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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macdonald v. Singer Manufacturing Co., Ltd [1923] ScotLR 370 (03 March 1923) URL: http://www.bailii.org/scot/cases/ScotCS/1923/60SLR0370.html Cite as: [1923] ScotLR 370, [1923] SLR 370 |
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Page: 370↓
[Sheriff Court at Dumbarton.
War — Emergency Legislation — Wages — Whether Advance Authorised by Award of Industrial Court Intended as an Addition to Actual Wage or to Prescribed Statutory Rate — Construction of Award and Orders — Wages (Temporary Regulation) Act 1918 (8 and 9 Geo. V, cap. 61), secs. 2 (3) and 4 (1) ( e).
A temporary statute, the Wages (Temporary Regulation) Act of 1918, enacted that for a certain period it should be an offence for an employer to pay wages at less than a prescribed rate or at less than a minimum rate substituted therefor by a statutory court. After the expiry of the Act and after the machinery created thereby, including a special tribunal with exclusive jurisdiction to deal with offences under the Act, had come to an end, a wage earner brought an action against her employers to recover wages alleged to be due to her under the temporary legislation and relative orders and awards. The defenders pleaded no jurisdiction on the ground that the special tribunal referred to above alone had jurisdiction to enforce the rates in question, and that the whole machinery for ascertaining such rates had ceased to exist. Held that as the wage earner's right to her wages remained a common law right notwithstanding that a statutory minimum rate might have to be read into the contract of employment, the Court had jurisdiction to entertain the action, and plea repelled.
The Wages (Temporary Regulation) Act 1918 made it an offence for any person who employed a workman to pay him wages at a rate less than a minimum, called in the Act “the prescribed rate,” applicable to workmen in the same class, or less than a minimum rate “substituted” therefor by a statutory court or by agreement approved by the Minister of Labour. By an award of the appropriate tribunal of 25th January 1919 a substituted rate was provided for workers in engineering shops of 5s. per week “over and above the week's earnings of the workpeople concerned calculated on the present basis.” A subsequent order of the Ministry of Labour extended this advance to those “to whom the prescribed rate in question is applicable.” By an award of the Industrial Court in proceedings at the instance of the trade union of certain workwomen in the engineering trade the award of 25th January 1919 was interpreted as entitling the wage earner to an advance of 5s. on the then “prescribed” or minimum rate of wages in the trade, stating at the same time what that rate was. A woman whose actual rate of wages during the period covered by her claim was in excess of the rate of wages authorised by the award of the Industrial Court brought an action for the increase of 5s. per week sanctioned by the award of 25th January 1919 on the ground that it was intended to be an addition to the actual wages paid, and that the Industrial Court had misinterpreted the original award. Held that the advance authorised by the award of the Industrial Court was a war advance on the “prescribed” or minimum rate of wages, and was not an addition to the actual earnings of any individual workwoman, and defenders assoilzied.
The Wages (Temporary Regulation) Act 1918 (8 and 9 Geo. V. cap. 61) enacts—Section 4 (1)—“For the purposes of this Act the prescribed rate of wages shall be as follows …( e) As respects a woman or girl to whom neither of the last two paragraphs applies, the prescribed rate shall be the time rate or other basis for determining wages (with any allowances for overtime, night work, week-end or holidays when worked, and additional war bonuses or war advances) paid on the said date [11th November 1918] by employers employing a majority of women or girls engaged on the same class of work in the trade or industry or branch thereof in the district in which she is employed. …”
The Industrial Courts Act 1919 (9 and 10 Geo. V, cap. 69) by section 6 (1) extended the provisions of the Wages (Temporary
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Regulation) Act 1918, subject to certain modifications, until the 30th day of September 1920. Helen Macdonald, Partick, pursuer, raised an action in the Small Debt Court at Dumbarton against the Singer Manufacturing Company, Limited, Clydebank, defenders, whereby she sought to recover payment of £18, 5s., subsequently restricted to £15, 18s. 5d., being the amount of wages alleged to be due to her by the defenders.
The pursuer's claim was based on an award of the Court of Arbitration, Engineers and Allied Trades, dated 25th January 1919—women workers—in terms of which an advance of 5s. per full ordinary week “over and above the week's earnings of the workpeople concerned calculated on the present basis” was made in the case of piece-workers.
