Scottish Court of Session Decisions

The Trade Union Act 1871 (34 and 35 Vict, cap. 31), section 4, is quoted supra in rubric.

John Smith, pursuer, brought an action against the Scottish Typographical Association and others, defenders, concluding for decree as follows:—“(First) To find and declare that a resolution or pretended resolution made by the Glasgow branch of the defenders' Association at a meeting of said branch on or about the 19th day of April 1916, and confirmed at a meeting of the Executive Council of the defenders the Scottish Typographical Association held in or about the 2nd day of September 1916, whereby it was resolved, inter alia, that the pursuer be expelled from the Association and deprived of membership, was ultra vires of the defenders, the said Scottish Typographical Association, and that the same was and is now and in all time coming null and void and of no avail, and that the pursuer was unlawfully and without just cause expelled from and deprived of membership of the said Association, and (second) to interdict the defenders, their officers, agents, or servants from carrying into effect or acting upon or enforcing the said resolution.”

The pursuer averred that he was a compositor in regular employment, and had been for twenty-five years a member of the defenders' Scottish Typographical Association, and that the rules of the Association provided, inter alia—“No member shall leave a regular situation without giving or receiving a full fortnight's notice, such notice to be given only at the end of the financial week.” He averred further—“(Cond. 5) On or about the 18th day of March 1916, in consequence of a dispute between the Scottish Alliance of Masters in the Printing and Kindred Trades on the one hand, and the Printing and Kindred Trades Federation on the other, and with which latter the defenders the Scottish Typographical Association is affiliated, a lock-out notice was issued by the said Scottish Alliance of Masters to its members and posted in the workroom of the pursuer's said employers.… (Cond. 6) The pursuer being a foreman was excepted from said notice and was not affected thereby, but notwithstanding this he, on or about 28th March, received a letter or circular from the said Society, dated 27th March, which, inter alia, provided that ‘the lock-out notice must apply to all members irrespective of position.’ The last-mentioned circular also provided that members must claim a full fortnight's notice from the end of the financial week in terms of the rule referred to in condescendence 4. The Society sought by means of this circular to induce the pursuer to break his contract of employment, and it is averred that the Association had therefore no power to issue such letter or circular, and that they acted illegally and wrongfully in issuing same.… (Cond. 7) At the end of the financial week, after receiving said letter or circular, and in order to conform to the rules of the Society, and at the same time implement his contract with his employers, the pursuer

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gave his employers notice on 1st April, being the end of the then current financial week, that his engagement with them would terminate on the 15th day of April following. Had the pursuer acted in accordance with his Society's instructions he would have involved himself in a double breach, namely, a breach of contract with his said employers, and a breach of the Society's rules.… (Cond. 9) On or about the 19th day of April 1916 a meeting or pretended meeting of the members of said Glasgow Branch was held in the St Mungo Halls, Glasgow, at which meeting a resolution or pretended resolution was passed expelling the pursuer from membership of the Association. The pursuer being a member of the Association should have received notice of said pretended meeting, but no notice was sent him nor had he any knowledge that a meeting for the purpose of considering his expulsion from membership was being held. The defenders in failing to send pursuer notice of said meeting at which his expulsion was to be dealt with, acted illegally and wrongfully, and it was ultra vires of the defenders to pass said resolution, and it is believed and averred that the Secretary illegally and wrongfully failed to send him notice of the meeting in order that the said resolution might be passed, and it was passed behind his back.… (Cond. 10) The first intimation the pursuer received that such a resolution was passed was by letter he received from the Branch Secretary, dated 21st April 1916, intimating that as he remained at work when the other members were locked out, it was decided at a mass meeting of the Society that he be expelled the Association. Said letter also intimated that the resolution was confirmed by the Board, that pursuer's re-entrance fee was fixed at £5, and that this sum would require to be paid in full to the Secretary the same night, viz., 21st April. Upon receipt of said letter the pursuer called at the Branch Office and lodged a verbal protest against his expulsion and the procedure at said alleged mass meeting.… (Cond. 12) As the result of a meeting which was held between representatives of the Association and the Association of the Master Printers of Glasgow, which is an Association affiliated to the Scottish Alliance of Masters, it was agreed that certain members who were expelled as aforesaid, including the pursuer, be re-admitted on payment of a reduced penalty of £1, and that upon payment of said last-mentioned sum all the members would return to work, but subject to loss of all benefit to which the pursuer was entitled in respect of his former membership.… (Cond. 15) On or about 29th May 1916 the pursuer received a circular calling a meeting of the Society for 9th June. Part of the business to be transacted at said meeting was ‘appeals against expulsion from membership. The pursuer on receipt of said notice wrote the Committee of Management of the said Branch appealing against the said resolution of the Branch expelling him from membership, on the ground that he did not receive notice of said meeting of 19th April 1916, nor the slip which the members of the Society are entitled to for admission to the meeting; that he was not informed of the intention of the Board to bring his case up at said meeting, and that he tendered notice to his employers in terms of the said rules. He also protested against said meeting of 19th April dealing with the matter prior to the Board of Management having considered same in accordance with the rules.… (Cond. 16) In reply to said appeal the pursuer received a letter from the Secretary of the Society referring him to the rule which deals with appeals. Said last-mentioned rule provides that any member aggrieved at the decision of a Branch Committee shall be entitled to appeal to the first meeting of the Branch, and a final appeal on lodging 2s. 6d. may be made to the Executive Council through the Branch Secretary.… (Cond. 17) Said appeal was refused and the expulsion referred to adhered to. The pursuer thereupon, in terms of the rule referred to in the immediately preceding article, appealed to the defenders' Executive Council. He did not receive any intimation although he was entitled to, and should have received intimation that the said Executive Council was to consider his appeal, and said appeal should not have been dealt with until the pursuer received notice, but on or about 12th September he got notice from the Branch Secretary that the Executive Council unanimously dismissed his ‘appeal against expulsion from membership.’ …”

