experience under the fair wages resolution of 1946*

Experience under the fair wages resolution of 1946* by P. B. Beaumont Lecturer in Applied Economics, University of Glasgow, Scotland

THE three Fair Wages Resolutions passed by the House of Commons’ have sought to ensure that employees engaged on work done under contract to government departments are entitled to wages, hours and conditions of employment no less favourable than those generally established by collective bargaining in the relevant sectors of industry. The principle underlying these resolutions is that the government has a duty to use its bargaining power as a contracting party to ensure that government contractors observe at least certain minimum standards of fairness in the terms and conditions of employment they offer?

The first Fair Wages Resolution of the House of Commons was passed in 1891 in response to public concern over the system of sweated labour. It was seen at the time as a more acceptable and practica- ble measure than minimum wage legislation, and actually constituted the only element of government intervention in the wage determination process at the turn of the century3 The 1891 resolution was superseded by a second resolution in 1909, which in turn was superseded by the third and final resolution of 1946. I t is only the operation of the latter resolution that is examined in this paper.

The 1946 Fair Wages Resolution of the House of Commons has no statutory basis or force, but is simply an administrative directive to the executive setting out an obligation to safeguard the employment standards of workers employed by firms which have received government contracts. The Fair Wages Resolution has, however, been embo- died in certain Acts of Parliament covering industries in receipt of government grants, loans or subsidies: but the operation of these ‘statutory’ fair wages clauses is not examined in this paper.

7 h e aulhor IS gralelul 10 Andmw Thommn lor helpful comments On an earlier drafl of this article Tho assistance 01 the officers 01 the Industrial Rsletms Branch of the Depanment of Employmenl in providing data and ~nlormmia IS aly) gratelully acknowledged However. all rasponribilily lor the content remains with the author

1 Th. tull lei1 of the thrm r d u t b n r is l b t out in tho Ministry 01 hbour. 1ndu.lndll.I~lmns. HMSO. London. 1961. Appendix 111. P 214-15

2 Beaumont. P 0 “Tho Changing Nolmn of I h e Government as a Modd Emplowr In Bmam”, Glasgaw Unwerstiy. M,msopraphedPaper. 1977

3 Pholps Brown. E H . The Growfh 01 Enmh Indusrrd Rslalionr. Macmillan. London. 1959. p 197.201

4 A list of the ACIS whrh contain law wagsr clauses IS provided in MinistryolLabour.op c t r . AppmdixIII. pp 2 1 5 1 6

THE PROVISION OF THE 1946 FAIR WAGES RESOLUTION

The third and final Fair Wages Resolution of the House of Commons constituted the final stage in the evolution of a process designed to establish a close connection between the concept of ‘fair wages’ and the terms of collective agreements, i.e., the outcome of the collective bargaining process became the appropriate standard of ‘fairness’ to be met by the contractors’ terms and conditions of employment.

The six clauses of the 1946 Resolution are as follows:

I . (a) The contractor shall pay rates of wages and observe hours and condiiions of labour not less favourable than those established for the trade or industry in the district where the work is carried out by machinery of negotiation or arbitration to which the parties are organiza- tions of employers and trade unions representa- tive respectively of substantial proportions of the employers and workers engaged in the trade or industry in the district. (b) I n the absence of any rates of wages, hours or conditions of labour so established the contractor shall pay rates of wages and observe hours and conditions of labour which are not less favourable than the general level of wages, hours and conditions observed by other employers whose general circumstances in the trade or industry in which the contractor is engaged are similar. The contractor shall in respect of all persons employed by him (whether in execution of the contract or otherwise) in every factory, workshop or place occupied or used by him for the execution of the contract comply with the general conditions required by this Resolution. Before a contractor is placed upon a department’s list of firms to be invited to tender. the department shall obtain from him an assurance that to the best of his knowledge and belief he has complied with the general conditions required by this Resolution for at least the previous three months. I n the event of any questions arising as to

34

whether the requirements of this Resolution are being observed, the question shall, if not otherwise disposed of, be referred by the Minister of Labour to an independent Tribunal for decision. The contractor shall recognize the freedom of his workpeople to be members of Trade Unions. The contractor shall at all times during the continuance of a contract display, for the information of his workpeople, in every factory or place occupied or used by him for the execution of the contract a copy of this Resolution. The contractor shall be responsible for the observance of this Resolution by sub- contractors employed in the execution of the contract, and shall if required notify the department of the names and addresses of all su b-con t factors.

