THE CONDITIONS OF EMPLOYMENT AND NATIONAL ARBITRATION ORDER, 1940,
DATED JULY 18, 1940, MADE BY THE MINISTER OF LABOUR AND NATIONAL SERVICE UNDER REGULATION 58AA OF THE DEFENCE (GENERAL) REGULATIONS, 1939.
1940 No. 1305.
The Minister of Labour and National Service (hereinafter referred to as “the Minister”) with a view to preventing work being interrupted by trade disputes and by virtue of the powers conferred on him by Regulation 58AA of the Defence (General) Regulations, 1939*, hereby makes the following Order:-
PART I.
National Arbitration.
[Constitution of National Arbitration Tribunal.]
1. For the purpose of settling trade disputes which cannot otherwise be determined there shall be constituted by the Minister a tribunal to be called “the National Arbitration Tribunal” and the provisions of the Schedule to this Order shall have effect with respect to the constitution and proceedings of the Tribunal.
[Trade dispute procedure.]
2.- (1) If any trade dispute exists or is apprehended that dispute, if not otherwise determined, may be reported to the Minister by or on behalf of either party to the dispute and the decision of the Minister as to whether a dispute has been so reported to him or not and as to the time at which a dispute has been so reported shall be conclusive for all purposes.
(2) The Minister shall consider any dispute so reported to him as aforesaid and if in his opinion suitable means for settling the dispute already exist by virtue of the provisions of any agreement to which the parties are organisations representative of employers and workers respectively, he shall refer the matter for settlement in accordance with those provisions: so, however, that where a matter has been referred for settlement in accordance with the provisions of this paragraph and there is a failure to reach a settlement or, in the opinion of the Minister, a settlement is unduly delayed, the Minister may cancel the reference and substitute therefor a reference to the National Arbitration Tribunal.
(3) Where, in his opinion, no such suitable means of settlement exist as are mentioned in the last preceding paragraph of this Article, the Minister shall take any steps which seem to him expedient to promote a settlement of the dispute and may, if he thinks fit, refer the matter for settlement to the National Arbitration Tribunal.
(4) Where steps to promote a settlement of the dispute have been taken by the Minister under the provisions of paragraph (2) or paragraph (3) of this Article (otherwise than by means of a reference to the National Arbitration Tribunal) and those steps have not resulted in a prompt settlement of the dispute, the Minister shall refer the dispute for settlement to the National Arbitration Tribunal and shall do so within twenty-one days from the date on which the dispute was so reported to him as aforesaid, unless, in his opinion, the special circumstances of the case make it necessary or desirable to postpone such a reference.
(5) Any agreement, decision or award made by virtue of the foregoing provisions of this Article shall be binding on the employers and workers to whom the agreement, decision or award relates and, as from the date of such agreement, decision or award or as from such date as may be specified therein, not being earlier than the date on which the dispute to which the agreement, decision or award relates first arose, it shall be an implied term of the contract between the employers and workers to whom the agreement, decision or award relates that the rate of wages to be paid and the conditions of employment to be observed under the contract shall be in accordance with such agreement, decision or award until varied by a subsequent agreement, decision or award.
[References to National Arbitration Tribunal for advice.]
3. The Minister may refer to the National Arbitration Tribunal for advice any matter relating to or arising out of a trade dispute or trade disputes in general or trade disputes of any class or any other matter which, in his opinion, ought to be so referred.
PART II.
Lock-outs and Strikes.
[Prohibition of lock-outs and strikes.]
4. An employer shall not declare or take part in a lock-out and a worker shall not take part in a strike in connection with any trade dispute unless the dispute has been reported to the Minister in accordance with the provisions of Article 2 of this Order and twenty-one days have elapsed since the date of the report and the dispute has not during that time been referred by the Minister for settlement in accordance with the provisions of that article.
PART III.
Recognised terms and conditions of employment.
[Obligation to observe recognised terms and conditions.]
5.-(1) Where in any trade or industry in any district there are in force terms and conditions of employment which have been settled by machinery of negotiation or arbitration to which the parties are organisations of employers and trade unions representative respectively of substantial proportions of the employers and workers engaged in that trade or industry in that district (hereinafter referred to as “recognised terms and conditions”) all employers in that trade or industry in that district shall observe the recognised terms and conditions or such terms and conditions of employment as are not less favourable than the recognised terms and conditions.
