Later decisions that cite London Passenger Transport Board v Moscrop
Lorp WricHt. My Lords, I have had the advantage of reading in print the opinions which have been delivered by my noble and learned friends, Lord Maugham and Lord Russell of Killowen. I agree with them that the appeal should be allowed and that the action fails. The main ground on which I reach this conclusion is that the facts show no condition of employment imposed on the 349 H. L. (E.) 1942 LONDON PASSENGER TRANSPORT BoarRD Uv. Moscrop. Lord Macmillan. 350 H. L. (E.) 1942 case LONDON PASSENGER 'TRANSPORT BoarD Vv. Moscrop. Lord Wright. HOUSE OF LORDS [1942] respondent within the meaning of s. 6, sub-s. 1, of the Trade Disputes and Trade Unions Act, 1927. What is relied on as amounting to such a condition is said to be found in the following words contained in the agreement dated June 15, 1937, between the appellants and the Transport and General Workers' Union (conveniently called the '' Transport Union"') of which the respondent was then a member. The words are : "Drivers and conductors appearing before a divisional super- "intendent or on appeal may be accompanied by an official "of the union" (i.e., the Transport Union). This clearly means that the appellants will grant to every employee a right to be represented by the union official. It is agreed that the appellants were bound by the clause vis-a-vis each employee, including the respondent. It cannot be contested that, apart from these words, the appellants had a right to allow or to refuse at their discretion to any employee representation on appeals. This discretion is pro tanto taken away by the clause to the extent of its express words, which limit the appellant's discretion and give a privilege to the employees which otherwise they would not have had, but I am unable to regard the grant of that privilege as a condition imposed on the parties employed within s. 6, sub-s. 1, of the Act. The privilege is given to all the employees without exception. The words used are simple and straight- forward. There is no principle of construction known to me which would here justify extending or limiting their plain meaning. The difficulty which, it is said, has arisen does not spring from any construction of the words themselves but because of the circumstances external to the contract, which is that the Transport Union will not (unless they change their rules or practice, as they are free to do) allow its officials to accompany or represent on appeals employees who are not members of the union or of members who are in arrear in payment of their subscriptions. It is only that fact which prevents such employees from availing themselves of the particular privilege granted by the appellants. There is nothing in the contract itself which disables any employee from enjoying the privilege. Indeed, at the date of the contract the respondent was a member of the union. The Court of Appeal sought to avoid this difficulty by turning the clause round and making it imply "upon its true construction "that no employee unless he be a member of the Transport "Union shall be entitled to be represented on the hearing of A.C. AND PRIVY COUNCIL. "an appeal by any person."' With the greatest respect to the Court of Appeal, it is, in my opinion, impossible to extract that meaning from the clause. All that the clause says is that an employee (whether unionist or non-unionist) is to be allowed (so far as the appellants are concerned) to be accom- panied by a representative of the Transport Union. It has nothing to say as to representation by any other person. As to that the appellants' general discretion remains unaffected. I read the words "condition imposed, etc.,'' in an untechnical sense aS meaning a term of the employment, but whatever meaning they may have in other connections I cannot regard them as including what is simply the grant of a privilege of which it is within the employees' option to avail themselves or not, as they like or are able. In the result, the respondent fails to bring himself within the first words of the relevant limb of the section. It is, therefore, unnecessary to consider the precise terms of any of the differing declaratory judgments which have been claimed or propounded in the proceedings, whether before Morton J., or the Court of Appeal or this House. I must, however, associate myself with what has fallen from Lord Maugham and Lord Russell of Killowen by way of condemning the looseness of practice which allows substantial changes to be made in the relief claimed or cause of action without precise and formal amendment of the pleading. It is unnecessary, in my opinion, in this appeal to decide whether the discrimination to prevent which the Act is directed is limited to discrimination between unionists and non-unionists or includes also discrimination between members of one union and members of another union. On that matter I adopt the same attitude as Lord Maugham. On the questions of procedure I agree that no cause of action is shown. The respondent is not claiming any relief or advantage for himself, and the case is not one in which the court should exercise its discretionary power to make a declaratory judgment. I also agree that the action is not properly constituted in regard to parties. I do not desire to add anything on these matters to what Lord Maugham has said. I concur in the motion proposed. LorpD PorTER. My Lords, this case raises a short but difficult point as to the construction of s. 6 of the Trade Disputes and Trade Unions Act, 1927. The appellants are 351 H. L. (E.) 1942 LoNDON PASSENGER TRANSPORT BoarpD Vv. Moscrop. Lord Wright. H. L.