, even if unions could enforce above market clearing wages without either state privilege or mob violence, it would not be desirable. If wages are held above the market clearing rate than the result is unemployment; in other words, working "properly" a union redistributes wages from poorer people to its members and reduces the total productivity and therefore wealth of the whole society.

    In any case, I don't think most people in the UK would be particularly keen on taking us to an extreme, right-wing employment system you undoubtedly advocate, like the American one; at-will employment, no guaranteed annual leave, no minimum wage, and so on. If that's a debate you want to have in the public sphere (not you personally, I mean conservatives), bring it on
    You're living in the past. Britain has had a minimum wage since 1998, the US since 1938. In several US states unions can compel closed shops and unions can tax non-members for their unwanted services of collective bargaining. In Britain all of these practices are illegal. The US is not more hostile to union privilege than the UK.
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    (Original post by nulli tertius)
    I think my unstated premise is that there isn't a single state of free contract. There are many possible states but the only fully formed one is the one that actually existed.

    Most of 19th century trade was financed by Bills of Exchange. Uniquely the courts held Bills of Exchange to be enforcible by strangers.

    If the courts had decided not to enforce Bills of Exchange by strangers, London's position in the economy would have been much less because the working capital of the industrial revolution would have had to have been provided by the regional magnates on the strength of their rent rolls rather than by the merchant bankers of London. The economic history of England would have been entirely different,

    No amount of free contract theory produces a "right" or "wrong" answer to the question whether the courts should have reached the conclusion they did. Historically, we can say the right decision was made.

    The theories underpinning contract law come into being at the same time, sometimes a little ahead, sometimes a little behind the actual decisions creating it. If you say labour relations should be dealt with on a free contract basis but not necessarily the actual legal system that presently exists (and as I have said the content of the actual system is influenced by the actual history of labour contracts) then all of these decisions that went one way or another creating creating our actual legal system are open to review. You are creating a new legal code.

    If you take the example I have just given regarding enforceability by third parties, that matters in the labour field because new workers and new employers come along. To what extent can I, whether as a worker or an employer enforce or be bound by bargains that have been made before I was around? There is a whole raft of statutory intervention dealing with particular issues on that subject because it is felt that there should be different answers in different particular cases.

    The answers the common law reached on this may well have been very different if there had been mineowners complaining about the judges because they had struck bargains with the mining unions as agents for the miners, but when the young miners broke those agreements they were saying that they were either under 21 when the contracts were made or they hadn't started mining and joined the union and so the union was no agent of theirs at the time. The common law might, but didn't, say join a union and you become party (or even have the option to become party) to every contract the union had previously entered into with employers. The common law might have said, but didn't, that if you were under 21 your father could bind you.
    I don't agree that the branches in jurisprudence you highlight are neutral and that any decision would have resulted in free contract, just "different" free contract. If courts had refused to have enforced "I promise to pay the bearer..." notes then they simply would have restricted the right to free contract to the extent that people could not contractually pledge their property to an unnamed person. Britain may well have developed much slower economically but this would have been precisely because of lesser freedom of contract, not because it had "different" freedom of contract.
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    (Original post by Observatory)
    I don't agree that the branches in jurisprudence you highlight are neutral and that any decision would have resulted in free contract, just "different" free contract. If courts had refused to have enforced "I promise to pay the bearer..." notes then they simply would have restricted the right to free contract to the extent that people could not contractually pledge their property to an unnamed person. Britain may well have developed much slower economically but this would have been precisely because of lesser freedom of contract, not because it had "different" freedom of contract.
    I think you realise I wasn't speaking of bankers' notes in my previous post but the points I made and the point you make apply equally to them as to traditional inland bills of exchange.

    You are not right because the right to freedom of contract would not have been restricted. The courts would have simply said "what you have here is not a contract therefore we will not enforce it". What is a contract, what is a lease, what is a patent are questions that cannot exist outside of the legal system that creates them.
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    (Original post by Observatory)
    The state continues to enforce contracts broken by unions on the other parties
    You are confused. When someone goes on strike, they're not paid and their employer can sue them for breach of contract. Furthermore, the union is not a party to the employment contract, it is by its nature incapable of breaching a contract to which it is not a party, that is pretty basic

    As you don't understand the difference between minor, material and repudiatory breaches, and conditions and warranties in contractual law, what terms might be incorporated by implication into the contract viz. strikes, and such basic issues as who are the parties to the employment contract, it would seem you are slightly out of your depth when you start telling us about what the law is and is not.

