April 9, 1915.

THE COLLIERY GUARDIAN.

757

Here again was a contract; a mutual obligation between
the two parties that each of them would observe certain
by-laws. There was nothing in it about wages. The
•third document was the by-laws in question. By-law 2
stated, “all persons employed shall be entitled to and shall
receive wages and payment according to the current
rate of wages for the time being paid at the colliery.”
It was to be noticed that that rule did not say
from whom they would be entitled to receive such wages
and payment. As between the colliery company and the
collier, it might be either the one or the other, and the
bargain here made might mean this : That it'is agreed by
the colliery company' and the other person who was a
party to this contract that there should be paid by somebody
the current rate of wages paid at the colliery. There is to
be an obligation upon somebody to pay it, but upon whom
it is to be is another matter. Then he came to by-law 13 :
“ All persons working under or for and paid by contractors
or other persons shall be deemed to be the servants of the
owners of the colliery to the extent only that they shall be
bound to obey these by-laws and the other rules of the colliery,
'but the owners of the colliery shall not be bound to see to
the payment of or be liable for the wages due to such
persons after they have paid the contractor or other person
for wThom such persons work.” That by-law was perfectly
plain as to what it was intended to provide for; it was
intended to provide for the case, if there be such a case,
of a person who was working under and was paid by the
contractor. If that was so, then the owners were not to
be bound to pay him or be liable for his wages at all. So
that here, plainly, by-law 2 seemed to receive illustration
from by-law 13, and nothing was to be inferred from by-law 2
that the colliery company were to pay, because it remained
open whether it is the colliery company or the person
who was here called the ‘ ‘ contractor or other person; ' ’ and
if the contractor or other person was to pay, then the owners
of the colliery were not bound to pay. It was quite true
that the word here was ‘ ‘ contractor ’ ’ and not ‘ ‘ collier. ’ ’
The word “ collier ” did not occur anywhere in the by-laws
so far as his lordship could see. The word “ miner,” it was
true, was found in by-law 15, but “ miner ” was not a word of
art for the purpose of discriminating between collier and filler.
The language of this trade was that there were colliers
and persons variously called fillers or trammers and certain
other names; there were two classes of persons. It might
be, and he should think it was true, that both of these
were miners, but by-law 13 used the word “contractors.”
“Contractors” he thought there meant colliers, persons
who as the head of a set work a job and work at a job
and receive payment for a job. If that was not so, they had
also the words “ or other persons.” So that clearly these
by-laws contemplated that there would be, or might be,
in the mine persons employed by the colliery company in
the sense that they had signed the signing-on book and
so on, and had contracted to observe the by-laws, who
would not be employed by the colliery company at wages,
but who would be employed by somebody else at wages.
If that was so, the colliery company were not to be liable
to pay them wages. There was nothing at all to show
that there was any contract between the colliery company
and the filler in respect of wages.

The next document was the rates and rules for this
particular district made under the Act, and No. 4 was
this : “In ascertaining the earnings of coal getters or
their workmen paid by the piece, there shall not be deducted
from their gross earnings for their trammers, fillers, or
others working under them a wage more than one shilling
in excess of the minimum rate of wages fixed for those
classes of workmen respectively.” The rate for the filler
or trammer in this colliery was 5s. 9d. This rule provided
that when they were looking to see whether the collier
had had his minimum wage they might deduct from the
gross earnings up to 6s. 9d., if he was paid up to 6s. 9d.,
but they could not deduct more. There had been <a decision
by Sir Edward Clarke by which he had explained the
meaning of the rule to be this. There were cases in which
the collier employed a trammer who was a very good work-
man, who could work very fast and could earn a good day’s
wage, and under those circumstances he was willing to
pay him more than the rate in the colliery, that was more
than 5s. 9d. Sir Edward Clarke pointed out that that
might inure to the benefit of the colliery owner
by reason of the increased output of coal. Therefore it
might be fair, in ascertaining the collier’s minimum wage,
to allow him what he thought was only just and fair,
namely, 6s. 9d. instead of 5s. 9d. It might be the collier
did so well with his filler that he paid him say 8s. 9d.
This rule provided that when they came to ascertain whether
the collier was receiving his minimum wage or not, he
was not entitled to deduct the 8s. 9d. which, by the
hypothesis, he was paid, but only the 6s. 9d. which was
allowed to him under the rule; that is to say, the rule
entirely proceeded upon the footing that as between the
colliery owner and the collier there wTas a calculation in
which the amount actually paid to the filler was not
necessarily the amount which was to be taken into con-
sideration. There was an account as between the colliery
owner and the collier in which the collier was treated as
the person who as the employer of the filler was responsible
to the filler. Were it otherwise, the filler, if he was entitled
to 8s. 9d., would be entitled to have 6s. 9d. as against
the colliery company, which was the most he could get, and
he would be entitled to a further 2s. from the collier; that
is to say, he would have two employers at wages, the
colliery company up to 6s. 9d. and the collier for the
further 2s. Of course, such a. state of things was possible,
but the question was whether there was any. evidence that
such a state of things exists. His lordship said he was
quite' satisfied that there was nothing at all to show that
there could be two sets of employers.

