LEGALISM AND TRADE UNION IMMUNITIES

Z- M. S. Siddiqi*
To INJURE ANOTHER intentionally without just cause or excuse is
an actionable wrong. But this statement is not as simple as it looks. Like
many other general statements of principle, it presents difficulties when
applied to particular situations. What are the standards for determin­
ing injury and for determining the validity of a justification ? Each case
presents a new situation. Equities differ from case to case. Just cause
depends upon the circumstances of each case. Absolute standards,
therefore, can never be laid down.
Courts endeavour to do justice on the basis of the evidence befpre
them. They try to determine the equities on the basis of the pleadings
and proofs of the parties. Sometimes all the facts come to light. In
many other cases, however, artificial rules of procedure and evidence, and
other difficulties, hide some of the truth which should be relevant. And
yet in such cases we may at times find the courts seeming conscious, if
somewhat vaguely, of considerations, which do not find mention in their
judgments but which can be read between the lines. In other cases of
this kind, on the other hand, blinders and legalisms may prevail.
In Rookes v. Barnard^1 decided by the House of Lords in 1964, the
British Overseas Airways Corporation (B.O.A.C.) had entered into an
agreement in 1949 with their draughtsmen's union. This agreement
banned all strikes and lockouts. It also provided that any dispute not
settled by the parties should be referred to arbitration. The union also
had an informal agreement with the company that all employees should
be union members. Rookes was employed as a skilled draughtsman in
the design office at London Airport. He quarrelled with union officials
and resigned from the union. Thereupon the union passed a resolution
stating that if he was not removed from the design office all its members
would strike. The company, notified of this decision, suspended Rookes,
and later dismissed him, paying one week's salary in lieu of notice.
Rookes sued the union officials for damages, charging the use of unlawful
means to induce the company to terminate its contract of service with
him. The jury, in a special verdict on the facts, found that there was a
conspiracy to threaten a strike; that such threats were made by the union
officials; that they caused the discharge of Rookes; and that Rookes*
damage was £7,500. On these facts Sachs, J., the trial judge, con­
cluded that the threats to strike in breach of the agreement were unlawful
acts; that as such they were acts constituting actionable intimidation;
that the acts harmed Rookes; and that the union officials were not

♦Research Associate, The Indian Law Institute, New Delhi.

1. [1964] 2 Weekly L.R. 269 (H.L.).
1966] LEGALISM AND TRADE UNION IMMUNITIES 219

protected by the T r a d e Disputes Act, 1906. 2 But the judge before parting
with the case observed : " T h e case m a y , however, still have to be con­
sidered in which a jury holds that there were two equal concurrent
purposes of a conspiracy, the one to further a trade dispute, the other
something different." 3 T h a t issue was not framed by the pleadings in
the case at bar.
T h e Court of Appeal reversed that decision holding that although
some kinds of intimidation can be tortious, a mere threat to break a
contract is not. 4
T h e House of Lords in turn reversed the decision of the Court of
Appeal. 5 It reasoned that the union officials could be liable for threaten­
ing a n illegal breach of contract if that threat did in fact cause loss. I t
rejected a distinction, stressed by the Court of Appeal, between a threat
to commit a tort and a threat to break a contract. Lord Reid said
explicitly that " t h e r e is no technical reason requiring such a distinction
between different kinds of threats," a n d that he saw no other ground for
making any such distinction. 6 T h e House of Lords relied on two Irish
cases 7 for the proposition that a threat to call a strike in breach of
contract is an unlawful act.
But on the q u a n t u m of damages the House of Lords ordered a new
trial. Agreeing with the union official's argument that the facts did not
justify punitive damages, and that the trial court should have so instruct­
ed the jury, 8 Lord Devlin observed t h a t there seemed to be no evidence
that the union officials were motivated by malevolence or spite against
Rookes.
They wronged him not primarily to hurt him but so as to achieve their own
ends. If that had not been their dominating motive, then what they did
would not have been done in furtherance of a trade dispute and the whole
case has been fought on the basis that it was. It is said that they persisted
in believing that their closed shop position was endangered by the appellant's
conduct even when their official leaders told them that it was not. Be it so;
pig-headedness will not do. 9
Wedderburn, in an article 10 attacks the j u d g m e n t of the trial court
mainly on two grounds : first, that there was no such common law tort;
and, second, that even if there was, there was statutory immunity. T h e r e
was no common law tort because a threat to break a contract is not
a threat to do an illegal act of the kind required to establish either
intimidation or interference with a business. T h e r e was statutory