    Though if you do want to have a debate about contact law and its relationship to this claimed trade union privilege, let's have at it

    They don't dismiss striking workers because it is illegal.
    I was making the point that even if they could, they wouldn't, so your claim to be freeing up employers to do something they desperately want to do is bunk. Emplopyers are far more pragmatic, and far friendlier to trade unions generally, than the radical, frothing-at-the-mouth right-wingers who believe that from their ivory towers they know better than the people on the ground.

    And while an employer can't dismiss a worker for sacking, nothing stops them from making workers redundant for business reasons (that their wage is too high / unsustainable). For the right-wing, what this comes down to is radical, ideological warfare.

    Seen in this light almost everyone would agree that this sort of contract privilege would lead to extortion and chaos, not fairer trade.
    Given we've established this "privilege" exists only in your own mind, perhaps you will reassess your view of trade unions?

    Since the market clearing wage is the one to which the free market tends on its own, what's the point of unions?
    :lol:

    You would not have any problem with any other industry negotiating the best possible price for its product. The highest price the market will bear is the market price. The reason you have an issue with this only when it involves organised labour, the reason for this blatant inconsistency, is that your claimed adherence to free market principles extends only insofar as it benefits people who are not ordinary workers. This is commonly known as hypocrisy

    In reality unions have attempted to enforce above market clearing wages by mob violence
    Now you've jumped the shark.

    A picket is a lawful protest (in fact, it is the only form of protest where the government determines how many people are allowed to take part). No-one is prevented from entering their place of employment.

    Again, given important aspects of your consideration of the TU issue exist only in your fevered imagination (i.e. the government "enforcing broken contracts"), I'm not sure how seriously I should take your hysterical comments about "mob violence"

    You're living in the past. Britain has had a minimum wage since 1998, the US since 1938.
    And if this issue is an issue of the past, why are people like you so keen to abolish the minimum wage? Are you supporter of the minimum wage now?

    By the way, the United States does not have a minimum wage in the normal sense of the term, given there are large sections of the workforce that are not protected by it.
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    (Original post by young_guns)
    I was making the point that even if they could, they wouldn't, so your claim to be freeing up employers to do something they desperately want to do is bunk.

    ...

    For the right-wing, what this comes down to is radical, ideological warfare.
    Then why did you choose to excise my rebuttal of this claim?

    As I explained, companies may agree to union demands where the unions are only demanding the competitive equilibrium. They may conceivably also ignore union action that goes beyond that but where there are frictional costs (which causes deadweight loss, but perhaps isn't worse than other inefficiencies in the market). They could not force wages up considerably above the market rate which is the whole point of forming a union. Of course they cannot now either but that is because of the various legal restrictions that have been imposed on their activities. I am saying that it is better to have a system of free contract, than to grant certain groups arbitrary privileges that radically distort the market in their favour and then, when this causes problems, try to balance it by imposing arbitrary disabilities on them.

    If it's about warfare for the right, they already won the war. Unions are now pretty much toothless and barely even exist outside of the state sector. My main concern is to tidy up the foundations of contract law, rather than to achieve a radically different set of outcomes in practice. Unions were granted various privileges as part of a left wing ideological war which the left lost; this is just about clearing away the rubble.

    And while an employer can't dismiss a worker for sacking, nothing stops them from making workers redundant for business reasons (that their wage is too high / unsustainable).
    I very much doubt a company can legally fire all its union workers on the basis that the wage they negotiated is too high.

