Engineering Industry Training Board v Foster Wheeler John Brown Boilers Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD WILBERFORCE,LORD JUSTICE PHILLIMORE |
| Judgment Date | 20 March 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0320-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 March 1970 |
[1970] EWCA Civ J0320-1
In The Supreme Court of Judicature
Court of Appeal
Appeal of Foster Wheeler John Brown Boilers Ltd. from Judgment of the Queen's Bench Divisional Court
The Master of the Rolls (Lord Denning)
Lord Wilberforce and
Lord Justice Phillimore
In the Matter of the Industrial Training Act 1964
In the Master of the Industrial Training Levy (Engineering) Orders 1967 and 1968
In the Matter of the Industrial Training (Engineering Board) Orders 1967 and 1968
In the Master of An Appeal by the Engineering Industry Training Board from a Decision of the Industrial Tribunal (England and Wales)
Mr. R.A. MacCRINDLE, Q.C., and Mr. N.J. INGLIS-JONES (instructed by Messrs. Bristows, Cooke & Carpmael) appeared on behalf of the Appellants.
Mr. NORMAN TAPP, Q.C., and Mr. M. F. GETTLESON (instructed by Mr. I.L. Tibbs) appeared on behalf of the Respondents.
Under the Industrial Training Act of 1964, several Training Boards have been set up. One is for the engineering industry, and another for the construction industry. Each Board imposes a levy on employers in its industry. The amount of the levy varies from industry to industry. For instance, if an employer is engaged on work which falls in the engineering industry, he has to pay a much higher levy than if he is engaged in the construction industry. It is as 2.5 to 1.
Foster Wheeler John Brown Boilers Limited are erecting, or helping to erect, thermal power stations at several places. They put in the steam-generating apparatus. Does this work come within the engineering industry or the construction industry? If it comes in the engineering industry, the levy may be £100,000: but, if in the construction industry, it is only £40,000.
To decide this question I must first describe the nature of the work done by Foster Wheeler. Some other firm erects a big metal framework, 200 feet high and 100 feet wide, to contain the apparatus. Foster Wheeler then come along and put inside this framework a tremendous set of pipes - 200 miles of piping - which constitute the boiler. It is suspended from the top of the framework. They also put in furnaces, chimney, lifts, stairs, and so forth. After they have put all in, the other firm comes back and completes the outer framework and covers it all up with a cladding so that it is all one huge building.
The Industrial Tribunal, presided over by Sir John Claydon, put the steam-generating apparatus into the construction industry. The Divisional Court put it into the engineering industry. Now there is an appeal to this Court.
Everything depends, of course, on the interpretation of the Statutory Instruments which define these two industries. They are the Industrial Training (Engineering Board) Order, 1968; and the Industrial Training (Construction Board) Order 1967.One thing is quite clear: this steam-generating apparatus must be put into one industry or the other. It cannot be put into both. There can be no overlapping. No employer is bound to pay two levies.
I will not read out the relevant paragraphs of the Orders and the Schedules to them. That would be too tedious. Broadly speaking, the engineering industry is concerned with making metal articles, and metal framework: whereas the construction industry is concerned with erecting buildings and structures. But that broad distinction does not help much in this case. He have to get down to the Schedules. They put "building work and civil engineering work" into the construction industry and not into the engineering industry. In the Engineering Order there is a definition of "civil engineering work" which says that: "Civil engineering work means the construction or demolition of a railway line, siding or monorail, the construction, structural alteration, repair or demolition of any aerodromes………road, chimney, furnace…………nuclear or thermal power station…………but does not include any activities to which paragraph 1 (h) of this Schedule applies, or the installation, testing, inspection or repair of machinery or plant, not being contractors' plant".
At first sight this steam-generating apparatus would seem to fall within the express words "thermal power station". But the Divisional Court held that the steam-generating apparatus was "installation of plant" and thus within the exception at the end of the definition. It was, therefore, not "civil engineering work". I cannot agree with this view. I am prepared to accept that the steam-generating apparatus may properly be described as "plant", but I do not think the work done by Foster Wheeler is the "installation" of plant. The word "installation" in this context means the bringing of an entire piece of plant on to a site and putting into position onthe site. It does not mean the putting together of parts, as is done here, piece by piece, pipe by pipe, bolt by bolt, weld by weld, until it gradually becomes one whole.
If the words "installation of plant" were given the wide meaning which the Divisional Court give to it, the result would be to take nearly the whole of this thermal power station out of "civil engineering work". Taking their meaning of "instal" it would follow that the work done on the turbines, the furnace, the chimney, were all "installing of plant". We went through it all this morning. It would mean that 90% of this thermal power station was excepted from civil engineering work as being "installation of plant". That cannot be right.
The plain fact here is that a "thermal power station" is expressly included in the definition of "civil engineering work". That express inclusion must carry with it all the essential parts of a thermal power station, including the steam-generating apparatus. It cannot be excluded by reason of the general words "installation of plant". Special provisions always take priority over general provisions.
I hold, therefore, that the work of erecting the steam-generating apparatus comes within "civil engineering work" and is within the construction industry.
That is enough to decide the case, but, as some other points were canvassed, I would say that I do not regard this apparatus as an "article"; nor is the erection of it the installation or assembly of an "article". It is, I think, the erection of a structure". But it is a structure which "forms part of a building". It is, therefore, not within subparagraph 1(h).
I hold, therefore, that the work is not within the engineering industry, but within the construction industry: and need only pay the levy appropriate to the construction industry.
I would allow the appeal, accordingly, and restore the Order of the Tribunal.
This appeal depends on the construction of the Industrial Training (Engineering Board) Order 1968, which is Statutory Instrument No. 1333. This Instrument, like others in the same field, raises questions of construction of a special and difficult character. It endeavours to bring within general expressions and definitions, which are rather fluid and loose in texture, types of industry and industrial activity of a varied and complex character which can seldom be accurately brought within any of them. In this respect it rather resembles legislation concerning the Selective Employment Tax. The great variety of combinations which are dealt with can be seen by a glance at the Order itself and its various paragraphs and the tables, and I need not expand upon them. So when one is trying to interpret an Order like this the processes of strict...
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