230

THE COLLIERY GUARDIAN.

February 4, 1916.

indicate that he stood to the filler in the relation of master
to servant or employer to employed. It was quite true that
the collier received from the respondents the weekly
remuneration due for the work done in the stall, and that the
workmen divided that sum between them in certain shares.

The collier was not, as in the Wrexham case, bound to
pay, and did not, in fact, pay to the filler a fixed wage out
of the sum he himself received, irrespective of its amount,
thus taking upon himself all the risk. The receipt of the
gross remuneration lost all its significance when it was
remembered that where two colliers and two fillers worked
-in one and the same stall, one collier received the entire
remuneration due for the joint work done, and divided it
amongst the four. And yet it was not suggested that the
collier who received the gross sum was the master or
employer of the other collier, who did not. He was, it was
contended, the mere agent, not the master of the latter.

His lordship proceeded to define the relations of collier and
filler respectively. The fair conclusion, he thought, was that
the remuneration for the work done was paid by the defen-
dants, through the agency of the collier, to all the employees
working in each particular stall.

There remained rule 13, upon which much reliance had
been placed. The difficulty in construing it arose from the
fact that the defendants had endeavoured to deal in the same
rule with two entirely different classes of persons, namely,
the servants of independent contractors, over whom it was
necessary for the maintenance of discipline in the mine, that
the defendants should have power and authority to enforce
obedience to the rules and regulations ; and workmen working
under the control of other workmen who had been in the habit
of receiving from the colliery owners the wages of these latter
and paying those wages over to them. And the protection
the rule was meant to afford to the colliery owners was this,
that, having paid the wages once, they would be discharged
from all liability, and could not be bound to see to the appli-
cation of the sum paid. That was a quite intelligible and
prudent object; but it was clear that this rule operated upon
relations theretofore existing, and did not create new rela-
tions.

It did not convert into a contractor one who was not there-
tofore a contractor. Nor did it put a workman in the posi-
tion of one working under or for another workman, or being
paid by another workman, who was not already in that posi-
tion. As, in his view, the plaintiff was not a person working
under or for or paid by the collier Fuller, rule 13 had not
any 'application to this case. The plaintiff was, on the con-
trary, the servant of the colliery owners, receiving as wages
from them such share of the gross remuneration for their
joint labour as Fuller and he should arrange. Since that
fell short of the minimum wage, the plaintiff was entitled to
the declaration he claimed. If the gross sum were sufficient,
if equally divided, to pay the minimum wage to each of the
workmen, then it no doubt would be hard upon the colliery
owners that they should, by reason of the fact that one of
their workmen absorbed the lion’s share, be liable to pay
the deficit to the other, but the gross sum was insufficient, if
equally divided, to pay the minimum wage to each work-
man ; then it made little difference whether the owners had
to pay the small deficit to each, or on an unequal division
a sum equal to both small deficits to one. In his opinion,
the decision appealed from was erroneous, and should be
reversed, and the appeal allowed, with costs.

Lord Shaw of Dunfermline dwelt upon the intention of
the Minimum Wage Act. He said he could find no warrant
in the statute for construing its language—its use of the
word “ employer ”—in any artificial or narrow or particular
sense. The word, on the contrary, should be construed in
its natural, its broad, and its general sense. There might
be many modes of management, arrangements for remunera-
tion, schemes of control, of men working in and about a
mine. These men might fall into many classes ; and the
relations of each of the men so employed might be that of
servant to the mine owner as employer.

Such a construction as that reached by the Court of
Appeal, which for the purposes of the Minimum Wage, Act
held that the relation of employer and servant did not exist
between the mine owner and the filler, was the negation of
what was recognised in the business and organisation both
of labour and of capital. Under that statute rules were made
binding the mine owner on the one hand and those employed
in and about the mine on the other. Colliers and fillers for
all such purposes were all alike, servants working under-
ground, and all under one and the same employer. And so
rules were framed, by a general consent, based on a broad
and practical recognition of facts as they were. Under
other statutes, all the men and all alike were insured, all
the men and all alike had rights to compensation by the
colliery owner, and it was admitted that to apply these
statutes to the appellant—a filler—was a correct procedure.
Why, then, if the respondents were employers, and the
appellant, an employee for all these purposes, should the
relation be ruled out for the purposes of section 1 of the
Minimum Wage Act? There was no prescription which
enjoined this; there was no definition which limited
“ employed ” in this sense.