The award in question (No. 174) stated, inter alia—“4. It was agreed by the parties at the hearing that any decision reached would only cover engineering shops, boiler shops, and foundries. The award of the Court in full settlement of the claim submitted is as follows:—5. That in addition to other advances granted from time to time by statutory rules and orders or by awards, the women concerned, aged eighteen years and over, shall receive a further war advance of 5s. per full ordinary week. … 7. In the case of piece workers, premium bonus workers, and others working on a system of payment by results, the amounts are to be paid at the rate of 5s. per full ordinary week over and above the week's earnings of the workpeople concerned calculated on the present basis. … 9. The rates in force on 11th November 1918 as modified by the advances provided for in clauses 5 and 6 hereof, shall be, and shall be deemed to be, the substituted rates of wages for the purposes of the Wages (Temporary Regulation) Act 1918. 10. The advances hereby awarded are to be paid as from the first full pay day in January 1919, and are to be payable in respect of the pay period for which payment was made on such pay day.”
The rates in force on 11th November 1918 referred to in section 9 of the above award were prescribed in the following Order of the Statutory Rules and Orders 1918, viz.—No. 546 (the Consolidated Women's Wages Order), dated 8th May 1918, made by the Ministry of Munitions, which provided as follows:—“First Schedule.—Part V. General Provisions.—Par. 41. In addition to the amounts payable to women or girls under any of the foregoing directions, there shall be paid over and above those amounts to all women and girls whilst employed on munitions work, whether working on time or on a system of payment by results, an advance which in the case of women of eighteen years of age and over shall be 6s. per full ordinary week.…”
No. 1073, dated 28th August 1918, provided as follows:—“First Schedule.—Par. 1. The earnings of all women and girls whilst employed on munitions work, whether working on time or on a system of payment by results, shall as from the beginning of the first full pay following 1st September 1918, or the date of the receipt of this order, whichever be the later, be advanced as follows:—In the case of women of eighteen years of age and over, 5s. per full ordinary week. …”
In terms of section 5 (1) of the Wages (Temporary Regulation) Act 1918 the pursuer's trade union took steps to enforce this award against the employers before the appropriate statutory tribunal, i.e., the Industrial Court, maintaining (1) that it applied to Singer's sewing machine work women, and (2) that the advance granted was an advance not on the statutory minimum or “prescribed” rate of wages but on the actual wages paid.
The award of the Industrial Court, No. 428, dated 4th August 1920, was in the following terms:—“ Terms of Reference.—Question as to whether there is a prescribed or substituted rate applicable to the class of workers concerned, and if so what is the prescribed or substituted rate for that class. 1. The question was referred to the Industrial Court by the Minister of Labour under the provisions of the Wages (Temporary Regulation) Acts 1918 and 1919 as amended by the Industrial Courts Act 1919. 5. The establishment consists, so far as the questions before the Court are concerned, of women and girls employed in the manufacture of sewing machines and the parts thereof, and this decision relates only to women and girls employed in such manufacture. 6. The contention put forward on behalf of the women and girls concerned is that the company are engaged in the engineering trade, and that the prescribed rates are those pertaining to the engineering trade in the Glasgow district, for which rates were substituted by Order 260 issued by the Minister of Labour under section 2 (3) of the Wages (Temporary Regulation) Act 1918. On behalf of the company it was submitted that the prescribed rates applicable to women and girls employed by them in the manufacture of sewing machines were not those applicable to the engineering trade generally, and were not those for which rates were substituted by the said Order 260. 7. The prescribed rate in the Glasgow district for women and girls employed in engineering shops on work which prior to the war was not recognised as men's work, was:— Time Workers.—Women eighteen years and over, 5
d. per hour plus 11s. per full ordinary week.… Piece Workers.—Piece-work prices to enable every woman or girl of ordinary ability in the establishment concerned to earn at least 25 per cent. over her time rate, plus 11s. per full ordinary week for women eighteen years and over. … 8. The establishment of the company at Clydebank is an engineering shop within Award dated 25th January 1919, No. 174 of the interim Court of Arbitration as extended by Order dated 26th February 1919, made by the Minister of Labour under section 2 (3) of the Wages (Temporary Regulation) Act 1918—Statutory Rules and Orders 1919, No. 260, and the women and girls concerned are employed in such engineering shop. 9. The women and girls concerned are employed in the company's establishment on work of a class which 1 2 Page: 372↓
