132

HOUSE OF LORDS [1960]

J- C.» SIE EDWAED BETHAM B E E T H A M AND

1959 ANOTHER APPELLANTS;
Dec. 16.
AND
TEINIDAD CEMENT LTD EESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF TRINIDAD AND TOBAGO.

Trade Dispute — Definition—"Difference" — Trade union acting for

employees of company—Claim for bargaining status—Refusal of
company to recognise union—" Difference " between union and com-
pany—Governor's statutory duty to "inquire" into causes of
dispute before appointing board of inquiry—Administrative, not
judicial or quasi-judicial inquiry—Trade Disputes (Arbitration and
Inquiry) Ordinance, Laws of Trinidad and Tobago, 1950 Rev.
(c. 22, No. 10), ss. 2 (1), 8 (1)—Industrial Courts Act, 1919 (9 &
10 Geo. 5, c. 69), s. 4 (1)—Trade Disputes Act, 1906 (6 Edu>. 7,
c. 47), s. 5.
The Trade Disputes (Arbitration and Inquiry) Ordinance, 1950,
of Trinidad and Tobago (identical in relevant respects with cor­
responding United Kingdom legislation) provides by section 8:
" (1) Where any trade dispute exists . . . the Governor may . . .
" inquire into the causes and circumstances of the dispute, and, if
'' he thinks fit, refer any matters appearing to him to be connected
" with or relevant to the dispute to a board of inquiry appointed
" by him . . ."
By section 2 (1): " ' T r a d e dispute' means any dispute or
" difference between employers and workmen . . . connected with
" the employment or non-employment . . . of any person."
Two out of the number of employees of the respondent company
who belonged to a trade union were dismissed by the company. The
union sought to persuade the company to discuss the cases of the
dismissed men, but the company refused to recognise the union as
authorised to act on behalf of employees who had individual
grievances, stating that the company had its own works committee
for dealing with such cases. Shortly thereafter the union wrote to
the company claiming that it then represented " a substantial
" m a j o r i t y " of the company's employees and was applying " f o r
" bargaining status " for the manual workers of the company, and
it took the matter up with the Commissioner for Labour who, how­
ever, was immediately informed by the company that it had
" no intention of becoming involved in any way with the union
"concerned." On the matter being reported to him, the Governor
of Trinidad, acting under section 8 (1) of the Trade Disputes
(Arbitration and Inquiry) Ordinance, appointed a board of inquiry
to inquire into and report on the causes and circumstances of a

* Present: LORD DENNING, LOBD JENKINS, the R T . HON. L. M. D.

DE SILVA.
 13B
A.C. AND PRIVY COUNCIL.

trade dispute which, the minute of appointment stated, existed. J- C.

Thereupon the company, alleging that there was no trade dispute q „
to be inquired into, began the present proceedings claiming that the
appointment of the board of inquiry was ultra vires and null and BEETHAM
void:— "•
Held, that by definition a trade dispute existed wherever a cmtmr'
" difference " existed, and a difference could exist long before the jjn>.
parties became locked in combat—it was sufficient that they should
be sparring for an opening. Here, where, in relation to their claim
for bargaining status, the union were asking to be allowed to
negotiate and the company were persistently refusing to do so,
there was clearly a difference between them, and " it would be
'' strangely out of date to hold . . . that a difference between a
" trade union acting for its members and their employers cannot be
" a trade dispute." Further, the union, in making its claim for
bargaining status, was acting for its members, for the claim had
been brought to the attention of the union members in the company,
who might fairly be assumed to have approved of it, and, in
consequence, the difference was one '' between employers and work-
" men." Accordingly, at the time when the Governor appointed the
board of inquiry there was in existence a dispute whether the
workmen should be permitted to have the union as their bargaining
agent, and the appointment was not null and void.
Dictum of Lord Wright in National Association of Local
Government Officers v. Bolton Corporation [1943] A.C. 166; 189;
59 T.L.R. 1; [1942] 2 All E.R. 425 applied.
Reg. v. Industrial Disputes Tribunal, Ex parte American
Express Co., The Times, July 23, 1954, approved.
The provision in section 8 (1) of the Ordinance that the Governor
'' may . . . inquire into the causes and circumstances of the
" d i s p u t e " before appointing a board of inquiry meant that he
must inquire in his administrative capacity, and not that he had
to conduct anything in the nature of a judicial or quasi-judicial
inquiry.
Local Government Board v. Arlidge [1915] A.C. 120; 30
T.L.R. 672 considered.
Order of the Supreme Court of Trinidad and Tobago reversed.