His lordship then turned to the pay sheet, which was the
most difficult document in the story. The evidence showed
that these accounts were made up once a week, and at the
end of the week there was prepared what was called the
collier’s “ pay note.” There was put upon the
collier’s pay note, in the first instance, the amount of the
tonnage rate, the amount attributable to the amount of coal
got. Then there were small items added to this, shift
money, etc. Then came an item that created a difficulty,
4 s. for day work. That was really something payable to the
filler. Then there was 65 per cent, added, which is the
percentage added under the provisions applicable to the
mine: On the other side of the note the only item which
called for mention is insurance, and the insurance was two
men at 4d. each, that is, the collier and the filler. The
evidence was that the collier and the filler had an agree-
ment between themselves to which the colliery owner was
no party. There were various ways in which the colliers
and fillers in this mine and in other mines in the district

agreed to share. The particular way in which these two men
agreed to share was this : the collier first took Is. a day for
the superior position of collier; having deducted that, he
then took the resulting sum and divided it into parts, one
of which belonged to him and the other belonged to the
filler.

What happened in this particular case was that there
were five shifts to be included in this note. The filler
worked the five of them, but the collier overslept himself
one morning, and only attended four of them. The result
of that was that the collier was entitled to four days at
Is. a day first, and he took his 4s. out of the £2 4s.,
leaving £2 to be divided. The collier had worked four
days, and the filler five days. The result was that the
collier was entitled to four ninths and the filler was entitled
to five ninths. Eive ninths of £2 is £1 2s. and a fraction
approaching 3d., which they called £1 2s. 3d. as the nearest
round sum. The filler’s minimum wage was £1 12s. lid.,
and the point in dispute here was, not that the sum was
asked for in this action, but who was to pay the 10s. 8d.,
the difference between £1 2s. 3d. and £1 12s. lid. That
the filler was entitled to it was common ground.

His lordship then dealt with these two items which
created the difficulty. In the first place, as regards the 4d.,
under (article 6 of the Third Schedule of the National Insur-
ance Act, the Insurance Commissioners might make
regulations under which the colliery owner, the person
who superintended the operations of these people, might
deduct, from sums which would be payable by him to the
collier, the insurance money which was payable by the
person employed by the workman. Regulations had been
made to that effect, and those regulations provided that
assuming the facts to be that the collier was the immediate
employer of the filler, the colliery owner was to be deemed
to be the employer for this purpose, and he might deduct
as against the immediate employer the 4d. which was to
be contributed for the benefit of the workman, notwith-
standing that he was not the employer. So that no inference
at all was to be drawn from the fact that 4d. is charged
here. The other item which created difficulty was the 4s.
The 4s. was the sum due to the filler for the one day
when the collier did not come. The question here was :
how did that find its way into the pay sheet? Was it
necessary to draw any inference from that? The evidence
showed it was a wage as between the colliery owner and
the filler. His lordship here read certain extracts from
the evidence given before Mr. Justice Bailhache. He then
proceeded : So that from the evidence it seems to me
quite plainly made out that if the filler goes off for a day
or two days, or some time less than a week, and works
not under his collier, but separately, nevertheless the 4s.,
which I agree would be a debt from the colliery company
to him, in that case is not so treated, but it is put on to the
pay sheet, and by agreement between the three parties,
—because the company, the collier, and the filler are all
parties to this—the filler agrees that his 4s. is to go into
the pay sheet. That is the arrangement of working in
the colliery. Then it is brought into account as between
the colliery company and the filler, and forms part of the
pay sheet. Eor these reasons it seems to me there is
no inference to be drawn either from the 4d. on the one side
or from the 4s. on the other side of the pay sheet, as
indicating that the colliery company owe the filler anything.