prior to the war was not recognised as men's work in the Glasgow district. 10. The Court find that there are prescribed rates applicable to the women and girls concerned, and are as follows:— Time Workers.—Women eighteen years of age and over, 5 d. an hour plus 11s. a full ordinary week.… Piece Workers.—Such piece prices as will enable every woman or girl of ordinary ability to earn at least 25 per cent. over her time rate as set out above, plus 11s. a full ordinary week in the case of women eighteen years of age and over, and 5s. 6d. in the case of girls under eighteen years of age. 11. The Court further find that for such prescribed rates, rates were substituted by Statutory Rules and Orders 1919, No. 260, dated 26th February 1919, 5s. a full ordinary week in the case of the women concerned eighteen years of age and over … in excess of such prescribed rates. 12. The Court further find that there is no prescribed or substituted rate for women or girls on probation in the company's establishment.” 1 2 Statutory Rules and Orders 1919, No. 260, dated 26th February 1919, referred to in section 11 of the above award and made by the Minister of Labour under section 2 (3) of the Wages (Temporary Regulation) Act 1918, provided:—“Whereas sub-section (3) of section 2 of the Wages (Temporary Regulation) Act 1918 provides as follows:—Where an award determining or varying a rate has been so made by the Interim Court of Arbitration, or an agreement or settlement for such purpose has been arrived at, the Minister of Labour may, on the advice of the Interim Court of Arbitration, by order direct that the determination or variation effected by the award, agreement, or settlement shall be binding on all workmen to whom the prescribed rate in question is applicable and the employers of those workmen: And whereas on the 25th January 1919 the Interim Court of Arbitration made the award set out in the schedule hereto [the award No. 174 printed above], and such award determined or varied the rate applicable to the workmen to whom the award relates: Now therefore on the advice of the Interim Court of Arbitration the Minister of Labour, in pursuance of the powers vested in him by the said sub-section and of all other powers enabling him in this behalf, hereby orders and directs that the determination or variation effected by the said award shall be binding on all workmen to whom the prescribed rate in question is applicable and the employers of those workmen.”
On 30th September 1920, the period which the Industrial Courts Act 1919 fixed as the limit until which the Wages (Temporary Regulation) Act 1918 should operate subject to the proviso in the schedule of the former Act, expired.
The summons in the pursuer's action was dated 26th May 1921.
The action having been transferred to the ordinary roll, a condescendence and answers were lodged.
The parties averred, inter alia—“(Cond. 1) The pursuer was in the employment of defenders from 1917 till 11th February 1921. She was employed in department No. 43 of defenders' works at Kilbowie, Clydebank, as an assembler of parts of sewing machines manufactured by defenders. Pursuer was a piece worker till 10th July 1920, and thereafter was a time worker.… (Cond. 7) It is averred that the effect of Award No. 174, Order No. 260, and Award No. 428 was to give certain workers, including pursuer, an advance of 5s. per week upon the actual sum of remuneration otherwise payable to each worker week by week as at 26th February 1919 and thereafter.… ( Ans. 6 and 7) Award No. 428 of the Industrial Court, dated 4th August 1920, is referred to for its terms, beyond which no admission is made. Explained that the said award found that certain prescribed rates of wages were payable under the provisions of the Wages (Temporary Regulation) Acts 1918 and 1919, as amended by the Industrial Courts Act 1919, in respect of certain women and girls employed in the defenders' establishment, and that for such prescribed rates (the amounts of which were declared by the said award) a certain other rate involving an increase of 5s. a full ordinary week in the case of women of 18 years of age and over was substituted by the foresaid Order No. 260, dated 26th February 1919. Order No. 428 did not have the effect of entitling any worker to claim payment of an addition of 5s. to her weekly wage, but did have the effect of setting up for certain workers a substituted rate of wages (payment of which was enforceable under the terms of the Wages (Temporary Regulation) Act) in place of the prescribed rate which was found by the a ward to have been applicable prior to 26th February 1919. The women affected by the said award included women of 18 years and over engaged in the employment in which the pursuer was engaged. The Munitions of War Act, Wages (Temporary Regulation) Acts, and Industrial Courts Act contained provisions for enforcing payment under the Orders of the Tribunals set up by the said Acts, of wages at prescribed or substituted rates in cases where the wages actually paid were less than the amounts payable in terms of the prescribed or substituted rates. Explained further that the advance of 5s. provided for by Order No. 260 was payable only in respect of a full working week, and that a worker working less than a full working week was entitled only to a proportionate part of the weekly wage payable in accordance with the substituted rate.… (Cond. 8) The pursuer is a workman to whom the said awards and order apply. During the time she was in defenders' employment she was over 18 years of age. She was paid the prescribed rate of wages [viz., the rate of earnings which she earned at 11th November 1918 and which subsisted until 26th February 1919], but she was not paid the advance of 5s. per week under the said awards and order. Defenders' explanation in answer is denied. Explained that while pursuer was a piece worker the piece-work prices or wages paid to her were fixed on the basis of what a woman of ordinary ability could
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earn at the prescribed rates referred to.…( Ans. 8) Admitted that while the said awards and order were operative the pursuer was a worker to whom they applied, and that during the time she was in the defenders' employment she was over 18 years of age. Quoad ultra denied. Explained that over the whole period to which the present claim relates the rate of wages paid to the pursuer by the defenders exceeded the substituted prescribed rate found due under Order No. 428.” The pursuer pleaded, inter alia—“1. The pursuer being a workman to whom the awards and Order founded on apply, and being entitled to the payment of 5s. per week thereunder applicable to her, decree should be granted as craved with expenses. 3. The defences are irrelevant.