THE STATUS AND ENFORCEMENT MACHJNERY OF THE RESOLUTION

The Fair Wages Resolution has in itself no statutory basis or force, but once incorporated in a contract between a government department and a private employer becomes a term of contract by which the latter undertakes to comply with the terms and conditions of the relevant collective agreements and awards. A violation of this contractual term could therefore give a government department the right of recission or damages according to the principles of common law? but such an infringement cannot provide an individual employee of the contractor with any form of legal redress.6 This is because the contract at issue is not the individual contract of employment but rather the commercial contract between the government department and the contractor. A trade union is also unable to take court proceedings against a contractor for infringement of a fair wages clause.

The resolution provides for the use of non-legal machinery to ensure observance of fair wages

5 A lair wager clause appears to be a contractual term that IS technically nerthsr 'condmon nor 'warranty' but mdexermtnats end hence whether a departmsnr w 1 1 choose (0 ravmd the conlrecl for beach 01 Ihe clause vould reem ID dspnd on the nature 01 the brekh and 11s consequences

6 SmpronvKodakLld. 1 9 4 8 . 2 K B 184

clauses. An allegation that a contractor is not observing the terms of a a fair wages clause will go directly or indirectly (via the contracting department) to the Department of Employment. If the complaint is not withdrawn after preliminary dis- cussions the Secretary of State for Employment will seek a settlement through conciliation. If the dispute is not resolved at this stage it is then referred to an independent arbitration tribunal. In the past this has always been the Industrial Arbi- tration Board (prior to December 1971 called the Industrial Court), but from February 1976 the relevant arbitral body for fair wages disputes has been the Central Arbitration Committee.

In arbitrating alleged infringements of fair wages clauses, the Industrial Arbitration Board has not acted in any statutory capacity, and hence has lacked the authority to award specific terms and conditions of employment. The Board has acted as a voluntary arbitral body which can merely decide whether or not the terms of the fair wages clause have been contravened? As a decision of the Industrial Arbitration Board was not legally enfor- ceable it was up to the contracting department (by virtue of its contracting rights) to take any action considered necessary to remedy an established breach of such a clause. The Central Arbitration Committee currently operates in a similar capacity.

THE ENFORCEMENT RECORD OF FAIR WAGES CLAUSES

In an attempt to assess the work of the Fair Wages Resolution, we present in the remainder of this paper an examination of the enforcement record of these fair wages clauses. However, it must be emphasized from the outset that an examination of this enforcement record may not in itself provide a sufficient basis for fu / / y assessing the impact and value of the resolution. This is because the major impact of the Fair Wages Resolution may have operated through the in- fluence of example, moral suasion and the bar.. nessing of self-interest in the interests of com-

J R Y Indusrrral Cow! e* Pave ASSET, 1965. I 0 E 3 77

35

Experience under the fair wages resolution of 1946

pliance, rather than through the use of the direct enforcement machinery.8

If this has been the case, then the fact that only a small number of alleged breaches of the resolution have required outside settlement (see Table I ) does not necessarily mean that the value of the resolution has been small. Indeed, one could argue to the contrary that the very success of a measure of this type is indicated by the fact that only a small number of infringements have actually been alleged? This is because the mere existence of the resolution may have been sufficient to ensure observance of the relevant collective agreements through inculcating a habit of obedience, or through operating on the self-interest desire of employers to remain on the list of acceptable government contractors. However, it is impossible to test this argument as we have no idea of the likely extent of contractor compliance with the relevant collective agreement terms in the absence of the resolution. This possibility should neverthe- less be borne in mind when considering the findings presented in this paper.

