Scottish Court of Session Decisions

The Coal Mines (Weighing of Minerals) Act 1905 (5 Edw. VII, cap. 9), sec. 1 (2), (3), is quoted supra in rubric.

The Coal Mines Regulation Act 1908 (8 Edw. VII, cap. 57) enacts—Section 2 (2)—“The workmen in a mine may … appoint … one or more persons, whether holding the office of checkweigher or not, to be at the pit-head at all times when workmen are to be lowered or raised, for the purpose of observing the times of lowering and raising and the provisions of the Coal Mines Regulation Acts 1887 to 1905 relating to the checkweigher, and to the relations between the owner, agent, or manager of the mine, and the checkweigher shall, so far as applicable, apply to any person so appointed, as they apply to the checkweigher, with the substitution as regards appointment of the workmen in the mine for the persons who under those Acts are entitled to appoint a checkweigher.” Section 1 (7)—“For the purposes of this Act the expression ‘workman’ means any person employed in a mine below the ground who is not an official of the mine (other than a fireman, examiner, or deputy), or a mechanic or horsekeeper, or a person engaged solely in surveying or measuring.”

Robert Addie & Sons' Collieries, Limited, complainers, brought a note of suspension and interdict against Thomas Sullivan, 4 Crofthead Street, Uddingston, respondent, craving the Court to interdict him from “(first) entering upon the pit-head at the colliery known as the Viewpark Colliery of the complainers, situate in the parish of Bothwell and county of Lanark, and from taking part in or interfering in any way with the weighing of the output of the minerals at the said colliery, and from interfering with the hutches by which the minerals are raised at the said colliery, or with the weighing machines or apparatus for weighing the minerals thereat, and from exercising or pretending to exercise the office of checkweigher at said colliery, or doing any act as checkweigher or pretended checkweigher of the miners employed by the complainers thereat; and (second) from entering upon any part of the property or premises or works' of the complainers at or near their said Viewpark Colliery.”

The respondent pleaded, inter alia—“2. The respondent being entitled ( a) as timechecker and ( b) as inspector to enter upon the complainers' premises, the crave of the note should be refused and interim interdict recalled.”

On 24th March 1915 the respondent was removed from the office of checkweigher by the Sheriff-Substitute at Hamilton ( Hay Shennan), and he acquiesced in his removal, and did not now resist the first crave of the interdict.

The facts of the case appear from the opinion of the Lord Ordinary ( Hunter), who on 18th February 1916 granted interdict against the respondent as checkweigher, and “(second) from entering upon any part of the property or premises or works of the complainers at or near their said Viewpark Colliery, except in so far as is necessary for exercising the functions of inspector on behalf of the workmen at said colliery, under section 16 of the Coal Mines Act 1911, and decerns.”

Opinion.—“What I have to consider on the evidence is whether the respondent is timechecker at Viewpark Colliery and also inspector on behalf of the workmen in said colliery, or holds one or other of these offices. The respondent says that he was first appointed timechecker in 1910 by a meeting of the miners, and that although he never received any separate remuneration for so acting, he in the knowledge of the

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complainers from that date discharged the duties of timecheeker as well as of checkweigher. In my opinion there is no sufficient evidence of the respondent's having so acted. On 13th May 1915 a meeting of the workmen of the Viewpark Colliery was held in the Royal Hotel Hall, Uddingston. Notice of the meeting was given by a paper distributed among the workmen. According to the notice the business to be transacted at the meeting was the appointment of a checker under the Eight Hours Act 1908 and two local inspectors under the Mines Act 1911. It is proved that some of the workmen did not receive a copy of the notice calling the meeting and were ignorant of the fact that it was to be held. The number of workmen, including both surface and underground workers, employed at the colliery is 636, of whom about 100 attended the meeting. A motion that a checker be appointed was proposed and carried by thirty votes to sixteen in favour of an amendment against an appointment. On names of nominees being called for only the respondent's name was put forward, and it was decided that a ballot vote for or against should be taken on Monday, 17th May. Three men were appointed to take the ballot. This appears from the excerpt from the minute-book of the Lanarkshire Miners' County Union. That part of the minute dealing with the appointment of inspectors which was then made has been omitted from the excerpt. Notices as to the taking of a ballot were placed at the regular entrances to the mine, and on 17th May 1915 ballot boxes were placed at these entrances and ballot papers were distributed among the workmen. As a number of the workmen enter the mine by irregular entrances I think that some of the men entitled to vote did not receive voting papers. On a count being taken it was found that 336 had voted for the respondent and 132 had voted against him, while there were 6 spoiled papers. Only the underground workers, who number 528, are entitled to vote. It was not proved that anyone not entitled to vote had in fact voted.

[ His Lordship here dealt with the respondent's appointment as inspector, which was not challenged.]