The defenders pleaded, inter alia—“1. The Court having no jurisdiction, the action should be dismissed. 2. The pursuer having no title to sue, the action should be dismissed. 3. The action being incompetent in respect that the claim to which it relates was committed to the determination of the Munitions Tribunals, decree of dismissal should be pronounced. 4. The pursuer's averments being irrelevant, the action should be dismissed.”
On 18th November 1921 the Sheriff-Substitute ( Menzies) repelled the third plea-in-law for the pursuer, and the first, second, third, and fourth pleas-in-law for the defenders and allowed a partial proof.
The defenders having appealed, the Sheriff ( Macphail, K.C.) on 27th January 1922 refused the appeal and allowed a proof at large.
After a proof the Sheriff-Substitute on 4th May 1922 pronounced decree against the defenders for £15, 18s. 5d.
The defenders appealed to the Sheriff, who on 26th June 1922 refused the appeal.
The defenders having obtained leave appealed to the First Division of the Court of Session, and argued—The jurisdiction of the Court with regard to the claim in question was excluded. The Legislature, which created the right to a certain wage, committed the enforcement of that right to the particular tribunal it had set up. Where a statute set up rights and prescribed special remedies, such as a statutory tribunal, against their infraction, the presumption was that it thereby excluded the jurisdiction of the ordinary civil courts— Doe v. Bridges, 1831, 1 B. & A. 847, per Lord Tenterden, C.-J., at p. 859; Wolverhampton New Water-works Company v. Hawkesford, 1859, 6 C.B. (N.S.) 336, per Willis, J., at p. 356; Pasmore v. Oswaldtwistle Urban Council, [1898] AC 387, per Lord Halsbury, L.C., at p. 394; Hulme v. Ferranti Limited, [1918] 2 K.B. 426; Lyall v. Carnegy, 1900, 2 F. 423, 37 S.L.R. 322. In the present case the Munitions Tribunal had sole jurisdiction during the period of its existence, and on its disappearance along with the statute which had set it up there was no tribunal in existence which could competently deal with the pursuer's claim. The Corn Production Act 1917 (7 and 8 Geo. V, cap. 46), sec. 4 (2), provided no analogy to the present case, it being there expressly laid down that the penalties therein mentioned should not deprive the workers of their civil law remedies. As the Wages (Temporary Regulation) Act 1918 (8 and 9 Geo. V, cap. 61) and the Industrial Courts Act 1919 (9 and 10 Geo. V, cap. 69) omitted these provisions, it was apparent that concurrent jurisdiction of the ordinary courts was not contemplated— cp. Waghorn v. Collison, 1922, 38 T.L.R. 352, per Rowlatt, J.; Bentley v. M. S. &L. Railway Company, (1891) 3 Ch 222; and Rex v. Ellis, (1921) W.N. 141. Neither was the pursuer's case well founded on its merits. She had admittedly all along received wages in excess of the prescribed rate applicable to her, including the last advance of 5s. That advance was not to be added to the actual wages received by her, but fell to be added to the minimum or prescribed rate. The pursuer being already in receipt of a wage in excess of the latter was therefore not affected by that advance. Counsel referred to the Wages (Temporary Regulation) Act 1918 (8 and 9 Geo. V, cap. 61), sec. 4 (1) ( e), as extended by the Wages (Temporary Regulation) Extension Act 1919 (9 and 10 Geo. V, cap. 18); Munitions of War (Amendment) Act 1916 (5 and 6 Geo. V, cap. 99), sec. 6; and the Munitions of War Act 1917 (7 and 8 Geo. V, cap. 45), sec. 4.