At the hearing in the Court of Session counsel for the pursuer admitted that the defenders' Association was an illegal combination at common law.

The defenders pleaded, inter alia—“2. The action is incompetent. 3. No jurisdiction.”

On 27th November 1917 the Sheriff-Substitute ( Fyfe) repelled the second and third pleas-in-law for the defenders, and appointed the case to be enrolled in the debate roll.

The defenders appealed to the Sheriff (A. O. M. Mackenzie), who on 15th March 1918 recalled the interlocutor of the Sheriff-Substitute and sustained the second and third pleas-in-law for the defenders, and dismissed the action.

Note.—“This is an action at the instance of a foreman printer against the Scottish Typographical Association, of which he is a member, for declarator that a resolution expelling him from membership is ultra vires and is of no effect, and for interdict against the defenders carrying into effect or acting upon the said resolution. The resolution complained of was carried by a mass meeting of the pursuer's branch of the Association on 19th April, and confirmed by the Executive Council on 2nd September 1916. The pursuer was re-admitted into the Society in May 1916.

The defenders plead that the action is incompetent, and that the Court has no jurisdiction to entertain it, both of these pleas being based on the ground that the defenders but for the provisions of section 3 of the Trade Union Act 1871 would be an illegal Association, whose contracts the Court would not enforce, and that the action is a legal proceeding which the Court

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is precluded from entertaining by section 4 of the same Act.

The pursuer's agent did not admit that the defenders were an illegal combination at common law, and the first question is whether they are an association of that character. On this question I respectfully express my concurrence in the opinion expressed by Lord Skerrington in regard to the same society in Wilson v. The Scottish Typographical Association, 1912 S.C. 534, at pp. 542–3, 49 S.L.R. 397, to the effect that the defenders are an illegal combination at common law. It follows accordingly that the question whether the Court has jurisdiction depends upon whether or not the action is one which the Court is precluded from entertaining by section 4 of the Act of 1871.

Now section 4 enacts, inter alia, that ‘Nothing in this Act shall enable any court to entertain any legal proceeding instituted with the object of directly enforcing or recovering damages for the breach of any of the following agreements, namely—(1) Any agreement between members of a trade union as such concerning the conditions on which any members for the time being of such trade union shall or shall not sell their goods, transact business, employ, or be employed.… (3) Any agreement for the application of the funds of a trade union ( a) to provide benefits to members.…’ The contention of the defenders is that the present action is instituted with the object of directly enforcing an agreement between the members as such as to the conditions on which they should be employed, and also with the object of directly enforcing an agreement for the application of the funds to provide benefits to members.