2. Rookes v. Barnard, [1961] 3 Weekly L.R. 438 (T.C.).

3. Id. at 449.
4. [1962] 3 Weekly L.R. 260 (C. A.).
5. [1964] 2 Weekly L.R. 269 (H.L.).
6. Id. at 280.
7. Cooper v. Millea, [1938] LR. 749; Riordan v. Butler, [1940] I.R. 347.
8. [1964] 2 Weekly L.R. 269 (H.L.).
9. Id. at 333-34.
10. Wedderburn, " T h e Right to Threaten Strikes," 24 Modern L. Rev. 572 (1961).
220 JOURNAL OF THE INDIAN LAW INSTITUTE [VOL. 8 : 218

immunity under the T r a d e Disputes Act, 1906, which protects union

officials' threats to induce breaches of contract of employment. Both
arguments have important relevance to I n d i a n Law and need careful
examination.
I n contracts the duties are fixed by the parties. Because of the need
for privity of contract a breach of such a duty does not ipso facto give a
right of action to a third person. A fortiori a mere threat to commit
such a breach should also not give such a right to a third person. If
the union members had actually struck, in breach of their union's and
their own contracts without any threat to strike, neither they nor their
union could have been liable to Rookes. A fortiori neither they nor
their union should be liable to him for a mere threat by their union of
such a strike.
T h e second argument is based on the protection afforded by
section 3 of the T r a d e Disputes Act, 1906. This section reads :
An act done by a person in contemplation or furtherance of a trade dispute
shall not be actionable on the ground only that it induces some other person
to break a contract of employment or that it is an interference with the
trade, business, or employment of some other person, or with the right of
some other person to dispose of his capital or his labour as he wills.11
T h e first part of the section protects an inducement, in furtherance
of a trade dispute, to break a contract of employment. " A threat so to
induce is not, therefore, tortious intimidation because the act threatened
is not unlawful." 1 3 T h e threat here consisted of inducement by the
trade union officials of simultaneous breaches of the union's contract not
to strike, and of workers' contracts of employment. T h e second part of
the section protects a breach of a contract, and so a threat to break a
contract not to strike, as well as a threat to break a contract of employ­
ment. T h e r e is much force in these arguments. But Sachs, J., in the
trial court, as well as the House of Lords evaded them by taking refuge
in some obiter dicta 1 3 of Lord Loreburn in Conway v. Wade14 to conclude
t h a t illegal threats are not protected by either part of the section, because
the word " o n l y " in the section shows that the protection is limited to
inducing breaches of contracts of employment only, or interference with
trade, etc., only, a n d not to threats. T h e courts relied on earlier judicial
opinion which not only was obiter but was pronounced at a time when
t h e law was in a confused state as to the meaning of a " t h r e a t . "
W h a t could be th~ reason for the decision of that eminent court that
m a d e it tread the tortious winding path it took to make the union
officials liable? It may have been to protect an individual's right of

11. Cf section 18 of the Indian Trade Unions Act, 1926, which is similar to
section 3 of the Trade Disputes Act, 1906.
12. Supra note 10, at 591.
13. Supra note 2, at 447.
14. [1909] A.C. 506.
1966] LEGALISM AND TRADE UNION IMMUNITIES 221

employment against the growing, a n d to some, monopolistic powers of

trade unions. This possibility is buttressed by the recent trend in legal
and judicial thinking and pronouncements in England to safeguard an
individual's interests when they clash with a trade union's power. I n
Bonsor v. Musicians' Union,1* a member of the union was expelled in
breach of the rules of the union because he h a d failed to pay one
instalment of dues. H e could find no other employment because of
prevailing union shop conditions for musicians. T h e court held t h a t
the union was liable to him in damages for a breach of con­
tract. In Spring v. National Amalgamated Stevedores and Dockers
Society,™ the society admitted the plaintiff to its membership in breach of
an agreement between the society a n d its affiliating union. U n d e r
pressure from the affiliating union, the society then h a d to expel the
plaintiff. T h e Court of Chancery decreed that his expulsion was void
and that he continued a member of the society entitled to all its benefits
and privileges. In Huntley v. Thornton,11 the court held that union
members had conspired to h a r m the plaintiff by making him lose his j o b
for having refused to comply with a strike call; that the acts of the union
members were not done to further their legitimate t r a d e interests; and
that they were not protected by the T r a d e Disputes Act, 1906, because
what they were furthering was not a trade dispute but merely a grudge
against the plaintiff.
In Rookes v. Barnard19 lurk questions of uses and abuses of union
and closed shops. But inasmuch as the rights or wrongs of the guard
between Rookes and the union were not litigated the courts ignored
these issues that should have been crucial. T h e closed shop has been
accepted as a source, and a normal use, of union power in practice in
England, and by both law and practice to some extent in the U n i t e d
States. T h e opponents of the closed or union shop argue that such
agreements abridge the basic freedom to work of non-unionists; t h a t it
is wrong and undemocratic to compel workers to join unions of which
they do not approve; and that it makes union officials become dictatorial
and arbitrary. T o these charges unions reply that the individual's
freedom to work must always be conditioned upon the willingness of some
employer to hire him; that the collective agreements which the unions
negotiate benefit all employees, while minority unions and individuals
have no right even to bargain with the employer; and t h a t compulsory
union membership is the only means by which individual workers can
pay for the benefits union brings. An average individual worker is no
match for his employer in bargaining power. It is only through collective
action that some degree of equality can be achieved. Union power is
reasonable when used to protect union interests or to improve

15. [1956] A.C. 104.