Argued for the pursuer—The Wages (Temporary Regulation) Act 1918, sec. 1, together with the Industrial Courts Act 1919, sec. 6, and schedule to that Act, plainly implied that the ordinary courts had jurisdiction in regard to the present question. There was no limitation or restriction attached to the enforceability of the advance in question. The cases which the defenders referred to in support of their contention that the jurisdiction of the ordinary civil courts was excluded were inapplicable— Vestry of St Pancras v. Batterbury, 1855, 2 C.B. (N.S.) 477. Although it might be conceded that the statutory tribunal must in the first instance be appealed to for a remedy, that did not mean that the jurisdiction of the ordinary courts was thereby excluded— Dante v. Assessor for Ayr, 1922 S.C. 109, 59 S.L.R. 101. The jurisdiction of the ordinary courts was only excluded by express legislation— Shepherd v. Hills, 1855, 11 Ex. 55, per Parke, B., at p. 67; Booth v. Trail, (1883) 12 QBD 8, per Lord Coleridge, C.-J., at p. 10; Batt v. Price, (1876) 1 Q.B.D. 264, per Blackburn, J., at p. 268, and Lush, J., at p. 269. The fixing of the rates was the only function of the tribunal in question, and it was quite competent for the pursuer to seek in the ordinary courts to recover wages thus fixed even after the statute setting up that tribunal was no longer in existence—Interpretation Act 1889 (51 and 52 Vict. cap. 63), sec. 38 (2) ( c); Maxwell on Statutes (6th ed.), pp. 731 and 732; Steavenson v. Oliver, (1841) 8 M. & W. 234, per Lord Abinger, C.B., at p. 240; Bentley v. M. S. & L. Railway Company ( cit.); Groves v. Wimboutne, (1898) 2 QB 402; Ross v. Rugge-Price, (1876) 1 Ex. D. 269. Apart from the question of jurisdiction, however, the advance of 5s, as set forth in Order No. 174 fell to be added to the actual
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earnings of the pursuer and not to the prescribed rate of wages—Munitions of War Act 1915 (5 and 6 Geo. V, cap. 54), Part II, sec. 4 (2); Munitions of War (Amendment) Act 1916 (5 and 6 Geo. V, cap. 99), sec. 6; Munitions of War Act 1917 (7 and 8 Geo. V, cap. 45), sec. 4; S. R. & O., No. 546 and No. 1073; Award No. 174; S. R. & O., No. 260. At advising—
I shall first explain what the question is. When the armistice of 11th November 1918 brought the termination of the Great War into view, it was obvious that a repetition of the industrial upheaval which the war had brought about in the adaptation of industry to war production had to be faced during the period of return to peace conditions. It was further obvious that during that period there was considerable risk of disturbance of the conditions of employment and particularly of the rate of wages. Accordingly the Wages (Temporary Regulation) Act of 1918 was passed. Its object (as may be gathered from the full title of the Act) was to protect industry from strikes and lock-outs by temporarily prescribing minimum rates of wages. For this purpose it was enacted by section 1 that for a period of six months, subsequently extended, it should be an offence for any person who employed a workman to pay him wages at a rate less than a minimum which the Act calls “the prescribed rate” applicable to workmen belonging to the same class, or less than a minimum rate “substituted” therefor by a statutory court or by agreement approved by the Minister of Labour. Section 4 of the Act defined the prescribed rates. One effect of this legislation was to read into the contract of employment of all workmen affected by the Act a proviso that the rate at which their wages were paid should not be less than the minimum rate “prescribed” or “substituted.” The pursuer's case is that the wages paid to her were made up on a rate less by 5s. per full ordinary week than the prescribed or substituted rate applicable to workwomen of her class. The defenders' answer on the merits is that she was actually paid wages at a rate exceeding the prescribed or substituted rate, and that accordingly they are due her nothing.
