London Passenger Transport Board v Moscrop
| Jurisdiction | UK Non-devolved |
| Judge | Viscount Maugham,Lord Russell of Killowen,Lord Macmillan,Lord Wright,Lord Porter |
| Judgment Date | 15 January 1942 |
| Judgment citation (vLex) | [1942] UKHL J0115-1 |
| Court | House of Lords |
| Date | 15 January 1942 |
[1942] UKHL J0115-1
Viscount Maugham
Lord Russell of Killowen
Lord Macmillan
Lord Wright
Lord Porter
House of Lords
After hearing Counsel, as well on Friday the 7th, as on Monday the 10th and Thursday the 13th, days of November last, upon the Petition and Appeal of the London Passenger Transport Board, of 55 Broadway, in the City of Westminster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 4th of November 1940, except so far as regards the words "except that part thereof which ordered the taxation and payment of costs", might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, except so far as aforesaid, might be reversed, varied, or altered or that the Petitioners might have such other relief in the premises, as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the Petition and Cross Appeal of Archibald John Philp Moscrop residing at 9 Sutherland Avenue, Sunbury-on-Thames, Middlesex, praying, That the matter of the Order set forth in the Schedule thereto, namely, the said Order of His Majesty's Court of Appeal, of the 4th of November 1940, so far as regards the words "except that part thereof which ordered the taxation and payment of costs", might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed case of Archibald John Philp Moscrop, and also upon the printed case of the London Passenger Transport Board, lodged in the said Original and Cross Appeals; and due consideration had this day of what was offered on either side in these Appeals:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 4th day of November 1940, complained of in the said Original and Cross Appeals be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Morton, of the 27th day of May 1940, thereby discharged, be, and the same is hereby, Restored: And it is further ordered, That the said Petition and Cross Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the said Archibald John Philp Moscrop do pay, or cause to be paid, to the said London Passenger Transport Board the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Original and Cross Appeals to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Chancery Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
This Appeal involves the true construction of a somewhat obscure section of the Trade Disputes and Trade Unions Act, 1927 (which I shall call "the Act"). It is Section 6, and it contains provisions as to persons employed by local and other public authorities. The Appellants, who are in the latter category, have been held under a somewhat curious chain of circumstances to have committed a breach of the provisions of Subsection (1) of that Section, and it will be convenient to state its terms so far as relevant at once.
"6.—(1) It shall not be lawful for any local or other public authority to make it a condition of the employment or continuance in employment of any person that he shall or shall not be a member of a trade union, or to impose any condition upon persons employed by the authority whereby employees who are or who are not members of a trade union are liable to be placed in any respect either directly or indirectly under any disability or disadvantage as compared with other employees.
(2) It shall not be lawful for any local or other public authority to make it a condition of any contract made or proposed to be made with the authority, or of the consideration or acceptance of any tender in connection with such a contract, that any person to be employed by any party to the contract shall or shall not be a member of a trade union.
(3) Any condition imposed in contravention of this section shall be void."
There is no dispute as to the facts. The Respondent who is and was at all material times a motor-omnibus driver entered the employment of the London General Omnibus Company Limited on the 12th April, 1928. He joined the Transport and General Workers Union (which I shall call "the Transport Union") shortly after he entered the service of the Omnibus Company and he was still a member thereof until after a strike in 1937 took place. During the years 1928 to 1937 inclusive the Transport Union was the only trade union which was concerned with the particular class of employees to which the Respondent belonged.
One of the terms of employment in force between the Respondent on the one hand and his successive employers on the other hand from the 12th April, 1928, up to April, 1937, was as follows:—
"Appeals in respect of any disciplinary action shall be heard weekly before a properly constituted disciplinary board. Drivers and conductors attending such appeals shall be allowed to appear in plain clothes and to be accompanied by a representative of the Union."
It was not disputed at the hearing that the Respondent and his employers agreed to this term. "The Union" referred to means the Transport Union. The said term was part of an agreement between the Omnibus Company and other companies of the one part and the Transport Union on behalf of the motor omnibus drivers and conductors of the other part dated the 23rd September, 1932.
After the strike in 1937 the terms of the Respondent's employment are to be found in an agreement, being part of the terms of settlement of the strike, dated 15th June, 1937, and made between the Transport Board and the Transport Union. A book called the Brown Book is expressed to be a memorandum setting out the agreed Rates of Pay and the Conditions of Service of the Transport Board's drivers and conductors, and contains in clause 3 of the schedule to the agreement the following provisions:—
Appeals
"Appeals against depot superintendent's decisions shall be heard by the divisional superintendent concerned. Divisional superintendents may also hear charges in the first instance, according to the gravity of the charge.
Appeals against the decisions of the divisional superintendents shall be heard weekly before a properly constituted disciplinary board.
Drivers and Conductors appearing before a divisional superintendent or on appeal may be accompanied by an official of the Union."
The Union referred to in the clause is the Transport Union, and it purported to act on behalf of all the drivers and conductors of motor omnibuses employed in the Central London Area. It is common ground that the privilege of being "accompanied" by an official of the Transport Union was understood to mean the right to speak as an advocate on behalf of the driver or conductor. Further, it is common ground that the Transport Union would not in practice allow an official of theirs to appear for any man who was not a member of that Union or whose contributions were more than six weeks in arrear. It follows that the employees in question were only entitled as of right to assistance in stating their cases before the divisional superintendent or on appeal if they were members of the Transport Union and had paid their contributions up to a recent date, and it appears that the Transport Board have adhered strictly to this rule.
At the date of the agreement of the 15th June, 1937, the Transport Union was the only trade union representing the drivers and conductors concerned, but some of the drivers and conductors did not belong to that or any other trade union. It must therefore be observed that employees who were not members of the Transport Union were in fact placed under a disadvantage as compared with employees who were members of the Transport Union. The Respondent himself was then under no disadvantage; but some time after the date of the said agreement of the 15th June, 1937, he ceased to pay his contributions to the Transport Union and by reason of such cesser he ceased to be a member of the Transport Union in or before the month of December, 1937. In February, 1938, he joined the National Passenger Workers Union (which I shall call "the National Union") which had then recently been formed. These facts did not come to the knowledge of the Appellants until the 18th April, 1939.
In February, 1939, a question arose whether the Respondent had been guilty of some breach of duty. The matter came before the depot superintendent and the Respondent was cautioned. He appealed to the divisional superintendent who affirmed the decision of the depot superintendent and therefrom the Respondent appealed to the disciplinary board. The hearing of this appeal was fixed for the 18th April, 1939, and the Respondent presented himself on that day accompanied by the general secretary of the National Union who was prepared to present the Respondent's case and to represent him before the disciplinary board. The Transport Board refused to allow this gentleman to represent the Respondent before the disciplinary board, and in consequence the Respondent declined to proceed with his Appeal. It is only fair to the Appellants to say that it was stated by Mr. T. E. Thomas, a witness on their behalf at the trial, that the presence of representatives of...
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