(2) For the purposes of this Article, and subject to the provisions of paragraph (4) hereof terms and conditions of employment shall not be deemed to be less favourable than the recognised terms and conditions if they are in accordance with the terms and conditions relating to workers engaged in similar work which are applicable under —
(a) any agreement to which the parties are organisations of employers and trade unions which are representative respectively of substantial proportions of the employers and workers engaged or employed in the trade or industry in the district in which the employer is engaged; or
(b) any decision of a joint industrial council, conciliation board or other similar body constituted by organisations of employers and trade unions which are representative respectively of substantial proportions of the employers and workers engaged or employed in the trade or industry in the district in which the employer is engaged; or
(c) in the absence of any such agreement or decision as is mentioned in the foregoing provisions of this paragraph, any agreement between the particular employer concerned and a trade union which is representative of a substantial proportion of workers employed in the trade or industry in which the employer is engaged; or
(d) any award made by the National Arbitration Tribunal, the Industrial Court or any other body or person acting in the capacity of arbitrator relating to the terms and conditions of employment observable by an employer in the same trade or industry in the same district; or
(e) any statutory provisions relating to remuneration, rates of wages, hours or working conditions, unless those provisions are themselves less favourable than the provisions of any such agreement, decision or award as is mentioned in the foregoing provisions of this paragraph, being an agreement, decision or award relating to the particular employer concerned or any employers’ organisation of which he is a member or to which such an employer or such an organisation is a party.
(3) If any question arises as to the nature, scope or effect of the recognised terms and conditions in any trade or industry in any district or as to whether an employer is observing the recognised terms and conditions or is observing terms and conditions which are not less favourable than the recognised terms and conditions, that question may be reported to the Minister by any organisation of employers or any trade union which in the opinion of the Minister is an organisation or trade union that habitually takes part in the settlement of wages and working conditions in the trade or industry concerned and if so reported the question shall thereupon be dealt with in the same manner as if it were a trade dispute reported to the Minister under the provisions of Article 2 of this Order and the provisions of that Article shall apply accordingly: so, however, that in making an award on any question referred by the Minister by virtue of the powers conferred by this paragraph the National Arbitration Tribunal shall have regard not only to the provisions of paragraph (2) of this Article, but also to any collective agreements concerning the terms and conditions of similar workers in comparable trades or industries.
(4) Where an award has been made by the National Arbitration Tribunal in consequence of a report made under the foregoing provisions of this Article then as from the date of the award or from such date as the Tribunal may direct, not being earlier than the date on which the question to which the award relates first arose, it shall be an implied term of the contract between the employer and workers to whom the award applies that the rate of wages to be paid and the conditions of employment to be observed under the contract shall, until varied
by a subsequent agreement, decision or award such as is mentioned in the foregoing provisions of this Article, be in accordance with the award.
(5) Any reference in the foregoing provisions of this Article to an agreement, decision or award shall be construed as a reference to that agreement, decision or award as modified by any subsequent agreement, decision or award.
PART IV.
Departures from trade practices.
[Recording of departures from trade practices.]
6. Where in any industry or undertaking (or in any branch or department of an industry or undertaking) there is or has been during the period of the present emergency any departure from a trade practice, the following provisions shall have effect:-
(1) Any employer or organisation directly affected by such a departure may submit to any other organisation or employer directly so affected a memorandum in duplicate signed by or on behalf of the employer or organisation submitting it containing full particulars of the trade practice concerned and the departure therefrom.
(2) The organisation or employer to whom any such memorandum is submitted shall, within ten days of the receipt thereof, either —
(a) return one copy of it to the employer or organisation submitting it with a memorandum of approval endorsed thereon; or
(b) furnish to such organisation or employer a counter memorandum in duplicate specifying particulars of the trade practice concerned and the departure therefrom.
(3) Where a memorandum has been submitted by an employer or organisation to another organisation or employer in accordance with the foregoing provisions of this Article:-
(a) the endorsed memorandum or the memorandum together with the counter memorandum may be deposited at a local office of the Ministry of Labour and National Service by any employer or organisation directly concerned; or
(b) if the provisions of paragraph (2) of this Article have not been complied with, a copy of the memorandum together with a statement as to the date on which it was submitted to the other organisation or employer may be deposited at a local office of the Ministry of Labour and National Service.