But in limine the defenders plead “no jurisdiction.” This plea is founded on two things—(1) On the fact that the Act created a special right or privilege in favour of the workers affected by it, and (by section 5 (1)) set up a special tribunal (viz., a munition tribunal of the second class) with exclusive jurisdiction in proceedings for offences under the Act; and (2) that that special tribunal was given power to make an order on an employer against whom a prosecution was brought, to pay to his workmen any sum proved to be due to them as the result of calculating their wages on the prescribed or substituted rate, as such rate might be ascertained by the tribunal in the course of the proceedings. The argument was that this special tribunal alone had jurisdiction to enforce “prescribed” or “substituted” rates, and that the whole machinery for ascertaining such rates, which the special tribunal had the power to operate, was brought to an abrupt end on the day on which the pursuer's claim ends, namely 30th September 1920, by the Industrial Courts Act 1919—eight months before the institution of the present action. It is, in my opinion, a mistake to regard the Act as constituting in favour of the workman a new and independent right to which a special statutory remedy was appropriated. Yet this is the first condition of success for the plea of “no jurisdiction.” The workman's right to his wages remained a common law right notwithstanding that a statutory minimum rate of wage had to be read into the contract of employment. It is doubtless true that if such an action as the present had been raised and carried to a conclusion before 30th September 1920, and if any question about the prescribed or substituted rate had arisen in it, the civil court before which it depended would not have been competent to usurp the functions of the Ministry of Labour or of the Court of Arbitration under section 2 (2) of the Act of 1918, and a sist of the process to enable the parties to have the prescribed or substituted rate ascertained might have been inevitable. But this is very different from saying that the ordinary civil court is deprived of jurisdiction to enforce the contract of employment, including the payment of wages due. Difficulties of a much more formidable character no doubt attach to the present action, for in it there is a question as to what is the prescribed or substituted rate, and the only machinery by which that rate can be ascertained had been swept out of existence before the action was raised. I do not imagine for one moment that the civil court is any more competent to arrogate to itself the highly technical function of fixing a prescribed or substituted rate—now that the Ministry's special statutory powers in that regard are abolished—than it was before. But if it should be the case that before 30th September 1920 the prescribed or substituted rate applicable to the wages of workwomen of the same class as the pursuer had been competently ascertained under the statutory procedure, I for my part see no difficulty in the civil court applying that rate in an action raised after 30th September 1920 with regard to wages payable prior to that date. If, on the other hand, no such prescribed or substituted rate had been ascertained, then I do not see what foundation the pursuer could make for her
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The present action is the sequel to proceedings instituted under the proviso to sub-section (1) of section 5 of the Wages (Temporary Regulation) Act before the local Munitions Tribunal for Glasgow (being a Munitions Tribunal of the second class) by the pursuer's trade union. These proceedings were instituted’ during the period of temporary wages regulation. Their object was the same—in the interest of Singer's sewing-machine workwomen generally as a class—as that of the present action in the interest of the pursuer individually. In those proceedings the trade union rested their case on the contention that the Award No. 174 of the Court of Arbitration, dated 25th January 1919, applied to Singer's sewing-machine workwomen, and entitled them to the war advance of 5s. per week granted by said award in addition to the amounts they were then receiving as wages. This 5s. is the 5s. sued for in the present action. The award in question applied to workwomen in engineering shops, boiler shops, and foundries. Singer's answer was that their Sewing Machine Factory fell under none of these descriptions. On 5th April 1920 the Judge of Appeal, before whom the proceedings in the case had come, remitted the case (under section 2 (2) of the Act) for a report by the Minister of Labour as to whether there was any “prescribed” or “substituted” rate applicable to the class concerned—being that to which the pursuer belongs—and if so what was the prescribed or substituted rate for that class. The terms of the interlocutor making this remit are perfectly unambiguous, and were none other, in my opinion, than was necessary in order to determine the question presented in the case. The result of this remit was the award of the Industrial Court of 4th August 1920, No. 428. In terms of that award it was reported (first) that Singer's Sewing Machine Factory was an engineering shop and therefore within the Award No. 174 above mentioned, as extended by the Order of the Minister of Labour No. 260 of 26th February 1919; (second) that the prescribed rates applicable to workwomen of the pursuer's class were 5
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In my opinion the interlocutors appealed against, dealing with the merits, should be recalled and the defenders assoilzied.