The first step in our analysis should ideally be to examine the full list of conciliation cases which have involved alleged infringements of fair wages clauses, but unfortunately such a record does not exist in either a published or unpublished form. The Department of Employment did, however, make available their existing records for all fair wages questions formally raised with them but which had been settled and withdrawn prior to the final stage of arbitration. These records revealed that 71 alleged infringements of the resolution had been raised with the Department during the period 1957-76 (October) but were withdrawn prior to the arbitration stage. A total of 56 of these occurred in the period 1973 to October 1976. These disputes were either settled at the preliminary discussion stage or resolved through conciliation.

In the absence of any individual details for these 71 complaints which were withdrawn prior to arbitration, the remainder of this article will con-

8 Sse Kahn-freund. 0.. " T b Lmal Framarrork". in Allan Flanders and H A Clegg (sds.) The Syslem of Indurmal Relatons tn Great 8nldm. Basil Blackwwll.Oxlwd, 1954. pp 759.

9 The mwrnptton here IS that a11 the inlringementa that haw oavt red have b a n dmldisd and alleged

36

centrate solely on those alleged breaches of fair wages clauses that have gone to arbitration for settlement. The number of such arbitration cases for the years 1946-75 is listed below in Table I.

TABLE 1: The number of fair wages arbitration cases, 194675

Su b-period Number of cases

1946-49 1950-53 1954-57 1958-6 1 1962-65 1966-69 1970-74

1975

4 6 9 7 4 I

24 3

1946-75 58

For the period 1946-75 there were only 58 fair wage arbitration cases making for a yearly average of some two cases. Only the subperiod 1970-74 witnessed any significant departure from this average, with the 24 cases during these five years constituting some 40% of the total arbitration case load under the Fair Wages Resolution. The cases in the years 1970-74 did not occur on a random basis but arose from two systematic, underlying sets of circumstances. Nineteen of these 24 awards fall neatly into two groups of cases, defined by the common factor that lead to their occurrence.

Firstly, there were 10 cases in the contract cleaning industry during the years 1970-72."J These years saw the introduction of various public expenditure cuts which led to the contracting out of work previously undertaken by direct government employees. This move from direct to contract work occurred mainly in the cleaning of government offices where the Civil Service Union con- tended that the government was seeking to reduce its labour costs by ignoring its obligation to uphold fair employment standards."

10 More exactly ona case (Award 3 16 1) occurred an January 1968 1 1 Edwards. Kathleen L , The Slory of lhe O w l Senme Unmn. Gmorgs

Allen and Unwm. London. 1975. pp 72.5

TABLE 2: Fair wages arbitration cases by clause and decision, 1-75

Withdrawn Established Established Not Before

in part established decision Total ~ ~ ~~~

Cases 20 6 29 3 58

‘Clause I 20 I 25 2 48 - 8 I 9 Clause 4 -

I Clause 5 I 5 Clause 6 3 I 1

I 1 2 Other - -

- - - -

Total 24 2 35 4 65 ~ ~ ~ ~~

*Under the clause 1 heading the 20 established cases consisted of 14 I(b) complaints and six I(a) complaints, the one case established in part was a clause I(a) complaint, the 25 cases not established consisted of 14 I(b) complaints and 10 I(a) complaints with one case uncertain, while for the two cases withdrawn before decision it was not clear whether they were I(a) or I(b) complaints.

The second set of cases consisted of nine awards which arose directly from an exceptions clause in the government’s wage restraint policy which operated during the years 1972-74.12 In these cases, the employers and unions involved colluded so as to establish a breach of the Fair Wages Resolution which would permit an exceptional wage increase to be paid over and above the general pay limits imposed under the various versions of the Pay Code.