(E,) LONDON PASSENGER TRANSPORT BoarpD v. MoscrRop. Lord Porter. HOUSE OF LORDS [1942] admittedly a public body, and, therefore, within the mischief of the section. That portion of the wording which applies to them and is material for the determination of the present case may be put in shortened form. "It shall not be lawful "|... to impose any condition upon employees whereby 'those who are or 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." Two main contentions were put forward on behalf of the appellants: (1.) It was said that the section only dealt with disputes between unionists and non-unionists; that the respondent was a member of a trade union, albeit not one whose officials might represent him; and that, as the Act had no application to disputes between the members of one trade union and those of another, its provisions were not applicable ; (2.) that in any case no such condition as that referred to in the section had been imposed. In the view that I take it is not necessary to come to any final conclusion as to the first point, but as at present advised I am not prepared to accept the argument. Of course, if "members of a trade union' means "trade union members " the appellants are right. The section would then mean trade unionists and non-trade unionists must not be placed at a disadvantage one as compared with the other, but, to my mind, those words may be construed with at least equal plausibility as meaning members of a particular trade union shall not be placed at an advantage or disadvantage as com- pared with those who are not members of that trade union, whether they be members of another trade union or of none. Prima facie, the phrase 'other employees '' embraces all who are not included in the class composed of members of a trade union and there may be less difficulty in construing ''a'"' as meaning "one "' or a "particular "' trade union than in imputing to it the meaning of "any." Assuming this view to be correct, it has to be deter- mined whether any condition has been imposed whereby the respondent has been subjected to a disability as compared with members of the Transport Union. In discussing the point I find it simpler to consider the contrast between unionist and non-unionist than between members of one trade union and members of another, not because of any difference in principle but because the distinction between A.C. AND PRIVY COUNCIL. 353 the two former classes is more simply expressed in words H.L. (E.) than that between the two latter. Let me assume then that the respondent is a non-unionist, as indeed, he is if "union " means what in his contract it is defined to mean, i.e., the Transport Union. By the refusal to allow him to be represented by any one other than an official of the union the appellants were in fact preventing him from being represented at all, since it was well known that those officials would represent none but their own members and it became known, at any rate at the hearing, that the respondent was not a member of that union. He was, therefore, placed under a disability as compared with members of the union. The difficulty does not lie in ascertaining whether the respondent has suffered a disability or not, but in determining whether a condition has been imposed. If all that phrase meant was that the contract between the party complaining and the authority must not contain any terms by reason of which a non-unionist is under a disadvantage as compared with a unionist I should have less difficulty in construing the phrase as the respondent suggests. It may be true to say that the contract with the non-unionist contains no term placing him under a disability. I discuss this question later, 'but the contract with unionists contains a term which puts them at an advantage as compared with the non-unionists, and, accordingly, places the non-unionist at a disadvantage as compared with the unionist. The section, as I understand it, presupposes a contract applicable to a class of persons which may be composed of unionists or non-unionists or both, and in such a contract advantage or disadvantage are relative terms. There is no datum line—the position of each party is relative to that of the other. If one has an advantage the other must have a relative disadvantage, with the result that the contract which is applicable to both contains a term which puts one under a disability as compared with the other. But is this "imposing a condition "' ? It was: argued on behalf of the appellants that the word 'impose' connoted that the condition was unwillingly accepted by the employee and that anything to which he willingly agreed could not be said to be imposed. I doubt this. No one can compel the employee to accept an engage- ment, but if he does so his willingness is shown by entering into the agreement which he accepts. All that I think a tribunal can consider is whether, albeit on a balance of 1942 LoNDON PASSENGER TRANSPORT BoAarRD v. Moscrop. Lord Porter. 