As regards the merits of the pursuer's claim, the matter might, I think, have been properly disposed of by sustaining the fourth plea-in-law stated for the defenders and by dismissing the action as irrelevant. Seeing, however, that a proof has been led, there must be findings in fact, and the defenders are in my opinion entitled to absolvitor. The pursuer's case is that the effect of the statutory orders and awards “was to give certain workers, including the pursuer, an advance of 5s. per week upon the actual sum of remuneration otherwise payable to each worker week by week as at 26th February 1919 and thereafter.”—(Cond. 7 as amended). Now the only statutory
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As regards the plea of no jurisdiction, I agree that it is not well founded, for the reasons your Lordships have given. As regards the merits, the Award No. 428 of the Industrial Court was pronounced in response to a reference made to that Court by the Local Munitions Tribunal in course of proceedings under a complaint by the workers' union against the Singer Manufacturing Company, alleging a contravention by that company of section 1 of the Wages (Temporary Regulation) Act 1918 in respect of their failure to pay to women and girl workers, including the pursuer, the prescribed rates of wages. The terms of reference were—“Question as to whether there is a prescribed or substituted rate applicable to the class of workers concerned, and if so, what is the prescribed or substituted rate for that class.” By the award the Industrial Court found, under the first part of the reference, that the Singer establishment was an engineering shop within the meaning of the Award No. 174 of the Interim Court of Arbitration, extended by Order No. 260, made by the Minister of Labour, and that there were prescribed rates applicable to it as such. Under the second part of the reference the Industrial Court found by the award that there were certain prescribed rates therein stated, and further that Award No 174 had established substituted rates amounting to the stated prescribed rates plus 5s. a full ordinary week in the case of the women concerned of eighteen years of age and over, and 2s. 6d. a full ordinary week in the case of the girls concerned under eighteen years. The additional 5s. per full ordinary week above mentioned is the subject-matter of the pursuer's present claim.
Now, without going into detail as to the prescribed rates applicable to the class of workers to which the pursuer belonged stated in Award No. 428, it is sufficient to say that if these rates be taken and the 5s. per week added, the substituted rate applicable on that footing to the pursuer—that is to say, the statutory mimimum rate which the defenders were bound to pay her—amounted to less than the remuneration which she de facto received, so that there was no contravention of the Act by the defenders.
Accordingly the efforts of the pursuer's counsel were directed to getting behind Award No. 428 and then going to Award No. 174, which they said had established minimum rates different from and higher than the prescribed rates set forth in Award No. 428 as those to which the 5s. per week fell to be added. The first way in which they endeavoured to get behind Award No. 428 was by saying that that document did not in its terms profess to make an authoritative pronouncement of its own as to what the prescribed rates were, but merely referred the parties to Award No. 174 as applicable to the case. I can only say that I am unable to read Award No. 428 in this way. The defenders' counsel, alternatively, endeavoured to get behind Award No. 428 by saying that the reference to the Industrial Court on which it proceeded was quoad the second part of it incompetent, and the award, so far, invalid, in respect that the Local Munitions Tribunal had no power to make any reference which involved the Industrial Court in construing any previous order or award, such as Award No. 174. It rather seems to me that on this footing the first part of the reference—and therefore the whole of the Award No. 428—would be invalid, inasmuch as it involved the Industrial Court in construing the words “engineering shops” in Award No. 174. I am not at all convinced that there was any incompetency attaching to the reference or consequent invalidity in the award. But the conclusive answer to the pursuer's contention
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I do not think that there is any discrepancy between Award No. 428 and Award No. 174. The meaning and effects ascribed by the pursuer's counsel to the latter award seemed in various respects to be better fitted to promote the pursuer's claim than they were to square with and carry out the scheme of the Act of 1918. But for the reasons I have stated, I think it is to Award No. 428 that we must go to find out what the pursuer's statutory claim amounted to, and as on that footing she received wages in excess of the statutory minimum, I agree with your Lordships in the conclusion that the defenders are entitled to absolvitor.
As regards the other facts of the case there is only one point upon which I shall say a word.
I am not sure whether it is proper that I should here take any cognisance of the fact that I happened to be the Judge in the Munitions Appeal Tribunal. But in view of the fact that in substance the process has been a continuous one since the application was first made to the local tribunal, and in view of the test character of this case, I shall venture to explain the procedure which has been canvassed in this appeal.
In the appeal to the tribunal the respondents in that appeal had two lines of defence. In the first place they maintained that their works were not engineering works and that none of the definitions in regard to prescribed rates applied to them, their business being an isolated one. In the second place, they maintained that esto that their works were engineering works, they were a special branch of engineering with rates of their own. This was a vital point, for the Minister's Order No. 260 does not extend the 5s. increase to all engineering works eo nomine, but only to those workpeople who had the same prescribed rates as the original applicants who got the award of 5s. under Award No. 174. It was essential for the determination of the case to ascertain what was the applicants' prescribed rate, if any.