(4) Where a memorandum and counter memorandum have been deposited in accordance with paragraph (3)(a) of this Article or where a copy of a memorandum has been deposited in accordance with paragraph (3)(b) thereof any duly authorised officer of the Ministry of Labour and National Service may enter any establishment to which the document in question relates and require the employer or any worker to give such information as it is in his power to give with respect to the trade practice concerned. The officer shall thereupon prepare a memorandum recording the information so obtained by him and shall deposit a copy thereof at a local office.
(5) Any employer or organisation having or claiming to have an interest in a memorandum or counter memorandum so deposited as aforesaid, may at any time inspect and take copies of any such memorandum or counter memorandum.
PART V.
General.
[Interpretation.]
7. In this Order unless the contrary intention appears the following expressions have the meanings hereby respectively assigned to them, that is to say: –
“lock-out” means the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute, done with a view to compelling those persons, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment;
“organisation” means an organisation representative of employers or an organisation representative of workers as the case may be;
“period of the present emergency” means the period beginning with the first day of September, 1939, and ending on such day as His Majesty may by Order in Council declare to be the date on which the emergency that is the occasion of the making of this Order came to an end;
“strike” means the cessation of work by a body of persons employed acting in combination, or a concerted refusal or a refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or any person or body of persons employed, or to aid other workmen in compelling their employer or any person or body of persons employed, to accept or not to accept terms or conditions of or affecting employment;
“trade dispute” means any dispute or difference between employers and workmen, or between workmen and workmen connected with the employment or non- employment, or the terms of the employment or with the conditions of labour of any person;
“trade or industry” includes the performance of its functions by a public or local authority;
“trade practice” means any rule, practice or custom in respect of the employment, non-employment, conditions of employment, hours of work or working conditions of any worker or class of worker in any establishment or class of establishment or in any trade or industry or branch of trade or industry;
“workman” means any person who has entered into or works under a contract with an employer, whether the contract be by way of manual labour, clerical work or otherwise, be expressed or implied, oral or in writing and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour.
[Short title and commencement.]
8. This Order may be cited as the Conditions of Employment and National Arbitration Order, 1940, and shall come into force on the 25th day of July 1940.
Signed by Order of the Minister of Labour and National Service this 18th day of July 1940.
T. W. Phillips,
Secretary of the Ministry of Labour and National Service.
SCHEDULE.
CONSTITUTION AND PROCEEDINGS OF THE NATIONAL ARBITRATION TRIBUNAL.
1. The National Arbitration Tribunal shall consist of the following persons appointed by the Minister, that is to say, three appointed members, one of whom shall be chairman, and two other members, one of whom shall be chosen to represent employers and the other to represent workers.
2. Panels of persons chosen to represent employers and workers respectively shall be constituted by the Minister after consultation with the British Employers’ Confederation and the Trades Union Congress respectively and the members chosen to represent employers and workers at any sitting of the Tribunal shall be selected by the Minister from those panels.
3. The appointed members of the Tribunal shall hold office for such term and on such conditions as to retirement as may be determined by the Minister.
4. The Minister shall appoint a secretary to the Tribunal and may appoint such other officers and servants as he may consider necessary.
5. The quorum necessary to constitute a sitting of the Tribunal shall consist of one appointed member, one member chosen to represent employers and one member chosen to represent workers.
6. – (1) The Tribunal shall make its award or furnish its advice as the case may be without delay and where practicable within fourteen days from the date of reference.
(2) An award on any matter referred to the Tribunal for settlement may be made retrospective to such date not being earlier than the date on which the dispute or question to which the award relates first arose. The decision of the tribunal as to such date shall be conclusive.
7. Save as otherwise expressly provided in this Order, the Tribunal may regulate its procedure and proceedings as it thinks fit.
8. If any question arises as to the interpretation of any award of the Tribunal the Minister or any party to the award may apply for a decision on such question and the Tribunal shall decide the matter after hearing the parties, or without such hearing provided the consent of the parties has first been obtained. The decision of the Tribunal shall be notified to the parties and shall be binding in the same manner as the decision in an original award.
* See S.R. & Ο. 1940 No. 1217.
Source: Statutory Rules and Orders, 1940, volume 2.
Further reading: Ewing & Moretta, Labour Law, the Cold War, and the Right to Strike, (Google Books preview).