He thought the proposition of the Court of Appeal was too
narrow, and was in itself indefensible as a representation of
the actual enactment. There was no denial in the judgments
of the courts below that, in the language of Justice Buckley,
“ certain contractual relations “ existed between the
plaintiff and the defendants.” What were those contractual
relations, except those of master and servant, employer and
workman? He would quote the words of Mr. Justice
Bailhache, which read thus :—

If this were not a colliery case, all the usual tests for
ascertaining in whose employment a particular workman
is, would lead one to one result, and one result only;
namely, that the filler in this case is in the employ of
the colliery company. It is the colliery company who
engage him; it is the colliery company with whom he
makes a contract, which is in writing; it is the colliery
company who can take him from one piece of work and
put him to another; they exercise full control over him ;
and it is the colliery company who dismiss him. All those
tests are tests which are applied in other cases, and when
they are all answered in one way they lead to the con-
clusion and the only conclusion that one would otherwise
come to, that the colliery company are the employers of
the fillers in this case.

Such being the state of the facts, what said the statute?
It added another term to this contract : “It shall be an
implied term of every contract for the employment of a
workman underground in a coal mine that the employer
shall pay to that workman wages at not less than the
minimum.” In his opinion, this gave to the workman an
absolute right and imposed upon the employer an absolute
obligation.

The contract signed by the appellant, the filler, and by
the respondents, the colliery owners, appeared to be final on
this topic. Section 2 provided as follows : ” All persons
employed shall be entitled to and shall receive wages and pay-
ment according to the current rate of wages for the time being
paid at the colliery.” Taking the rule as a whole, or as
analytically as might be, it did not appear to give any coun-
tenance to the proposition that the filler did not stand to the
owner in the relation of employed to employer.

But much reliance was placed upon rule 13 as to 11 con-
tractors and other persons.” .It was an elementary principle
of interpretation applicable to statutes, to contracts, or to
rules or schedules, that if possible all sections should be
taken together and should stand together; and it was the
dernier ressort of construction that one section should be
held destructive of the other. Repugnancy was never pre-
sumed, the presumption was all the other way.

In the present case no real difficulty of the kind arose.
He might have some doubt as to whether “ contractors or
other persons ” applied to classes of workmen like colliers
and fillers working in and paid as a team or party. Con-
tractors—whom one would denominate outside contractors—
were well enough known. But the appellant was not
employed, in his view, by a person of that class.

It was said that a collier, not employing or even fetching
a filler, but working alongside of him, and distributing the
slump earnings, was within the class of contractor aimed
at. To test the argument let this be granted. The
immediate consequences was to bring the filler within a
clause that “ he shall be deemed to be ” a servant of the
owner to the extent only that he would be bound to obey
the by-laws and rules. The filler was actually and already
a servant, under the whole category of tests, and, as pointed
out, a servant under a contract which bound the owner to
pay wages.

The object of section 13 was entirely plain from its con-
cluding words : “ 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 con-
tractor or other person for whom such persons work.” Its
true object was, while conserving so far as might be the
discipline of the Act, to relieve the employer from any
obligation of double payment of wages.

The only question that remained was : Was this filler
paid his minimum wage? It was admitted that he was
not. It was further admitted that the actual earnings were
distributed according to the rules, and that there was not
enough money, so to speak, to go round. The appellant
was only paid Fl 2s. 3d., instead of his minimum wage of
Fl 12s. lid. In terms of the Act, the respondents must
pay that balance.

With regard to the Wrexham case, he would point out
that the terms of employment were then different from the
present, and especially also that the action proceeded upon
the footing that the minimum wage had in fact been paid.
But the observations of the majority of the Court of Appeal
in that case would necessarily be deprived of binding
authority by the judgment now pronounced in that House.

Lord Parker of Waddington said that the appellant signed
his name in the signing-on book of the respondent company,
the owners of the colliery. He then proceeded to describe the
nature of the several undertakings subscribed to, and
remarked that the second by-law provided that all persons
employed, should be entitled to receive wages and payment at
the current rate of wages for the time being paid at the
colliery. This was a clear contract that the appellant should
receive wages, and there was nothing so far to rebut the
inference that the wages which were to be paid were payable
by the respondent company.

