Scottish Court of Session Decisions

On 29th October 1912 Don Brothers, Buist, & Company, Limited, jute manufacturers, Dundee, pursuers, brought an action against Jessie Anderson, 17 Dallfield Walk, Dundee, defender, and also against The Scottish Insurance Commissioners, Edinburgh, for their interest, in which they sought reduction of a decision of the Commissioners, dated 21st October 1912, determining that in respect of the pursuers' employment of Jessie Anderson the contributions payable under Part I of the National Insurance Act 1911 were 4d. per week by the pursuers and 1d. per week by the defender.

The pursuers pleaded—“The rate of remuneration of the defender being 2s. 1 1 4d. for each working day, and the contributions to National Health Insurance for a female employee where the working day's remuneration exceeds 2s. but does not exceed 2s. 6d. being fixed by the National Insurance Act at 3d. for the employer and 3d. for the employee, the pretended finding of the Commissioners that the said contributions are 4d. a week by the pursuers and 1d. a week by the defender is contrary to the provisions of the statute, and should be set aside.”

The Commissioners, who alone lodged defences, pleaded, inter alia—“(1) The Commissioners having in good faith and intra vires determined the question raised by the pursuers under section 66, sub-section (1) ( c) of the Act, the Court has no jurisdiction to set aside the said determination, and the action should accordingly be dismissed.”

The facts are given in the opinion ( infra) of the Lord Ordinary ( Hunter), who on 13th December 1912 sustained the Commissioners' first plea-in-law and dismissed the action.

Opinion.—“The pursuers are a firm of jute spinners and manufacturers at Dundee. The defender is one of their female employees, but the Scottish National Insurance Commissioners, who alone have put in defences, are called for their interest. The action concludes for reduction of a decision of the said Commissioners under which it was determined that in respect of the employment by the pursuers of the defender the contributions payable under Part I of the National Insurance Act 1911, are 4d. per week by the pursuers and 1d. per week by the said defender.

Under the provisions of the Insurance Act 1911, the contributions payable by employer and employed in the case of employed contributors vary according to the rate of the remuneration of the employed. By Part I of the Second Schedule it is provided that if the rate of remuneration of a female employee exceeds 1s. 6d. but does not exceed 2s. per working day, the contribution to be paid by the employer is 4d. per week, and that to be paid by the employee is 1d. Where the rate of remuneration exceeds 2s. but does not exceed 2s. 6d. per working day, the contribution is 3d. from the employer and 3d. from the employed respectively.

According to the averments of the pursuers, questions arose between them and the defender as to the rate of contribution to be paid by them in respect of the defender, and as to the proportion recoverable by them from her, and the following questions were submitted to the Scottish Insurance Commissioners—‘Whether the value of stamp to be affixed by employer is 6d., and the amount recoverable from the worker 3d., as the rate of remuneration is 2s. 1 1 4d. for a working day of ten hours, being the period of employment for each day except Saturday, fixed in accordance with the Factory and Workshops Act 1901, sec. 24 (1).’

These Commissioners are a statutory body appointed under the Insurance Act, to whom very ample powers, both of an administrative and of a judicial character, are entrusted by the Legislature. Inter alia, section 66 (1) of the Act provides that ‘If any question arises—( a) As to whether any employment or any class of employment is or will be employment within the meaning of this part of this Act, or as to whether a person is entitled to become a voluntary contributor; or ( b) as to the rate of contributions payable by or in respect of any insured person; or ( c) as to the rates of contributions payable in respect of an employed contributor by the employer and the contributor respectively—

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the question shall be determined by the Insurance Commissioners in accordance with regulations made by them for the purpose.’ In virtue of the proviso which follows, provision is made for appeal in special form so far as a question under ( a) is concerned, and the Commissioners may allow a question under ( b) to be determined by an approved society. Nothing, however, is said in qualification of the absolute right of the Commissioners to decide a question under ( c), and, as the decision now challenged was pronounced under that sub-section, it is maintained in defence that the Court has no jurisdiction to set aside the determination of the Commissioners.