The question of the respondent's appointment as timecheeker is more difficult and complicated. By section 2 (2) of the Coal Mines Regulation Act 1908 (8 Edw. VII, cap. 57) an Act which limited the number of hours that men might be employed underground, it is provided—[ His Lordship quoted the section, v. sup.]. It is necessary therefore to examine the statutory provisions as to the appointment of a checkweigher. That office was created under the Coal Mines Regulation Act 1887 (50 and 51 Vict. cap. 58). Section 13 of that Act deals with the appointment, duties, and removal of a checkweigher. Section 14 deals with the remuneration of a checkweigher who has been appointed by a majority ascertained by ballot of the persons employed at the mine who are paid according to weight. Nothing, however, is said as to the procedure to be adopted in making the appointment, or the giving notice to the owner or manager of the mine of the appointment. The Coal Mines (Weighing of Minerals) Act 1905 (5 Edw. VII, cap. 9) deals with these matters. By section 1 (2) of that Act it is provided that a statutory declaration made by the person who presided at a meeting of the workers held for the purpose of appointing a checkweigher shall be forthwith delivered to the owner, agent, or manager of the mine, and shall be prima facie evidence of that appointment. (3) of the same section provides that where the checkweigher was appointed ‘by ballot of the persons employed in the mine and paid according to the mineral gotten, the declaration shall so state, and if he was not so appointed, then it shall state the name of the persons by whom or on whose behalf the checkweigher … was appointed.’ It appears clear, though it is not so expressed, that the Legislature contemplates the appointment being made by the men at a meeting held for the purpose. Under the Coal Mines (Checkweigher) Act 1894 (57 and 58 Vict. cap. 52) a penalty is imposed upon the owner, agent, or manager of a mine who refuses to offer proper facilities for the holding of any meeting for the purpose of making the appointment of a checkweigher. Section 3 of the Act of 1905 also provides that all persons ‘who are entitled by the principal Act or this Act to appoint a checkweigher or deputy checkweigher shall have due notice given to them of the intention to appoint a checkweigher or deputy checkweigher, by a notice posted at the pithead or otherwise, specifying the time and place of the meeting, and have the same facilities given to each of them for the purpose of recording their votes either by ballot or otherwise in such appointment.’

A great deal of the evidence laid before me dealt with the facilities afforded for voting and the want of knowledge on the part of some of the workers that a ballot was taking place. As these objections were not taken by those entitled to vote, who are not challenging the respondent's appointment, and as the ballot showed a clear majority in the respondent's favour, I should not be disposed to give effect to these grounds of challenge taken by the complainers. It appears to me equally clear that the complainers cannot object to the appointment on the ground that a timecheeker may be removed upon the same grounds as a checkweigher. I am not entitled to assume, though it may be possible, that the Sheriff would have removed the respondent from both offices on account of the acts in respect of which he was removed from the office of checkweigher. I could only give effect to this contention if a checkweigher who had been removed from office were disqualified by statute from acting as timecheeker. 1 have been unable to find such a disqualification in any of the statutory provisions to which I was referred. On the other hand, the owners of a mine appear to me to be entitled to insist on a statutory declaration being handed to them as a condition of their admitting anyone to the mine to act as checker. In the present case they have

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received no such declaration as regards the respondent's appointment. There was no ballot taken on the 13th of May, and that meeting was not adjourned for the purpose of receiving the result of the ballot and making the appointment. The respondent maintains that he was validly appointed on 13th May by the meeting, apart from the ballot, but in that case the declaration would require to state the names of the persons by whom he was appointed. The declaration, however, does not contain these names, the reason being that the meeting only resolved to hold a ballot, but did not in fact appoint. [ The declaration sent is quoted by Lord Mackenzie infra].

I propose to qualify the interim interdict so as to allow the respondent to discharge his duties as inspector, and quoad ultra to make the interdict perpetual.”

The respondent reclaimed, and argued—The Coal Mines Regulation Act 1908 (8 Edw. VII, cap. 57), sec. 2 (2), gave the workmen in a mine, in the sense of section (1) (7), the option to appoint a timechecker, and applied the existing machinery relating to checkweighmen to the timechecker as regards appointment, &c. That machinery was found in the Coal Mines Regulation Act 1887 (50 and 51 Vict. cap. 58), secs. 13 and 14 (1). By these sections a meeting of the workmen was not one of the essential steps in the procedure for the appointment. The Coal Mines (Weighing of Minerals) Act 1905 (5 Edw. VII, cap. 9), sec. 1 (2), dealt with notification of the appointment of a checkweighman and therefore of a timechecker to the employers. That was the purpose of the section, for the employers had an interest to have certain knowledge of the appointment, as it resulted in interference with their absolute rights. That section merely enacted that a declaration in terms of the statute should be prima facie evidence of an appointment, but not that it should be the only evidence. If, however, the declaration was the only evidence possible, the present declaration was in all its essentials—and certainly in so far as the employer's interests were concerned—unexceptionable, and in terms of the statute any defect in it was merely formal and without prejudice to anyone. That section did not make a meeting a prerequisite of a valid appointment. The Coal Mines Regulation Act 1887, sec. 14, dealt with the holding of a ballot, one of the methods of appointment, long before there was any reference to a meeting being held at all. If it, the declaration, was not essential as proof, the evidence disclosed that all the statutory requirements had been complied with. Equal facilities had been given to all who were entitled to vote—(Coal Mines (Weighing of Minerals) Act 1903, sec. 3—and no one not qualified to vote had been shown to have voted. But even if the appointment as timechecker was invalid, the interdict granted by the Lord Ordinary was too wide, for if elected to the office of timechecker validly, the reclaimer would still be debarred from exercising these functions by the interlocutor as it at present stood.

Argued for the complainers—The Lord Ordinary was right. The statute prescribed formalities which must be observed, as the result of this liberty to the employees was an encroachment on the rights of the complainers. If there was a meeting it was not properly convened. The notice called to the meeting all the workmen, whereas only underground workmen were entitled to appoint a timechecker. The business was not solely that of appointing a timechecker, but there was other business with which a different electorate was entitled to deal. It was proved that some of those entitled to vote had no notice of the ballot or ballot-paper, and it must be inferred that others in a similar position to these did not get either also— i.e., those coming in by irregular entrances. Consequently equal facilities were not given to all. The declaration bore that a meeting was duly convened; that was disproved. It was not as the declaration stated a meeting of the workmen; no ballot took place at the meeting; and there was no appointment made by the meeting. The result of the ballot was not communicated to any meeting which could then have made the appointment. Hence, even if the declaration was not an essential formality, the respondent had failed to prove a valid appointment; but if the declaration was essential, then it misstated the facts which it recorded.

At advising—