Those are all the documents, and it appears to me the
question which emerges is this : It being a practice of this
colliery company to make up their accounts in the way
in which I have stated, and it being the practice that the
aggregate sum which is arrived at in this way is divided
between the collier and filler in any one of the several
ways they think fit, is there to be found any contract
between the colliery owner and the filler to pay him such
wages as is agreed upon as between the collier and the
filler in the absence of the colliery company, as being the
wages due to the filler ? The collier and the filler here agreed
in fact to take out, first, one shilling a day, and then divide
equally, in the way I have mentioned. They might have
agreed to take out two shillings a day, and divide the
balance in the proportions of three fourths and one fourth,
or in any way they thought fit and proper. It was a bargain
simply between them as to how they would divide the fund.
How is it possible to conceive that the colliery company
have become contractually liable to pay the filler a wage
in the amount of which they have no voice? Their obliga-
tion is to pay someone a tonnage rate, with the proper
percentage added, and so on, but when that amount is
arrived at, how much the filler is to get out of that is a sum
determined as between him and the collier, and is in no
way a matter iin which the colliery company have a voice.
It is impossible, under those circumstances, I think, having
regard to the dearth of any indication in the direction in
regard to which I have read, to say that there can have
been as between the colliery owner and the filler an
obligation to pay the wages, the amount of which
is determined irrespective of any authority in the
colliery company to control. That matter, to my mind,
concludes this case. I notice that the learned judge rested his
judgment upon this. This is the dominant sentence in
his judgment. He is contrasting this case with the Wrexham
case, and says this : “It seems to me that the crucial
distinction between this case and the Richards v. Wrexham
case is that in the Richards v. Wrexham case the collier
paid the filler a fixed daily wage, quite irrespective of what
he received from the colliery company; whereas in this case
the collier and the filler share between them the sum which,
at the end of the week, is earned by their joint efforts.”
The ratio decidendi there suggested is that this case differs
from the Richards v. Wrexham case because the filler is
paid out of a fund, but that fund is found by the colliery
company. That is quite true, but I do not see that it
makes any difference at all. It does not matter where
the sum comes from which is found upon the collier’s
pay note. It comes, I agree, from the colliery company, but
because the filler is entitled to a share of that it does not
at <all follow that the person—the colliery owner—who finds
that fund is contractually responsible to the filler who
takes a part of that fund. The difference which the learned
judge found between this case and the Richards v. Wrexham
case, in my opinion, does not exist. It appears to me
here upon all these materials that it is made out that the
only obligation in respect of wages is an obligation binding
as between the collier and the filler, and there is no
obligation whatever as between the colliery company and
the filler in the matter of wages. There was a contract,
I agree, between the colliery owner and the filler to obey
regulations, and so on, as there was in the Wrexham case,
but there is no obligation as between the colliery company
and the filler by which the colliery company is responsible
to pay the filler wages at any rate.

Under the circumstances, it seems to me that the, defen-

dants in this case are not employers within the section
of the Act of Parliament, and consequently this action
fails.

Lord Justice Pickford said he was of the same opinion.
He thought the case was really governed by the case of
Richards v. Wrexham and Acton Collieries. He would not
say the only distinction, but the only distinction of import-
ance, that was drawn by the learned judge between this case
and that was that in that case the filler was paid at a
uniform day rate irrespective of what was got by the working,
and in this case he was paid by a share of the money
that was got. He could not see that that distinction which
was called by the learned judge the crucial distinction
between the two cases was really a distinction in principle
at all. In each case the money out of which the payment
was made came from the working of the coal. It might
be that the collier who agreed to pay on a day wage
might have to pay it although no coal was gotten at all,
but in practice and in substance that wage was paid out
of the money earned by getting the coal just as much
as in the case where the collier and the filler agreed to
share. In each of the cases what the filler was to get
was determined by agreement between the collier and
himself, and whether he was paid at a day rate, or whether
he was paid by share, and if paid by <a share, what share,
was a matter which was determined between him and the
filler, and not dictated to either of them by the colliery
company. He therefore thought this appeal must be allowed.