It is apparent that ‘collusion’ is still occurring in some of the more recent fair wages cases that have gone to the Central Arbitration Committee. Among the 13 fair wage awards made by the Committee in 1976, three of the claims were actually brought by the employer himself and in one other case the employer made no attempt to refute the union claim that he was in breach of the resolution. Furthermore, of the 19 cases still to be heard at the end of 1976, nine of them had been brought by the employer. In recognition of possi- ble collusion, the Committee broke sharply with

1 2 Thm iwmase In the number of arbinalion awards provides an Interest#ng cont~ast to the more usual eltacl of Incomes policy on the arbitratan process In Britain dirursed tn P B Beaumont. The Adverra E t l s i of Incomes Pot rv on the Acceptability and UM of Arbitration an the British Civil Se tvre P d l w Admmarrseon, Vol 54. Summer 1976. pp 199-209

the past practice of the Industrial Arbitration Tribunal in stating that they did not feel bound to rely solely on the evidence of the IWO parties in reaching their judgement.13 They could obtain wage information for comparison purposes from other sources, and in fact have done this in at least one subsequent case.14

But to return to the operation of the resolution under the Industrial Arbitration Board, the next two sections of the paper will concentrate on drawing out the leading issues in dispute in the arbitration cases which occurred in the years 1970-74. The reason for this is that they raised questions of interpretation which bear directly on a number of the criticisms that have been made of the terms and operation of the Fair Wages Resolu- tion. But prior to this examination, it is necessary to provide some further background information on the fair wage arbitration cases listed in Table I .

The contents of Table 2 below reveal that of the 58 arbitration awards handed down in the period 1946-75,48 cases raised issues concerning clause I, nine raised issues concerning clause 4, while only

13 Central Arbitraton Cornmatlee Award No 14. W m s t l t d , v Associn- rmn 01 Scisnfrlrc. rechnrcal and Manapsnal Srallr. 1 9 7 6 1 4 Central Arbmation Committee Award NO 33. Newron Derby Ltd Y A s s o o a f m of Prolessimal. Eascufive. Clencnland ComourerSfall, 1 9 7 6

37

Experience under the fair wages resolution of I946

eight raised issues concerning any of the other clauses of the resolution The results in Table 2 indicate that the complaint was established in 20 cases, in 29 cases i t was not established, while three other complaints were withdrawn before the award was made and a further six cases were split with the Board deciding for the complainant on one issue and against him on the other. But of the 20 successful claims. nine were special cases that arose out of the operation of the government’s incomes policy of the years 1972-4. In these nine cases, the contractor wished to be found in breach of the resolution in order to pay an above the limit wage increase. Accordingly, only I1 of the 58 awards were genuine disputes in which an alleged breach of the Fair Wages Resolution was upheld by the Board.

CRITICISMS OF THE FAIR WAGES RESOLUTION In view of this unfavourable award record (from

the worker and union viewpoint), it is necessary to consider in some detail the specific criticisms that have been made of the provisions of the Fair Wages Resolution. The first line of criticism is that certain changes in the industrial relations system have operated to undermine the relevance of the resolution in present day circumstances. This type of criticism is exemplified by Clegg’s claim that “since pay in most industries is now in excess of the industry (or district) agreements which can be enforced under the fair wages resolution.. . they d o not play such an important part in industrial relations as they might otherwise do.15 This claim that the rise of shopfloor bargaining has acted to undermine the relevance of the Fair Wages Reso- lution is a potentially very damaging criticism which is considered in the following section of the paper.