16. [1956] 1 Weekly L.R. 585.
17. [1857J 1 Weekly L.R. 321.
18. [1964] 2 Weekly L.R. 269 (H.L.).
222 JOURNAL OF THE INDIAN LAW INSTITUTE [VOL. 8 : 218

conditions of employment. But it may become arbitrary and unjust

when directed against an individual so as to injure him maliciously.
I n Rookes v. Barnard, the union leaders evidently thought the workers'
solidarity more important than the plaintiff's welfare. This attitude
they could justify on the ground that Rookes, while outside the union
and not sharing union responsibilities, would have enjoyed the same
benefits as the union members. This would have caused discontent
among the union members. Whether they were right or wrong, they
must be assumed—absent proof to the contrary—to have acted in a bona
fide attempt to protect their interest. T o h a r m the plaintiff was not
their predominant purpose. In order to determine the equity of the
case the Court should have investigated Rookes' quarrel with the union
officials. W h y did he resign from the union membership? H a d he
run against union's chairman and been defeated? H a d the union
passed a resolution censuring him for disloyalty? O r had he come to a
union meeting roaring drunk a n d had loudly attacked, the union's
treasurer, without basis, for stealing union money? T h e Court did not
investigate the reasonableness of the parties' conduct. By its uninform­
ed j u d g m e n t , it impaired union immunities in general by giving too
narrow and too legalistic an interpretation to the statute. In England,
India, and the United States, a very special public policy in labour law
has been to recognize the union's need for special protection and
immunities. T h e courts have usually given a broad interpretation to
statutes codifying such immunities. T h e y have interpreted the statutes
so as to give their benefit to workers, because it was for the workers'
benefit that the statutes were enacted.
T r a d e unionism in India lags far behind its counterparts in the
United K i n g d o m and in the United States. T h e central trade disputes
and trade union laws do not even provide for recognized unions.
Union a n d closed shops are, therefore, a far cry from our system. But
trade unionism needs to grow and become more powerful in the interests
of workers and in the interests of industrialism. It will grow, probably,
with the growth of industries. W h e n the country becomes more
industrialized and trade unions more powerful, the I n d i a n courts may
have to decide cases similar to Rookes v. Barnard. At present very few
cases arise where trade unions or their members are sued. Rohtas
Industries Staff Union v. State of Bihar1Q was one of the few cases. T h e r e
the workers h a d struck because of the company's failure to carry out an
award. Ultimately they agreed to refer their disputes to voluntary
arbitration. Before the arbitrator the employer contended that the
workers had conspired to resort to an illegal strike and were accordingly
liable to pay compensation to the company. Agreeing, the arbitrator
awarded heavy damages against the unions.
T h e unions petitioned the Bihar H i g h Court for certiorari to quash
the award. T h e y urged that the arbitrators h a d been in the wrong in

19. [1962] 2 L.LJ. 420.

1966] LEGALISM AND TRADE UNION IMMUNITIES 223

finding that the workers had conspired and also in finding t h e m not pro­
tected by section 18 of the T r a d e Unions Act, 1926. As to the first
contention, Mr. Chief Justice R a m a s w a m i (now a J u d g e of the Supreme
Court) observed that it was established law that if there were more t h a n
one purpose actuating a combination, the liability would depend on the
predominant purpose. By ignoring this principle and failing to deter­
mine the predominant purpose of the strike, the arbitrators h a d erred on
the law; their award must be quashed on this ground. T h e arbitrators
had also erred, he said, in holding that the workers could not claim
immunity under section 18 because the strike was illegal. 20 H e held
that the employers had no right of civil action for damages against the
employees participating in a strike which was illegal under the Industrial
Disputes Act, 1947.21 arbitrators
This decision was more realistic than the decision in Rookes v.
Barnard at least on two grounds. First, the court refused to hold workers
liable for conspiracy because the arbitrators h a d not investigated its
ulterior object; the English judges on the other h a n d held union
officials liable without investigating the cause of Rookes' quarrel with
them, and the reasons for his resignation from the union membership
and for his refusal to rejoin the union. Secondly, the Indian judge
broadly interpreted the statutory immunities for union members than his
English counterparts, who chose to ignore the sociological attitude
to labour law by narrowly interpreting similar statutory immunities.

20. Id. at 426.

21. Id. at 430.