*302 Greig and Others v Insole and Others 1977 G. No. 22461977 J ...

[1978] 1 W.L.R. 302 Page 54
[1978] 1 W.L.R. 302 [1978] 3 All E.R. 449 (1978) 122 S.J. 162 [1978] 1 W.L.R. 302 [1978] 3 All E.R. 449 (1978)
122 S.J. 162
(Cite as: [1978] 1 W.L.R. 302)
to suffice to carry a resolution but “subject to confirmation
by the Cricket Council.” Under
rule 7 , any appeal from a decision
from a number of specified sub-committees
of the TCCB has to be referred not to the TCCB but
“to the Cricket Council.” The realisation of the
TCCB that it is indeed responsible to the Cricket
Council in the exercise of its functions is well illustrated
by the fact that the important decisions of
policy taken by it at its meeting of July 15, 1977,
were all made subject to the Cricket Council's supporting
the TCCB's recommendations. If the Cricket
Council had reversed the recommendations, the
TCCB would have had no authority whatever to act
on them, save by the unanimous consent of all its
members.
In these circumstances, in answer to question
(G) above, I hold that the TCCB is not an
“employers' association” within the statutory definition
on the narrow, but to my mind conclusive,
ground that, in exercising its functions, it is responsible
not to its members but to an entirely different
body, the Cricket Council. It has not been
submitted, *362 and I think could
not be submitted on the facts, that the Cricket
Council is itself an “employers' association.”
The right to work": ques-
XVIII “
tion (H) above
The grounds on which I have decided that
neither of the defendant bodies is an “employers'
association” within the meaning of the Act of 1974
have made it unnecessary to deal with a number of
broader questions that were canvassed in argument
in relation to that Act. One very important such
question is whether it can be properly claimed that
the “principal purposes of an organisation” include
the “regulation of relations between employers …
and workers” for the purpose of section 28
(2) (a) , merely because one of its principal
purposes includes the ordaining of rules setting out
the qualifications which a person must possess if he
is to enter or remain in a specified field of employment.
The defendants have submitted that the answer
to this question is in the affirmative and in this
context pointed to the definition of a “worker” in
section 30 (1) of the Act of 1974
as including a person who works “or seeks to work”
as therein mentioned.
If this construction of the Act of 1974 be
correct, it would appear to have the most far reaching
consequences. On this interpretation, it would
seem, it would be open to a number of employers
deliberately to associate themselves for the purpose
of agreeing that specified persons or categories of
persons should be disqualified from seeking or remaining
in employment with any of them. The association
having been founded, it would seem that
they could then claim that it constituted an
“employers' association,” and that, being such, it
enjoyed the immunities conferred by
sections 3 and 14 of the Act of
1974, so that its rules, however unreasonable, could
not be attacked as being in restraint of trade and it
would enjoy general immunity from liability in tort.
There are at least two possible answers to
this, at least to me, rather unattractive submission
on the part of the defendants. First, it may be that,
as the plaintiffs submit, the phrase “regulation of
relations between employers … and workers” in the
context of section 28 (2) (a) is apt
only to include the regulation of relations during
the subsistence of the period of employment and
thus cannot extend to rules which are designed to
prevent employment from ever arising.
Secondly, it is possible that, even if a hypothetical
association formed for the purposes to
which I have referred constituted an “employers'
association” within the statutory definition, its rules
could still be successfully attacked, not so much on
the grounds that they were in “restraint of trade,” as
on the broader grounds that they were contrary to
public policy as preventing persons' right to work.
A number of dicta of members of the
Court of Appeal in Nagle v. Feilden [1966] 2 Q.B.
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