    You would not have any problem with any other industry negotiating the best possible price for its product. The highest price the market will bear is the market price. The reason you have an issue with this only when it involves organised labour, the reason for this blatant inconsistency, is that your claimed adherence to free market principles extends only insofar as it benefits people who are not ordinary workers. This is commonly known as hypocrisy
    In the market individual firms compete to offer the lowest price. A union is a cartel that seeks to force up prices by eliminating competition. When companies do this it is, generally speaking, illegal. I cannot think of a single industry that negotiates prices as an industry, with the possible exception of military equipment contractors and the NHS. The common factor is that the state is either the customer or the supplier.

    You're right that I don't support those laws, but for the same reason I don't support outlawing unions: absent legal privileges and extra-legal intimidation, private cartels are generally unstable and of little importance.

    Now you've jumped the shark.

    A picket is a lawful protest (in fact, it is the only form of protest where the government determines how many people are allowed to take part). No-one is prevented from entering their place of employment.
    A lawful picket may be a lawful protest; mob violence is by definition unlawful. The practice of picketing long pre-dates any legal definition thereof. The purpose was to assault non-union workers who tried to undermine the cartel. And while the state tried to formalise this practice into something less extreme, it's not like that type of picket went away. As late as the 80s there were routine clashes with police as union members tried to prevent workers (as well as suppliers, contractors, etc.) accessing their workplaces, sometimes, as in the case of the dockers, workplaces that did not have any members of that union! In extreme cases these escalated as far as homicide of workers by other workers.
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    (Original post by nulli tertius)
    I think you realise I wasn't speaking of bankers' notes in my previous post but the points I made and the point you make apply equally to them as to traditional inland bills of exchange.

    You are not right because the right to freedom of contract would not have been restricted. The courts would have simply said "what you have here is not a contract therefore we will not enforce it". What is a contract, what is a lease, what is a patent are questions that cannot exist outside of the legal system that creates them.
    Suppose the courts said there is no such thing as a contract, but you can make any contract you like. There is total freedom of choice within the set of all contracts which is empty.

    I think this is a fairly hollow argument.
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    (Original post by Observatory)
    My main concern is to tidy up the foundations of contract law
    We've already established you know next to nothing about contract law. How exactly do you think you're in a position to advocate a new system when you are almost entirely ignorant of the current one? In fact, your knowledge of the current system is worse than non-existent, it's factually incorrect. Of course, it has nothing to do with tidying up a system of contract law of which you are almost entirely ignorant; it's all about a radical free market ideology.

    In these matters, I favour conserving a system that serves us reasonably well, rather than frothing at the mouth and charging in like a bull in a china shop, filled with ideological pique and intent on trashing our English common law

    It is interesting that you completed avoided actually addressing my demolition of your odd claims about state protection of contracts. Why don't you address that? You appeared to ignore it and then just restate your misconceived objective

    They could not force wages up considerably above the market rate
    The market rate is whatever rate has been negotiated. If a trade union manages to negotiate an increase in their members' wages, then that new wage level is the market wage for that segment of the labour market

    Why are you objecting to this collective bargaining? Why do you feel competent to interfere in the internal affairs of other organisations?

    It reminds me of the right-wing ideologues who started attacking MI6 because they made a payment to a trade union organisation to provide representation services to MI6 officers (it's not possible to have their employees making subs payments direct). The right-wing ideologues didn't consider that maybe MI6 management knows what's best for their particular situation and that national security should come before their grubby right-wing agenda

    Instead commenced a series of histrionic attacks on both MI6 and the trade union in question. It's like they've gone rabid; these people aren't conservatives, they're a joke

    Unions are now pretty much toothless
    Then why do they evoke such hysteria from the likes of you, to the point where you will trash national security in an attempt to score a point?

    I very much doubt a company can legally fire all its union workers on the basis that the wage they negotiated is too high.
    Not all union workers, all workers in that position who are being paid that wage. When unions negotiate wages, they negotiate for all workers of that classification in that company and all employees get the benefit whether they are unionists or not. Didn't you know that?

    Of course, one has to question why a firm would sack those employees when it was the employer who just consented to the new wage level?

    By the way, do you think an employer should be able to sack someone for being black?

    In the market individual firms compete to offer the lowest price.
    You appear to be under a misapprehension. Many firms compete on quality rather than price.

    Anyway, let's loop back to contract law. Are you going to address that issue?
 
 
 
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