After referring to other by-laws, his lordship said the 13th
by-law did certainly create some difficulty. The second part
of by-law 13 was not easy to explain. It might be suggested,
of course, that it was inserted per cautelam, for fear the first
part of the clause should impose any obligation to pay wages
on the company, but the suggestion was not very satisfactory,
for the clause was framed on the footing that the respondents
would be bound to see to the payment of the wages due from
the contractor unless or until such contractor should have
been paid by them. He could not help thinking that the
by-law was framed to meet two points, namely : (1) to make
persons not employed by the company bound to obey certain
of the by-laws; and (2) to prevent persons employed by the
company from demanding their proper wage after such wage
had been already paid to some ganger or foreman on their
behalf. If so, it had failed in its object by faulty draftsman-
ship. He did not think that by-law 13 was sufficient to dis-
place the inference arising from the documents that the appel-
lant was employed by respondent company for wages pay-
able by the respondent company, though for the amount of
the wages one had to go to the price list, which contained the
current wages for the time being paid at the colliery. There
was nothing on the face of the documents to distinguish in
any way the position of collier from the position of filler, and
everything which he had already said with respect to the
relationship between the respondent and the .appellant was
therefore equally applicable to the relationship between the
respondent and the collier with whom the appellant was work-
ing during the week in question. The result was that the
joint wage payable to collier and filler for getting and filling
the coal was, at any rate, so far as the documents were con-
cerned, payable by the respondents to their joint receipt, the
apportionment being left to mutual agreement between them.
It remained, however, to be considered how far, if at all, this
result was displaced or modified by the customary course of
dealing between the respondents and their employees at this
particular mine.

His lordship then described the method of payment in the
Sil verwood Colliery, and continued that he could not find
anything in the evidence pointing to the relationship between
collier and filler being that of employer and employee.
Indeed, the evidence pointed to a contrary conclusion, for
had the collier been the real employer of the filler one would
have expected the respondents not only to deduct the 4d.
payable for insurance by collier and filler respectively, but
also the 3d. payable under the Insurance Act by the collier
as employer of the filler, and no such deduction was ever
made. Indeed, the respondents admitted very candidly that
in all respects other than the payment of Wages they were
the employers of the filler, .and that the collier was, if such
employer, only so to the extent of being bound to pay the
wages. He could not, therefore, see that there was anything
in the customary practice prevailing at the Silverwood
Colliery to displace or alter the inference ‘arising from the
documents, that the respondents are the appellant’s
employers for wages.

It was worth while calling attention to the following
point : Suppose both filler and collier entitled to a minimum
wage under the Act, and that their joint earnings are

insufficient to provide it, the respondents admitted their
liability to provide the deficiency. Suppose, on the other
hand, as in the present case, the collier had dis-entitled
himself to his minimum, then, if the respondents’ con-
tention were correct, they not only escaped the obligation
of making provision for the minimum wage of the collier,
but threw upon him the obligation of providing the
minimum wage of the filler. It would be an anomaly if
the collier were subject to this double penalty.

It would be easy to imagine cases in which the collier
might really be in the position of a contractor with the
company, engaging and providing his own fillers, and paying
them such wages as might be agreed. In such -a case it
might be impossible to conclude that the filler was in any
sense whatever employed by the colliery owner, and conse-
quently the collier might be the person liable under section
1 of the Act. Both the Wrexham case and the recent case
of Hooley v. the Butterworth Company might possibly be
justified on this ground, but it would serve no useful purpose
to examine the facts of those cases in detail. He thought
this appeal should be allowed.