In order to determine whether the first branch of the defenders' contention is well founded it is necessary to look at the Record in order to ascertain why the pursuer was expelled from the Association, and the nature of the dispute between the parties. Now the pursuer's statement is that he was expelled for continuing to work in a shop from which other members of the Union had been locked out, and he avers that in continuing to work in that shop he was acting in accordance with Rule 29 of the Association, which provides that members shall not leave their employment until the expiry of the period for which they are required to give notice. He avers that in his case this period had not expired, and complains that as he had committed no breach of the rules of the Association in remaining at work, the resolution expelling him was unjust, and was ultra vires of the mass meeting which passed it and the Executive Council which confirmed it. He also complains that he was given no opportunity of being heard before either body. The answer of the defenders is that the pursuer's expulsion was justified because he had violated a well-known rule or usage of the trade by continuing to work in a shop from which other members of the Association had been locked out, and they found upon Rule 53 of the Association, which provides, inter alia, that any member who violates any of the ‘rules of the trade’ shall be immediately expelled.

Now, I assume, as I must at this stage of the proceedings, that the pursuer's averments are true in fact, that he had committed no breach of the rules, and that his expulsion from the Society was not justified under the rules; but, making these assumptions, I am of opinion that the defenders' contention that the action is not one which the Court can entertain, is well founded. The rules upon which the parties respectively found are part of the agreement between the members of the Association as to the conditions on which they shall be employed, and in my opinion the object of the action is nothing else than to enforce that agreement. I am of opinion, accordingly, that the jurisdiction of the Court is excluded by the first part of section 4 of the Act of 1871, and in support of this view I refer to the case of Chamberlain's Wharf, Limited, [1900] 2 Ch 605. In that case a member of a Trade Union of employers who had been expelled for an alleged violation of a rule of the Association as to the conditions on which the members should sell their goods, brought an action to have the Union restrained from acting on the resolution expelling him. He complained that he had not been heard in his defence, but his case necessarily was, although that is not stated in the report, that he had not violated the rules of the society. It was held that the action could not be entertained, in respect that it was a legal proceeding instituted with the object of directly enforcing the agreement between the members as to the conditions on which they should sell their goods. The decision in the case referred to was approved by Buckley, L.J., in the second Osborne case— Osborne v. Amalgamated Society of Railway Servants, [1911] 1 Ch 540.

I am also of opinion that the Court is precluded from entertaining the action on the ground that the action is a legal proceeding instituted with the object of directly enforcing an agreement for the application of the funds of the Association to provide benefits to members. The only, or at least the most obvious, patrimonial loss which the pursuer has sustained as a result of his expulsion from the Society is, that he is now on a lower scale of benefit under some of the schemes of the Association than he would otherwise have been, and I cannot distinguish the case from that of Aitken v. Associated Carpenters and Joiners of Scotland, 12 R. 1206, 22 S.L.R. 796, in which the First Division refused to entertain an action at the instance of a person who had been expelled from membership in the defending Society, and in which reduction of the resolution expelling him was sought on the ground that it was brought for the purpose of directly enforcing an agreement for the application of the funds of the Union to provide benefits to members. The pursuer founded upon the case of Osborne v. The Amalgamated Society of Railway Servants ( cit.). I am unable to reconcile that case

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with that of Aitken, but Aitken's case is binding upon me and I must follow it.

For these reasons I am of opinion that the second and third pleas for the defenders must be sustained.”