Lord Justice Bankes said the question in this case
was whether, the colliery company having fixed the
price for getting and filling coal, that is to say an undivided
price for the joint work of the collier and the filler, the
proper inference under all the circumstances was that both
collier and filler were employed by the colliery company
in the ordinary sense, for reward; whether the Wrexham
case was to be accepted as the proper test, and whether
what the men did afterwards was only to divide between
themselves what had been paid to them jointly by the
colliery company, or whether the collier only was employed
by the colliery company, and the filler so far as reward was
concerned was employed by the collier.

He could see difficulties whichever way the case was decided.
Speaking for himself he could not see any satisfactory
distinction between this case and the Richards r. Wrexham
case, and without, expressing any opinion about that case,
except that he was bound by it and desired to follow it,
he expressed no opinion about the facts of this case at all.

The appeal was allowed and judgment entered for the
defendants, with costs.

TRADE AND THE WAR.

The efforts of the Dutch Shipowners5 Committee to
obtain for next half-year coal at 23s. per ton have failed,
and as a result it will be impossible to maintain steam
trawler fishing.

The directors of the British Dyes Limited announce
that <£156,000 of the additional <£200,000 necessary to
continue with the scheme has been subscribed.

The Board of Trade announce that an advisory committe e
representative of the organised workers engaged in the
production of Government requirements, has been appointed
for the purpose of facilitating the carrying out of the
recommendations adopted at the conference between the
Chancellor of the Exchequer and the President of the
Board of Trade and representatives of a number of trade
unions, and for consultation by the Government or by the
workmen concerned. The Government have appointed
the following to be members of the committee :—The Right
Hon. Arthur Henderson, M.P. (chairman), Mr. C. W.
Bowerman, M.P., Mr. Alexander Wilkie, M.P., Mr. Frank
Smith, J.P., Mr. John Hill, J.P., Mr. J. T. Brownlie, and
Mr. W. Mosses (secretary). The first meeting of the
committee was opened by Sir George Askwith.

An organised plot is in operation in this country, states
The Times, by which German agents are promoting and
fostering strikes among our workmen. The object is
chiefly to prevent or delay the fulfilment of contracts for
the manufacture of munitions of war, and also, no doubt
to obtain as much information as possible regarding the
processes of manufacture and other details which would be
of service to the enemy. Already convincing evidence of
the reality of this plot has been obtained by the
Intelligence Division of the Admiralty. It has been
discovered that the agents take every opportunity of
associating with the workmen in their leisure time, and
artfully suggest new grievances or foster any that they
may find already existing. Moreover, they are undoubtedly
doing all they can to induce workmen to drink too much—
another easy means of accomplishing their main object.
It is hardly necessary to add that the authorities are
making every possible investigation.

The Government have appointed a Compensation
Commission, with Mr. H. E. Duke, K.C., M.P., as chairman,
■fco enquire as to what sums ought, in reason and fairness, to
be paid out of public funds to applicants who (not being
subjects of an enemy State) are resident or carrying on
business in the United Kingdom in respect of direct and
substantial loss incurred and damage sustained by them by
reason of interference with their property or business in
the United Kingdom through the exercise by the Crown
of its rights and duties in the defence of the realm,
Mr. Duke’s colleagues on the commission are Sir J. T.
Woodhouse, one of the Railway Commissioners, and
Sir M. G. Wallace, ex-president of the Scottish Chamber of
Agriculture.

Institution of Mechanical Engineers. — At an ordinary
general meeting to be held on Friday, April 16, at 8 p.m.,
at the Institution Storey’s Gate, St. James’s Park, London,
the president Dr. W. Cawthorne Unwin, will deliver his
address.