National Coal Board v Galley

LORD JUSTICE JENKINS: The judgment about to be read by Lord Justice Pearce is the judgment of the court in this case.

In this case the defendant appeals from a judgment of Mr. Justice Finnemore at Nottingham Assizes awarding to the plaintiffs £100 damages for breach of contract and costs on p the High Court scale. The defendant contends that he is not liable in damages and that, even if he be liable, the damages should only be nominal. Although not strictly a test case, this is the first of 85 actions brought by the plaintiffs against other defendants raising similar issues. Probably the fate of those actions will be decided by this.

The defendant is employed by the plaintiffs as a deputy in their colliery at Oxoroft in Derbyshire. The case arises out of the defendant's deliberate refusal to attend for work at the plaintiffs' mine on Saturday voluntary shifts, in breach, it is alleged, of his terms of employment. All the other deputies at the mine refused similarly and simultaneously. Deputies, like overmen,(who are immediately above them in status)t and shot firers (who are immediately below them), have been described as the noncommissioned officers of the industry. The deputy is in charge of the miners and has to see that various safety precautions are observed. He is first in and last out in a shift. As a result, his shift is longer than the ordinary miner's, and even when the miners are only working a five-day week the deputy has certain Satefy duties at the week-end.

The defendant's trade union is the National Association Of Colliery Overmen, Deputies and Shot firers (Midlands Area). This body is in turn a member of the National Association of Colliery Overmen and Deputies and Shot firers, an unregistered trade union that is composed of area associations and has no p individual members; it is known popularly and referred to in this case as "Nacods". It was Nacods who discussed and arranged with the plaintiffs any alteration of the terms of the deputies' employment.

In April, 1947, following nationalisation, a five-day week was introduced for miners by agreement between the plaintiffs and the National Union of Mineworkers. In May, 1947, a similar agreement in respect of deputies was made between the plaintiffs and Nacods. This agreement provided that local arrangements should be made to provide the working of additional shifts where it was necessary under statutory provisions and to ensure the safety and efficient working of the pit, and that the deputies should work reasonable overtime if required.

In October, 1947; shortage of coal produced a very serious crisis. In that month the National Union of Mint workers made an agreement with the plaintiffs that the five-day week agreement should remain in force but that a of miners would voluntarily do as many Saturday shifts as possible for the next six months. Provisions were made for overtime pay. Thereafter voluntary Saturday shifts were worked at most other mines, and at this mine in particular.

In April, 1948, the agreement for voluntary shifts on Saturdays was extended for a further year. Thereafter it was extended year by year up to April, 1952. The Saturday working was a serious attempt by miners and management to increase the output of coal. If necessitated each year an Order-in-Council under section 4 of the Coal mines Regulations Act, 1908, based on the existence of a great emergency or a grave economic disturbance due to the demand for coal exceeding the supply.

On the let March, 1949, the defendant entered into a written contract of service with the plaintiffs. That contract is not a felicitous document and its terms are far from clear. The plaintiffs thereby agreed to engage the defendant and the defendant agreed to serve the plaintiffs on terms and conditions set forth in the contract rules for the time being in force at the Board's collieries. No-one appears to know what these rules are.

By clause 4 the defendant declares that he "will serve the Board as regularly as the state of trade and interruptions from accident or repairs to its mines and works or the non-arrival of wagons or general holidays will from time to time permit and that my wages shall be regulated by such national agreement and the county wages agreement for the time being in force and that this contract of service shall be subject to those agreements and to any other agreements relating to or in connection with or subsidiary to the wages agreement and to statutory provisions for the time being in force affecting the same."

It is contended by the plaintiffs that this contract inco-porates any alteration in deputies' terms of employment that might be agreed between the plaintiffs and Nacods. From that time onward the defendant as a deputy was working at week-ends, doing on an average approximately six shifts a week. But the shifts which he did on Saturday were voluntary and he received overtime pay in respect of them.

In April, 1952, when the national yearly agreement for the Saturday voluntary shift ran out, it was not renewed until the 22nd August, 1952. From that date up to the present it has continued in force with yearly renewals not merely in respect of winter months but in respect of summer months (May to August inclusive) as well. Although many collieries had worked Saturday voluntary shifts in the summer the Ox croft Colliery had never done so before August, 1952.

Some time prior to April, 1952, Nacods had put in a wage claim in respect of deputies. During the summer of 1952, while the Saturday voluntary shift was in abeyance, there were various discussions between the plaintiffs and Nacods about deputies' pay and duties. The plaintiffs held the view that deputies (and over men and shot firers) were men of responsibility in the working of the mine who should hold a position more analogous to the management than to the miners. They suggested to Nacods that deputies should receive an upstanding weekly wage to include overtime. Minutes and transcripts of these negotiations were produced and put to the witnesses in evidence. It is clear that Nacods were afraid that the fixing of an upstanding weekly wage inclusive of overtime might result in men being put upon and being asked to work in excess of six shifts a week. (By "six shifts a week" we are referring to the average produced by an alternation of five shifts in one week and seven in another). They were trying to ensure that this would not occur. The plaintiffs were in effect saying that the average working week was now about six shifts a week but that deputies cannot have a maximum of six shifts a week since emergencies in the pits may on occasion demand more, but that it was not the intention that the men would work more than six shifts. No-one was saying that six shifts a week was unreasonable or excessive.

In order to avoid the abuse of excessive unpaid overtime the plaintiffs offered to keep records showing the overtime worked, and it was agreed that if the new agreement resulted in unreasonable impositions on the men the matter should be discussed. No doubt both sides were then thinking that Saturday voluntary shifts would probably become unnecessary in a year or two, and it is said that no-one at Ox croft was anticipating summer Saturday voluntary shifts. Certainly no-one was anticipating that Saturday voluntary shifts would still be worked by 1957.

As a result of these discussions an agreement "on revised terms and conditions of employment of deputies" between Nacods and the plaintiffs was reached on 29th July, 1952. This agreement was interspersed with notes to explain what the various clauses meant. It is clear that the defendant was at all material times aware of it, though he personally was not in favour of the change to an upstanding wage and had voted against it.

The clauses relevant to this dispute are as follows: "Clause 5. Deputies grade I and II shall be paid an upstanding weekly wage for each week worked without any additional payments in respect of overtime or week-end work. Clause 6. The amount of such weekly wage in respect of deputies grade I shall not be less than £14 per week, nor more than £16 10s. per week. Clause 12. Except where prevented by sickness, accident or industrial disease to which the provisions of part of this schedule apply, deputies shall work such days or part days in each week as may reasonably be required by the management in order to promote the safety and efficient working of the pit and to comply with statutory requirements. Clause 13. The management at each pit shall cause to be kept a record showing in respect of each week and each deputy grade I or grade II the number of days and part days worked by him in that week, and will so organize the work during the week as to ensure that, as far as is practicable, time worked is fairly distributed between deputies in the same grade in each pit. If, in any case, it is alleged that the amount of time worked by any deputy or deputies is unreasonable or is not reasonably distributed between deputies in the same grade in the pit, such matter shall be settled by discussion in such manner as the Board and the Association in the devision shall agree.

"Note (i). The objects of the revised arrangements are to improve the status...