Secondly, a number of trade union leaders have argued that the ‘weak wording’ and ‘flimsy text’ of the resolution was responsible for the fact that “the protection of the Fair Wages Resolution.. . is absolutely inadequate.”’* An examination of some of the major fair wages arbitration cases is under-

15 Clsgg. H A , The Svstem ollndvrfnalRslarr~ns m Great Bnram. Basil

I6 AnnualReporr ot the Trades Unron Congress, 1964. pp 527-8 Blackwsll. Oxlad. 1970. P 3 4 9

38

taken in a later section specifically, with a view to identifying some of the leading problem areas that may help explain union disenchantment with the extent of protection afforded by the terms of the resolution.

THE FAIR WAGES RESOLUTION: THE RATES-EARNINGS PROBLEM

The first criticism contends that certain institutional changes in the post-war economy have had the effect of limiting the potential area of impact of the Fair Wages Resolution. The major institutional change held to be responsible for this problem is the existence of workshop bargaining which has led to actual earnings levels differing quite substantially from the wage rates negotiated at the national level in many industries. The contention here is that wage drift resulting from shop-floor bargaining has reduced the potential impact of the resolution, as only nationally agreed rates (not actual earnings) are covered by the terms of clause I of the resolution.

This issue was faced by the Industrial Arbitra- tion Board in a number of the ‘disputes’ that came to them during the incomes policy years 1972-4.” And in its landmark decision in Award No. 3290,’8 the Board provided an interpretation that delibera- tely sought to maintain the long-term relevance of the resolution in an institutional context in which shop-floor negotiations were an all-important fact of industrial life. In this case, the contractor was engaged in the

engineering industry where the national collective agreement laid down minimum rates of pay which had been built upon by shop-level bargaining to such an extent that the going district rate for labour in the engineering industry was considerably higher than the rates laid down in the national agreement. The issue directly facing the Board was whether the dispute was to be decided under clause I.(a) or clause I.(b) of the resolution. This in effect raised the question of whether the contractor could be said to satisfy the terms of the Fair Wages Resolution if he only paid the minimum

17 This issue was aclually cased. #I less cenlrally. an eather Award Nos

18 Industrial Arbilralion Board Award No 3290. Crrtfal.Hope 1 rd Y Pay 2793(1960land 281 211960)

Boad 1974

rates laid down in the national agreement. The Board accepted the employers' submission

that because the national agreement only laid down minimum rates, i t could not provide a yardstick for establishing the 'fairness' of the going rate for the engineering industry in that district. Hence, the dispute was be considered under clause I.(b) rather than under clause I.(a) of the resolution. In the opinion of the Board, this was necessary because "the general purpose of the resolution would appear to be frustrated if the effect of clause I.(a) was to confine the workers concerned to wages, hours and conditions which are less favourable to them than the general level referred to in clause I.(b)". The implication of this decision was that clause I.(a) was to play little role in deciding the fairness of the terms and conditions of employment in industries where actual earnings resulting from shop-level bargaining considerably exceeded national minimum level rates.

This interpretation was rejected by the High Court in a decision which sought to "give to the words of the resolution the meaning to be attached to them in the year 1946."'9 The interpretation of the High Court was that the wording ofclause I.(a) of the 1946 resolution was certainly out of date, but that this reality could not be changed by interpretation. The implication of their judgement was that a new Fair Wages Resolution was necessary in order to adapt to the reality of changed circumstances, i.e., to the importance of local level bargaining.

The Industrial Arbitration Board, however, refused to modify its views on this matter and, indeed, on one occasion explicitly rejected the High Court interpretation?o At present only the maintenance of the Industrial Arbitration Board's purposal rather than literal interpretation of clause I by the Central Arbitration Committee will stave off the reality that the rise of shop-level bargaining has seriously undermined the terms of this clause of the Fair Wages Resolution as a means for ensuring fair labour standards for

19 Racal Commun,calronr i t d Y The Pay Road, (1974) 3 All ER 263

20 lnduslroal A r b w a t m Board Award No 3300, E E P T U Y Clarke 6. ICh 0) p 267 FG