No doubt, theoretically, the tribunal might have determined the questions whether the works were engineering works, and if so whether they were a distinct branch, and then have made a remit as to prescribed rates. But that could have been satisfactorily done only after a proof. Such procedure, however, would not have been in accordance with the intendment of the Legislature, which contemplated that these practical questions should be determined by the expert advisers of the department who are familiar with trade customs, classification, and nomenclature, and the adjustment of wages questions.
That was the position when the remit was made. The Industrial Court were instructed to determine as to the prescribed rate, but it was quite contemplated that incidentally to such determination they must determine whether Messrs Singer's works were engineering works, and if so whether they were a special branch with rates of their own.
The respondents (as the case is a test one I use the plural) in the present appeal were successful under this reference—at least so they deemed at the time—and the present action was brought to give effect to the award of the Industrial Court. In these circumstances it is somewhat difficult for the respondents now to impugn that award or any part of it.
I understand, however, their case to be this, and I concede that it has a certain plausibility. The points in dispute when the remit was made were whether the present appellants had any prescribed rate for their female workers, and if so, was it a special one for a particular branch of the industry. But the Industrial Court having determined that they had a prescribed rate and that they were not a special branch of the industry with a rate of their own as such, it was a work of supererogation for the tribunal to specify what the amount of the rate was. Dispute upon this question, it is said, had not arisen when the remit was made.
There may be a certain plausibility in this contention, but its value to the respondents depends upon the validity of a supposition which seems absolutely fatal to their case. That supposition is that the general prescribed rate which the Industrial Court accurately specified and applied to them does not really apply to them because they have a special prescribed rate of their own, not as a separate branch of the industry but as a particular shop. But if they have a special prescribed rate of their own they cannot claim the 5s. advance. Sir Robert Horne's Order No. 260 extends that advance only to those “to whom the prescribed rate in question is applicable.” It is not in dispute that this prescribed rate is the general rate for female munitions workers (S.R.O. 1918, No. 546) as the same is accurately specified in the Award No. 428. If the rate specified in Award No. 428 does not apply to the respondents, if a different prescribed rate applies to them, then S.R.O. 1919, No. 260, under which the 5s. advance is claimed, does not apply to them.
Upon the other grounds of judgment I concur with your Lordship in the chair.
I have only to add that in treating the case as one of implied contract the learned Sheriff has gone outside the pleadings in the cause. But apart from this it appears to me that this was a weekly contract renewable weekly. Though the appellants resolutely refused to pay the additional 5s.
Page: 379↓
I agree that on the merits the appeal must be sustained.
The Court pronounced this interlocutor—
“… Sustain the appeal: Recal the interlocutors of the Sheriff and Sheriff-Substitute dated prior to 4th May 1922 in so far as they repel the defenders' fourth plea-in-law: Recal the interlocutors of 4th May 1922 and 26th June 1922: Find in fact (1) that the pursuer was employed by the defenders at their factory in Clydebank from 1917 till 11th February 1921; (2) that she was employed till 3rd July 1920 as a piece worker and thereafter till 7th October 1920 as a time worker; (3) that the Award No. 174, the Order No. 260, and the Award No. 428 all applied to the class of workman to which the pursuer belonged and to the said factory as from 26th February 1919; and (4) that during the whole period covered by the claim the defenders paid to the pursuer wages at rates (or based upon piece prices) in excess of the following rates (or piece prices):— Time Workers.—5
d. an hour plus 11s. a full ordinary week, plus 5s. a full ordinary week. Piece Workers.—Such piece prices as enabled every woman of ordinary ability to earn at least 25 per cent. over the above time rate of 5 1 2 d. per hour, plus 11s. a full ordinary week, plus 5s. a full ordinary week: Find in law that for the period in respect of which the claim is made the defenders have discharged all obligations resting upon them in relation to the pursuer under the Wages (Temporary Regulation) Act 1918 and the said awards and order: Therefore assoilzie the defenders from the conclusions of the summons, and decern.…” 1 2
Counsel for the Pursuer— Mackay, K.C.— Patrick. Agents— Maxwell, Gill, & Pringle, W.S.
Counsel for the Defenders— Macmillan, K.C.— Robertson, K.C.— Strachan. Agents— J. W. & J. Mackenzie, W.S.