R v National Arbitration Tribunal, ex parte Bolton Corporation
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Lord Atkin,Lord Thankerton,Lord Wright,Lord Porter |
| Judgment Date | 08 September 1942 |
| Judgment citation (vLex) | [1942] UKHL J0908-1 |
| Date | 08 September 1942 |
| Court | House of Lords |
[1942] UKHL J0908-1
Lord Chancellor
Lord Atkin
Lord Thankerton
Lord Wright
Lord Porter
House of Lords
After hearing Counsel, as well on Friday the 17th, as on Monday the 20th, Tuesday the 21st and Thursday the 23d, days of July last, upon the Petition and Appeal of the National Association of Local Government Officers, of 27 Abingdon Street, Westminster, in the County of London, 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 23d of July 1941, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order 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 printed Case of the Minister of Labour and National Service (who was by an Order of this House, of the 13th day of February 1942, granted leave to intervene in the said Appeal) and also upon the printed Case of the Mayor, Aldermen and Burgesses of the County Borough of Bolton, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
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 23d day of July 1941, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the judgment of the King's Bench Division of the High Court of Justice, sitting as a Divisional Court, of the 18th day of March 1941, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents, The Mayor, Aldermen and Burgesses of the County Borough of Bolton, do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal 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 King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
This is the appeal of the National Association of Local Government Officers (which is a trade union) from an Order of the Court of Appeal [1941] 2 K.B. 405 (MacKinnon L.J., du Parcq L.J., and Bennett J.) setting aside the decision of the Divisional Court [1941] 1 K.B. 584 (Caldecote L.C.J., and Tucker J., Atkinson J. dissenting) which dismissed the application of the Bolton Corporation for an Order of Prohibition to restrain the National Arbitration Tribunal from adjudicating upon an alleged "trade dispute" between the Appellants and the Respondents relating to the making up of the pay of officers of the Respondents who serve in His Majesty's Forces or in Civil Defence services. The problem raised is a difficult one, as may be inferred from the difference in judicial opinion already expressed in regard to it.
The National Arbitration Tribunal has been constituted by the Minister of Labour and National Service under Article 1 of the Conditions of Employment and National Arbitration Order 1940 (St.R. and O. 1940 No. 1305) "for the purpose of settling trade disputes which cannot otherwise be determined". By Article 2 of the Order, if any trade dispute exists or is apprehended, that dispute, if not otherwise determined, may be reported to the Minister by or on behalf of either party to the dispute. Thereupon, the Minister is to take suitable steps to promote a settlement, and if these steps fail, he is to refer the dispute for settlement to the National Arbitration Tribunal. By Article 4, an employer is not to declare or take part in a lock-out and a worker is not to take part in a strike in connection with any trade dispute, unless the dispute has been reported to the Minister in accordance with the provisions of Article 2 and 21 days have elapsed since the date of the report and the dispute has not during that time been referred by the Minister for settlement in accordance with the provisions of that Article.
The Conditions of Employment and National Arbitration Order is made under Defence Regulation 58 AA, which confers power on the Minister of Labour and National Service to make such an Order "with a view to preventing work being interrupted by trade disputes". It is not suggested that the Regulation and Order are not validly made. In the Regulation the expression "trade dispute" has the same meaning as in the Industrial Courts Act, 1919. By section 8 of the last-named Act "trade dispute" means—
"any dispute or difference between employers and workmen, or between workmen and workmen connected with the employment or non-employment, or the terms of the employment or with the conditions of labour of any person."
And the expression "workman"
"means any person who has entered into or works under a contract with an employer whether the contract be by way of manual labour, clerical work, or otherwise, be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour."
Definitions of "trade dispute" and of "workman" in exactly the same terms are reproduced in Article 7 of the Order itself. This is convenient, though not strictly necessary, for the definition of "trade dispute" in the Order is necessarily governed by its meaning in the Regulation under which it is made, and its meaning in the Regulation, as already stated, is that of the expression in the Act of 1919. Similarly, the meaning of "workman" necessarily remains unaltered, for it is an element in the definition of "trade dispute".
It is worth observing that while the definition of "trade dispute" above quoted is practically the same as in the Trade Disputes Act, 1906, the definition of "workman" is entirely different and much wider than that in the Act of 1906. In that Act the workman had to be "employed in trade or industry". No such limitation appears in the definition of "workman" for present purposes, and the effect is to enlarge correspondingly the conception of "trade dispute" itself.
The circumstances in which the present question arises sufficiently appear from the Reference, dated February 4th, 1941, made by the Minister of Labour and National Service to the National Arbitration Tribunal. That Reference is as follows:—
"Whereas on the 21st August, 1940, a trade dispute existing or apprehended between the National Association of Local Government Officers on the one hand and the Bolton Corporation, Town Hall, Bolton on the other hand, was reported to the Minister of Labour and National Service (hereinafter referred to as 'the Minister') by the National Association of Local Government Officers (being one of the parties to the said dispute), arising out of a claim that it shall be a condition of service of officers in the employment of the Corporation that in the event of their serving in His Majesty's Forces or in Civil Defence they shall have made up to them the difference between their new pay and the remuneration which they would have received if they had remained in the actual service of the Corporation:
Now therefore the Minister in exercise of the powers conferred on him by Article 2 of the Conditions of Employment and National Arbitration Order, 1940, hereby refers the said dispute for settlement to the National Arbitration Tribunal."
The Respondent Corporation contends that this Reference is ultra vires of the Minister to make and is in excess of the jurisdiction of the Tribunal to entertain, for three main reasons.
First, it is argued that a dispute as to conditions of service of officers of a municipal corporation is not a "trade dispute" at all.
Secondly, it is contended that, even if it is, a dispute as to payments to be made by the Corporation to its officers after they have ceased to serve the Corporation, in order to undertake war service, is not a dispute connected with the terms of their employment within the definition of "trade dispute".
Thirdly, it is argued that the Corporation has no power to determine generally in advance whether it will make up the pay of such of its officers as may undertake war service, but must exercise its statutory discretion to decide this, under section 1 of the Local Government Staffs (War Service) Act, 1939, by considering the individual case when the individual officer ceases to serve the Corporation in order to undertake war service. From this last contention, it is sought to draw the conclusion that the Tribunal has no jurisdiction to make an award which would force the Respondents to do what they have no power to do.
Certain other contentions, which find some place in Mr. Justice Bennett's judgment—viz. that there could not be a trade dispute between an employer and a trade union in the absence of proof that individuals serving the employer were themselves disputing with him, and that there could not be a trade dispute in the absence of a threat or suggestion of a strike or lock-out—were not urged by the Respondents before this House and must be regarded as abandoned, but the three main contentions above set out were placed before us with force and ability and need careful examination.
First, as to the meaning of "trade dispute" in this connection. Having regard to its definition for present purposes, and to the wide definition of "workman" which has to be read into it in order to ascertain its ambit, I think that the phrase can cover a dispute as to conditions of service of officers of a municipal...
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