Lord Sumner said the judge at the trial found that Fuller
was not Churm’s debtor for his wages, and the balance of
the evidence supported him. In practice, the collier and
filler agreed to share the sum handed over by the colliery
company to the collier, which they had jointly earned accord-
ing to the price list for coal gotten and brought forward.
There was no evidence that if the collier did not receive
enough to pay the filler’s agreed share he had to make up
the amount out of his own pocket. It was true’that experi-
enced colliery managers testified that in practice, at this and
at other Yorkshire pits, the filler looked to the collier for his
wages and not to the company, but he thought this repre-
sented not so much what was actually done as the witnesses’
view of the legal effect of what was actually done. The con-
tracts evidenced by the signing-on-book were contracts sever-
ally entered into between each signatory employee and the
colliery company. This being so, the promise of the owners
of the colliery, expressed in the signing-on book, that they
would perform the by-laws, must, as applied to by-law 2, be
either a promise to pay Churm wages according to the
current rate as their own primary liability, or a promise by
way of secondary liability that the collier, whoever he might
be, should so pay wages to Churm. He thought it could not
be the latter. By-law 13 was inconsistent with a guarantee,
for it was an attempt to provide that the colliery company,
as between itself and Churm, should have nothing at all to
do with wages; whether that attempt was successful or not
was a question. Finally, no one had suggested a guarantee,
and the whole course of business negatived it. From this it
followed that by-law 2 introduced a contract in writing, by
which the employers, the colliery company, were debtors for
his wages to the filler, though their amount is indeterminate,
and is to be determined aliunde. So far the colliery com-
pany would be employers who were under a contractual
liability to pay wages to the workman, and within the Coal
Mines-(Minimum Wage) Act, 1912. Was there anything to
rebut this? It was the critical point of the case.

The Court of Appeal considered the Wrexham case to be
on all fours with the present case. He did not think so.
The foundation of that case was the fact that in actual prac-
tice the collier owed the filler his wages. He recognised his
debt and paid it out of his own pocket, whether the money
he had received from the colliery company was sufficient to
cover it or not. Further, the filler got a day wage from the
collier; whereas here collier and filler shared in their own
fashion a piece rate wage, the joint product of their joint work.
He agreed with Lord Parker of Waddington that the correct-
ness of the Wrexham case did not now arise for consideration.
Here the case was the converse. The colliery company, and
no one else, were the employers at wages in actual practice,
and the question was, were they nevertheless not employers
at wages within the section for other reasons. Hooley v.
Butterley Colliery Company (84 L.J., K.B., 1969) was also
distinguishable. There was no evidence of any express agree-
ment as to the obligation to pay wages, and the court held
that the contractual relations between the parties had been
reduced into and were solely to be found in the written docu-
ments, but while the by-laws there contained an exoneration
similar to the present by-law 13, they contained nothing
equivalent to the initial promise of wages contained in the
present by-law 2. Similarly in Higginson v. Blackwell
Colliery Company (84 L.J., K.B., 1189) the rules incorporated
into the contract contained in the signing-on book were held
not to embody any obligation upon the colliery company to
pay wages to the plaintiff dayman, and on the parol evidence
the county court judge had found that no contract by the
company to pay him wages had been proved. This case
was, therefore, distinguishable also.

On the other hand, in Lord Justice Buckley’s view, the
case made below was that the collier and filler between
them fixed behind the company’s back what the company
were to pay to and for the filler, and this he rejected. He
thought that the true view of the practice, as given in
evidence on this occasion, was that the colliery company,,
by arrangement with both men, placed in the hands of
one the price of their joint work, and so made an end of
it. The Coal Mines (Minimum Wage) Act, 1912, wcls
passed long after practices of this kind had become
established. Its effect on the established practice, whatever
that practice might be proved to be, was another matter.
There was, of course, nothing, either in law or in business,
to prevent a master from being liable to two wage earners
who work together and from paying an aggregate wage,
which they were to divide between themselves as they might
agree.

If by-law 2 made the colliery company employers of the
filler at wages, and debtors to him for wages, though for
an amount to be fixed, so far as he was concerned, in a
special way, the remaining question was whether by-law 13
was adequate to negative this position.

In law, however, the matter turned on by-law 13, and
he did not think it adequate to abate the promise to pay
wages contained in by-law 2. Possibly a differently worded
by-law might achieve this object. Whether or not the
collier was a “ contractor ” appeared to depend on the
question whether the filler was employed by him, a case
contemplated by the Coal Mines (Weighing of Minerals)
Act, 1905, section 2 (2), but in any case he thought he was
within “ other persons,” and that fillers were persons
“ working under and paid by ” other persons. He was not
prepared to make a - distinction between “ working under ”
and “ working with.” The filler was proved to be suffi-
ciently “ under ” the collier for the purpose of this by-law.
The ejusdem generis rule did not apply. There was no
genus of which “ contractors ” were one species and “ other
persons ” another. Why should the owners of the colliery
negative the possibility of their being bound to see to the