The pursuers say ‘the said Commissioners fixed a hearing to take place at Dundee on 2nd October 1912. At said hearing the pursuers were represented and the defender was present. Witnesses were examined, and it was proved by evidence, which was not contradicted, and it is in accordance with fact, that the said defender's employment with the pursuers was liable to be terminated without previous notice by either party; that when working full time the defender was employed for fifty-five hours in each week; that the said full working week was made up of ten hours in each day of the week from Monday to Friday, and five hours on Saturday, being the statutory maximum in terms of the Factory and Workshops Act 1901; that the defender's remuneration in any one week depended upon the number of hours which she might work, and was calculated at the rate of 11s. 7d. for 55 hours; that when the defender worked the full 55 hours in each week she was entitled to receive, in addition to the said 11s. 7d., a bonus of 3d.; and that if the defender should be absent from her employment or not working during any part of any week she was not entitled to the said bonus of 3d., and her remuneration for that week suffered a diminution calculated on the time during which she might not be working at the said rate of 11s. 7d. for 55 hours.’

On 21st October 1912 the Commissioners issued the decision which is now challenged, and which is in the following terms:—‘That in respect of the employment by the applicants of Jessie Anderson, 17 Dallfield Walk, Dundee, the contributions payable under Part I of the National Insurance Act are as follows:—4d. a week by the employer and 1d. a week by the employee.’

It is not said that the Commissioners refused to hear any evidence or argument tendered to them, or that they did not act in good faith in determining the question submitted to them as they did. As I understand the pursuer's case, it is maintained that the Commissioners had to consider (first) what was an ordinary working day of the defender, and (second) what remuneration she in fact received for such a day. So considered they say that the working day of the said defender was a day of 10 hours and that her remuneration was 2s. 1 1 4d. For the Commissioners to take any other view of the facts as proved was to act perversely and in excess of the powers entrusted to them by the statute.

I do not find that the statute has prescribed any regulations for determining what in any particular case is the rate of remuneration per working day. It is obvious that where the employee works for different periods of time on different days and earns different sums in respect of each day's work the rate of remuneration per working day will, or may have to, be arrived at by some system of averaging. It appears to me to be quite possible to construe the words of the statute in the case of the defender's employment by taking as her rate of remuneration per working day the amount which she earns upon an ordinary working day, or by taking the whole amount which she in fact earns during the 6 days which she works and dividing by 6. Now it appears to me that, if two constructions of the language of Part I in the Second Schedule are possible, the Legislature has entrusted the Commissioners with the duty of interpreting the language, and it is not for me to interfere even if I were of opinion that they had reached a wrong conclusion. In a recent case, Board of Education v Rice, 1911, A.C. 179, the Lord Chancellor, at page 182, made, with reference to the powers of the Board of Education to determine questions under the Act, a number of remarks which appear to me to be applicable to the powers of the Commissioners under the Insurance Act. Inter alia, his Lordship said—‘The Board have, of course, no jurisdiction to decide abstract questions of law, but only to determine actual concrete differences that may arise and as they arise between the managers and the local education authority. The Board is in the nature of the arbitral tribunal, and a court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact.’ I do not see how I can decide in the pursuer's favour without reviewing the determination of the Commissioners, upon an actual difference which had arisen between the pursuers and the female defender, under section 66 (1) ( c) of the Insurance Act. As I hold I am not entitled to do so, I sustain the first plea for the Commissioners and dismiss the action.”

The pursuers reclaimed, and argued—It was for the Court, not for the Commissioners, to determine the meaning of the words “working day,” for the pursuers were entitled to have that judicially determined. The Commissioners had not only gone out of their way to decide that question, but had decided it wrongly, inasmuch as they had failed to observe the statutory factors for fixing it prescribed by Part I of Schedule II annexed to the National Insurance Act 1911 (1 and 2 Geo. V, c. 55). Their decision therefore was ultra vires and should be reduced— Caledonian Railway Company v. Glasgow Corporation, July 19, 1905, 7 F. 1020, per the Lord President at p. 1027, 42 S. L. R. 773; Rex v. Board of Education, [1910] 2 KB 165, per Farwell, L.J., at p. 177, aff. [1911] AC 179.

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Counsel for respondents were not called on.