Smtth Menulaclurmg Co Lid , 1974

employees engaged on government contract work.21

THE MAJOR PROBLEM AREAS IN FAIR WAGES AWARDS

Trade union leaders have, on various occasions, been highly critical of a number of difficulties that have plagued their attempts to establish that contractors have been in breach of the Fair Wages Resolution. A review of some of the leading clause I and clause 4 arbitration cases should help highlight the major difficulties experienced by unions attempting to establish employer infringement of fair wages clauses. However, it is not always an easy matter to tell which particular arguments have influenced the Board in reaching their decision. This is because the Board rarely published the reasons for their decisions. In addi- tion, the burden of proof in fair wages disputes is laid on the complainant, which means that a contractor will win the case if the union fails to provide sufficient evidence to satisfy the Board. This fact led the Board on occasion to demand further evidence from the two parties before rendering a decision.

The obvious starting point for considering disputes under clause I is the group of I0 awards in the contract cleaning industry which were handed down during the years 1970-72.22 Although the union involved successfully established their claim in five of these awards, there was major disagreement over the determination of the appropriate trade or industry in which the contractor was engaged. In these disputes (except award No. 3162). the alleged breach was of clause I.(b) with the union arguing that the relevant industry for purposes of comparison was the office and factory cleaning trade. Within that industry, they laid great stress on the relevance of comparisons with the pay and conditions of cleaners directly employed by government departments.

The employers, however, claimed that they were engaged in the more narrowly defined contract

21 The mast rfsent indications are thal the Cornmitea IS msmtammg this inlcrpretatmn so lhal faor wages may be pald at dwrct rat- even when they are In excess of those laud down on nanonal agreements Seeincomer DalaReporl. No 254. April 1977. p 30

22 Award Nos 3161 (1968). 3206 119701. 3212 11970). 3216-9 l1970l.3242(1971~. 324311971) and 327511972]

39


cleaning industry. Furthermore, they rejected the relevance of comparisons with cleaners directly employed by government departments on the grounds that these cleaners were employed by a non-profit making organisation. The Industrial Arbitration Board appeared to accept the employers’ position that the relevant industry was the contract cleaning industry, although they still found them in breach of clause I.(b) in five of the nine cases.

The’ unions’ concern over the question of industry determination had led them on an earlier occasion to seek amendments to the terms of clause I of the Fair Wages Resolution. The 1968 Trade Union Congress saw a delegate from the Civil Service Union put the following motion:

This congress considers that the government should take immediate steps to ensure that contracts in the civil service should be res- tricted to firms undertaking to pay rates and conditions not less favourable than those established by negotiation or arbitration in the appropriate part of the public service.23

This motion was carried and the General Council of the Trade Union Congress then wrote to the Chancellor of the Exchequer requesting that the following paragraph be inserted in all government contracts after the Fair Wages Resolution:

Where the work carried out is similar to that done within the industrial or non-industrial civil service the contractor shall pay the rates and observe hours and conditions of labour established in the appropriate part of the civil service where these are more favourable than would apply under paragraph 1.24

Initially. the government refused to accede to this request on the grounds that the proposals were incompatible with the comparability principle on which civil service pay determination was based, and because they were likely to be inflationary in

23 AnnualReporr olthe Trades UnmnCongass. 1968. p. 433 24 Annual Repon at the Ttadss Unron Conpass. 19 70. P 190

their impact.25 But the unions continued to press their claim and eventually the Civil Service Department agreed that from April 1975 all government cleaning contracts would contain a clause requiring the contractor to pay staff employed to clean government offices wages not less than those paid to local authority staff engaged on similar work.26

This problem of specifying the appropriate industry for comparison purposes was also promin- ent in a number of other clause 1 references to the Industrial Arbitration Board. In particular, there was disagreement over the question of the appropriate industrial classification of ancillary groups of workers such as truck drivers.27 and over the question of whether the specialised nature of the work performed by certain contractors placed them in a separate industry or in a subsection of a larger industrial groupfa The Board did not appear to consistently apply any general principles in their judgements on questions raised in this area. Critical questions such as whether the appropriate industrial classification should be arrived at by considering the nature of the inputs or the output of the contractors’ production process remained unanswered by the Board.