The pursuer appealed, and argued—The Sheriff was wrong on both grounds. The present action was an action of declarator of membership of a trade union, and not of the rights of membership— Osborne v. Amalgamated Society of Railway Servants, [1911] 1 Ch 540, per Buckley, L. J., at p. 548. Membership carried with it many rights and privileges, patrimonial and otherwise, in addition to those rights, e.g., to benefits which were not enforceable. The present action was competent— Yorkshire Miners' Association v. Howden, [1903] 1 KB 308, [1905] AC 256, which had been followed in Wilson v. Scottish Typographical Association, 1912 S.C. 534, 49 S.L.R. 397; Wilkie v. King, 1911 S.C. 1310, per L.-P. Dunedin, 48 S.L.R. 1057; Parr v. Lancashire and Cheshire Miners' Federation, [1913] 1 Ch 366; Luby v. Warwickshire Miners' Association, [1912] 2 Ch 371; Kelly v. National Society of Operative Printers' Assistants, 1915, 84 L.J., K.B. 2236, 113 L.T., N.S. 1055, 31 T.L.R. 632; Osborne v. Amalgamated Society of Railway Servants ( cit.) was also in favour of the pursuer. Aitken v. Associated Carpenters and Joiners of Scotland, 1885, 12 R. 1206, 22 S.L.R. 796, was distinguishable, for that action concluded for declarator that the pursuer had been unlawfully deprived of benefits, and for damages, and the only patrimonial loss alleged was the loss of the right to participate in benefits ( per Lord President Inglis at p. 1212). Further, the reasoning of Lord President Inglis in that case had been overruled in the House of Lords in Howden's case ( cit.). Further, if Aitken's case ( cit.) was not good law, neither was the decision in Rigby v. Connol, [1880] 14 ChD 482, for it proceeded upon the same reasoning as the decision in Aitken's case, and it was inconsistent with Osborne's case ( cit.) and Howden's case ( cit.). Chamberlain's Wharf, Limited v. Smith, [1900] 2 Ch 605, was also distinguishable, for in that case the whole of the Union's rules dealt with the conduct of their trade by the members. Further, it was not consistent with Howden's case ( cit.) and Osborne's case ( cit.). The Court might quite well have to construe the rules of a trade union in so far as that might be necessary to enable it to expiscate its jurisdiction in such actions as it had been held competent for the Court to entertain. Gloag on Contract, p. 161, and Greenwood's Supplement relating to Trade Unions, p. 52, were referred to. The reinstatement of the pursuer as a member of the Union made no difference, for if he was wrongly expelled he was entitled to be restored to his original position—mere readmission did not operate complete restoration. That gave the pursuer a sufficient patrimonial right to sue. Even at the worst for him he had a sufficient interest in the fine of £1 which he averred he had been wrongly compelled to pay. The form of the action was competent. In that matter there was no difference between the law of England and the law of Scotland—Brodie Innes, Comparative Principles of the Laws of England and Scotland, p. 208. Actions similar in form to the present had been held competent— Stirling County Council v. Magistrates of Falkirk, 1912 S.C. 1281, 49 S.L.R. 968; Edinburgh and Glasgow Railway Company v. Meek, 1849, 12 D. 153; Scottish North-Eastern Railway Company v. Gardiner, 1864, 2 Macph. 537.

Argued for the defenders (respondents)—The object of the present action as disclosed in the pleadings was (1) to get rid of the expulsion of the pursuerby forcing the Union to accept the pursuer's construction of rule 29, which was a rule regulating the conduct of the pursuer in his trade, and (2) to have him reinstated not as a new member but as a member of twenty-five years' standing, with a consequent right to benefits to which such a member was entitled. Both objects involved the Court in doing what was strictly forbidden by the Act of 1871. Howden's case ( cit.) was distinguishable. The object of the action was to prevent an abuse. In Osborne's case ( cit.) no question of the construction of any rule was raised. In Wilson's case ( cit.) it was proposed to do something that was outside the rules altogether. Wilkie's case ( cit.) was very special. The present action was incompetent— Aitken's case ( cit.); Chamberlain's Wharf case ( cit.); Rigby's case ( cit.); M'Kernan v. United Operative Masons' Association, 1874, 1 R. 453, 11 S.L.R. 219; Shanks v. United Operative Masons' Association, 1874, 1 R. 823, 11 S.L.R. 356; Mullett and Others v. The United French Polishers London Society, 1904, 20 T.L.R. 595, 91 L.T. 133. The Court could entertain an action to prevent misapplication of the trust funds of a Union but not to decide the rights of individual members in those funds. Wolfev. Matthews, 1882, 21 ChD 194, and Amalgamated Society of Railway Servants v. Motherwell Branch of the Society, 1880, 7 R. 867, 17 S.L.R. 607, were referred to. Further, the present action was a declarator without executory conclusions and as such was incompetent— Gifford v. Trail, 1829, 7 S. 854; Lyle v. Balfour, 1830, 9 S. 22; Stewart & Company v. Sillars, 1906, 13 S. L.T. 800.

At advising—