354 HL. (E,) 1942 LoNDON PASSENGER 'TRANSPORT BoarpD v. Moscrop. Lord Porter. HOUSE OF LORDS [1942 | advantages and disadvantages, the employee in fact thought fit to accept the employment. If he does not wish to do so, he need not enter into the contract at all. But if he does I do not think he can be said to act willingly. Nor can I believe that, if a would-be driver in applying for employment says: 'I am a unionist (or non-unionist "as the case may be) and I know you do not like such "persons, I also know you usually pay 5/. but I will take "al," the resultant term of the contract to pay 4/. is not imposed, whereas if the employer had expressed the same view the term would properly be said to be imposed. The object, as I see it, of using the word "imposed "' is not to indicate willingness or unwillingness on the part of the em- ployee, but to make it plain that the condition, if it is rightly to be described as ''imposed," must be shown to be to his disadvantage. I do not think you impose an increase of salary or ameliorated conditions on an employee. You grant them. If this be the true view, no condition contrary to the section has been imposed on the members of the Transport Union, because they have not been subjected to a disadvantage but have only received a benefit. Has, then, a condition been imposed on the respondent? The Court of Appeal found that it had. It was suggested that their method of approach was to construe the respondent's contract as containing an implied term that he would not as of right be entitled to be represented by anyone except one of the officials of the Trans- port Union and that that in effect meant no representation at all. I should have difficulty in accepting such an argument. I see no necessity for implying such a term to give efficacy to the contract, and, if a term is to be implied, this necessity must exist. In your Lordships' House, counsel for the respondent maintained—as, indeed, I think they maintained in the court below—that on the true reading of the contract the term was there and did not need to be implied. The term suggested was that a non-unionist would not be allowed to be represented by anyone except an official of the Transport Union, and, therefore, in effect would be denied representation. As the Court of Appeal stated it (1): "the condition in regard to "representation by an official of the Transport Union imposed "as part of the terms of employment of employees of the (1) [941] Ch. 91, 107. A.C. AND PRIVY COUNCIL. "Transport Board by the provisions of cl. 3 in the schedule to "the memorandum of agreement of June 15, 1937, implies upon "its true construction that no employee unless he be a member "of " that union ''shall be entitled to be represented on the "hearing of an appeal by any person," and by '"'entitled " they meant "shall have the contractual right to be." I do not think that by this statement the Court of Appeal meant that a term ought to be implied. What they say is that the express term, when truly construed, connotes that no one other than a member of the Transport Union will be allowed representation as of right. If I thought that this was the true construction of the respondent's contract I should agree with the Court of Appeal, but I do not think it is. The provision as to representation of employees before the disciplinary board contained in the Brown Book concerns only members of the Transport Union and forms no part of the contract of service between the appellants and the respondent. Plainly not all the terms of that agreement are effective in the case of the respondent : e.g., he is a driver and terms which concern conductors are no part of his con- tract. So, likewise, he is a member of another union and terms which affect members of the Transport Union in no way concern him. His contract of employment, then, is unembarrassed and unaided by the provisions of cl. 3 of the schedule—the representation clause—just as I think they are unaffected by cl. 5 of the schedule which deals with the recognition of the "Union." There is, it is true, an omission from his contract of a term which might have been imposed, but there is no imposition, and, indeed, no such term as is contended for. The employer is not imposing a term. He is omitting an advantage. If, then, that part of cl. 3 which deals with representation forms no part of the respondent's contract, it cannot be or have been imposed on him, and there is no term of his employ- ment which falls under the ban of s. 6 of the Act of 1927. This conclusion makes it unnecessary to pronounce on the further points taken on behalf of the appellants, and I must not be taken to assent to them. There are, however, two observations which I should add: (1.) I do not agree with the suggestion of Scott L.J. that the appellants, by refusing to allow the respondent to be represented by the secretary of his trade union, imposed a condition 355 H. L. (E.) 1942 Lonpon PASSENGER TRANSPORT BoarpD Uv. Moscrop. Lord Porter. 356 HOUSE OF LORDS (1942) H.L. (E.) whereby he was liable to be placed at a disadvantage as 1942 compared with others. The section is, I think, dealing with Loxpon the terms of a man's employment, not with the decisions Passencer which the employer may take from time to time in individual BpaNenan cases. In coming to a decision to refuse representation he is v. merely relying on the general law that there is no obligation MoscroP. on an employer to let his employee be represented on a matter Lord Porter. of discipline, and reliance on the general law is not, in my view, the imposition of a condition. (2.) I think, as indeed I believe all your Lordships think, that it is unfortunate that so great a change between the remedy asked and that given by the Court of Appeal should have been made without the appro- priate amendment in the pleadings. These, however, are minor matters, and for the reasons which I have given I would allow the appeal. :