In references alleging breach of clause 1 there was frequently disagreement over the specification of the appropriate geographical limits of the area or district within which the terms and conditions of employment were to be compared. In contrast to clause I.(a) there is no explicit mention of a ‘district’ element in the wording of clause l.(b), but in practice disputes under clause I.(b) invariably involved consideration of the relevant geographical limits for comparing employment terms and conditions. This geographical area or ‘district’ issue was a major source of disagreement in cases where the contractor sought to avoid comparisons being made with plants in high wage areas such as Coventry?B and in cases where the contractor was the sole or dominant employer in the local labour

25 National Board lor Prras and Incoma Ropcrr No. 168. Pay and Condmons in the Contract Clemmg Industry. Cmnd 4673. Cpnl 1971. Appendix C. Para 3. p. 73

26 Annual Report 0I the Ttades Unron Cangmrr. 1 9 15. p 5 1 27 Forsaample.AwardNo 3290(1974) 28 Forsaample.AwardNor 3285119731and 328811974) 29 For example. *wad No 3288 i 19141

40

market.30 Once again, the decisions of the Board failed to provide any detailed guidance for resolv- ing these matters.

A final issue of longstanding concern to unions in clause I disputes was the question of whether the Board should, in considering whether a contractor's terms and conditions of employment were less favourable than established terms, concentrate solely on the particular terms raised in the refer- ence or whether it should examine these in relation to the full range of terms and conditons of employment. In this regard, Wedderburn and Davies considered that there were fair wage awards that could be interpreted as supporting either view, or sometimes even both positions at once.31

This particular problem has been explicitly taken account of in the provisions of Schedule I 1 of the 1975 Employment Protection Act.32 This schedule permits unions to bring claims before the Central Arbitration Committee in order to secure the observance of 'recognised' terms and conditions. But where no such recognised terms and conditions exist, the relevant standard is to be the 'general' level of terms and conditions. In deter- mining what is 'less favourable' under this Schedule, the Central Arbitration Committee is to consider the full range of employment terms and conditions in its decisions, and not just the issues in dispute33 As the Central Arbitration Committee is now responsible for arbitrating fair wages disputes, one should expect to see a more consistent ap- proach emerge from the judgements which involve this particular question.

While the overwhelming majority of fair wages arbitration cases involved alleged breaches of clause I , there was a small but not unimportant group of cases concerned with alleged breaches of clause 4, i.e., interference with the freedom of workers to join a trade union. There was a total of

30 Foraxampla. Award No 3285(1973l 31 Weddarburn. K '4 and Oawes. P L , fmploymenl Gnevancer and

Oispurss Procedures ,n Bntarn University of Caldornta Press. Berkeley and Loshgsles. 1969. p 197

and Beaumont. P 8 , '.Ths 6msh Labor Goranmant's Industrial Relahons

33 Central Arbitration Committee Award N O 28. Wdlodwook Inlemd- rronal Lrd Y Tranrpon and Gsnsrdl Wol(r*m'Unron. 1976 (This was BCtuaIly an Award under Sacinn 8 01 the Terms and Conditona 01 Employment Act. 1959 1

32 Thrs schedule rs one of the measufes d t x u w d m Thornson. A W J

Program. , C O ~ ~ ~ ~ ~ l ~ f ~ l ~ ~ ~ ~ ~ ~ ~ L ~ W J O ~ ~ d ~ , VOl 9, May 1476

nine clause 4 references to the Board34 (although one dispute was withdrawn and eventually settled through negotiation), but in none of these was the union claim of non-compliance with clause 4 upheld. (See Table 2.) The narrow view of the meaning of clause 4 adopted by the Industrial Arbitration Tribunal may be illustrated by the following examples taken from this group of awards.

The Board's decisions in these disputes tended to support the established bargaining arrange- ments in the relevant plant or firm. This was well illustrated in Award No. 300935 where some 90 of the 670 toolmakers at the contractor's plant resigned from the Amalgamated Engineering Un- ion and joined a small association that claimed to negotiate separately for toolmakers. Under the threat of a strike being called by the shop stewards of the engineering union, the contractor sought to dissuade the toolmakers from joining the association. This attempt was unsuccessful and eventually the employer dismissed those men who persisted with their demand to join the tool-makers' association, although they were to be re-engaged if they agreed to return to work as members of the engineering union. The toolmakers' association claimed that this action infringed clause 4 of the resolution. The rejection of this claim by the Board was very much in keeping with the general reluc- tance of institutional bodies in Britain to grant recognition to small, breakaway unions on the grounds that they are likely to result in a splinter- ing of existing bargaining units.%

A second source of dispute which has led to allegations of non-compliance with clause 4 of the resolution has been where the contractor has refused to negotiate with a union. In Award No. 307137the union argued that, although clause 4 did not expressly state that employers should recognise trade unions, such recognition must be implicit in the clause, as the freedom to join a un ion was

34 Award Nos. 2181 (19531. 2672 (1957). 2815 (1960). 2821 119611. 3009 (1964). 3039 (1964). 3071 (19651. 3612 (19701 and 3267(1972)

35 Industrial Court Award No. 3009. ffdtmndl Assosation of Tool- makers Y Pressed S t d COmpdnY t td, 1 964

36 Lemsr. S hirlev W , fimJr#rray Unvons and Ihe Small Trade U n m , George Allen and Unwin. London. 1961, a p . ch 5

3 7 Industrial Court A m t d No. 307 1. NdDonaIUnmn of Dwm. Blsachcrs and Textile Worten Y W m Denby L I d . ( 1 965)

41


meaningless in the absence of the union's ability to represent and negotiate on behalf of the individual worker. But the Board, in keeping with its previous decisions on this subject,% rejected this claim. Union attempts to press for changes to this aspect of clause 4 have so far come to nothing.39

CONCLUSIONS In this paper, we have examined the major

factors that have been held to account for the limited use and 'success' of the Fair Wages Resolu- tion as a measure for protecting the employment standards of employees engaged on work done under contract to government departments. This examination of the record of the Fair Wages Resolution has, hopefully, been of interest in its own right, but there is little doubt that the importance of the issues outlined here is much enhanced by the recent legislative extension (Schedule I 1 of the Employment Protection Act,

1975) of terms similar to clause I.(b) of the resolution to the whole of British industry.

From the union point of view, there would seem to be considerable potential value in Schedule I I. but its ultimate impact will very largely depend on how the Central Arbitration Committee chooses to interpret its provisions.40 The importance of this interpretative element suggests that many of the issues discussed in the last two sections of this paper will have a great deal of bearing on the final effect of this important legislative measure.

3 8 AvardNos 2821(1961)and 3039(1964) 3 9 Soclmn 11(3l of the Employment Prolation ACI 1915. which

permit. a unmn to apdv to the Advisory Concilletmn and Arbitration S a ~ i c a lor "lulher rsogmiion" ta ewer wiuattona where an employer may ,eluw 10 bargain on some lopica while raognlsmg the union an general terms. may ba impanant m thm rqard m tho tuture

40 I n thia regard it 1s m a t important 10 nole that 8ll Central Arbilralmn Commiltss Awards are omnpt from pay restrictmns and t h Commottss haa already made t i clear that 11 wdl gwe little attenlion u) mmmm policy convderalmnr in reachinp IIa dsiaions. Smlndusrnal Rsl#:rms Revtaw and Report.No. 147,March 1977.p. 10

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experience under the fair wages resolution of 1946*

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