APPEAL ( N O . 29 of 1958) from an order of the Supreme Court

of Trinidad and Tobago (November 14, 1957).
The following facts are taken from the judgment of the Judicial
Committee: On April 16, 1956, the Governor of Trinidad appointed
a board of inquiry. I t consisted of Mr. Bernard Gillis Q.C. sitting
alone. His duty was to inquire into a trade dispute which was
said to exist in the island between a company called Trinidad
Cement L t d . and certain of its workmen. On the next day,
April 17, 1956, Mr. Gillis sat to hold the inquiry but the company
at once objected to it. I t said there was no trade dispute for him
to inquire into. Mr. Gillis thereupon adjourned the hearing so
134
HOUSE OP LORDS [1960]

J. C. as to enable the company to challenge the validity of the Gover-

195g nor's action. On May 25, 1956, the company issued a writ in
the Supreme Court of the colony claiming that the appointment
B EETH AM
v by the Governor of the board of inquiry was ultra vires and there-
TKINIDAD fore null and void. The case was tried before Archer J. who, on
LTD. November 14, 1957, made an order declaring the appointment
null and void. The Governor appealed from his decision to Her
Majesty in Council.
In making the appointment the Governor presumed to act
under an Ordinance called the Trade Disputes (Arbitration and
Inquiry) Ordinance, which said in section 8 (1) that: " Where
" any trade dispute exists or is apprehended the Governor may,
" whether or not the dispute is reported to him under this Ordin-
" ance, inquire into the causes and circumstances of the dispute
" and, if he thinks fit, refer any matters appearing to him to be
" connected with or relevant to the dispute to a Board of In-
" quiry . . . appointed by him for the purpose of such reference,
" and the Board shall inquire into the matters referred to it and
"report thereon to the Governor." Section 8 (3) said that the
board might, if the Governor thought fit, consist of one person
appointed by the Governor.
The phrase " trade dispute " was defined by section 2 (1) in
these terms: " ' Trade Dispute ' means any dispute or difference
" between employers and workmen, or between workmen and
" workmen, connected with the employment or non-employment,
" o r the terms of the employment, or with the conditions of
"labour, of any person."
Trinidad Cement Ltd. (hereinafter called " the company ")
had a factory at Claxton Bay where they employed from 300 to
500 men. The Federated Workers' Trade Union (hereinafter
called " the union ") sought to get the workers at the factory to
join the union and succeeded in getting 100 or 200 to do so.
These formed a branch of their own within the union.
On October 15, 1955, the company dismissed a workman called
Clifford Bobb, who was a member of the union. The union took
up his case and wrote to the company asking " for an early inter-
" view along with Mr. Bobb and his witnesses so that an amicable
" settlement can be reached." The company did not reply. The
union wrote again to the company. This letter, too, was ignored.
The union thereupon wrote to the Commissioner for Labour in the
island and asked him if he could arrange a meeting with both
parties under his chairmanship " t o go into this most important
" m a t t e r . " As it happened, just about this time in November,
 135
A.C. AND PEIVY COUNCIL.

1955, the company dismissed another workman called Edmund J- C.

Simon, who was also a member of the union. So the union took 1959
up his case too. They asked the Commissioner for Labour if he r
BEETHAM
could arrange for his case to be discussed at the same time as that Vm
of Mr. Bobb. TRINIDAD
CEMENT
The Commissioner for Labour was willing to do as he was LTD.
asked. He tried to arrange a meeting between both parties: but
he failed because of the attitude taken up by the company. The
commissioner's representative went to see the company's works
manager on November 29, 1955. He was told quite bluntly that
the company " do not recognise the union and are therefore not
" prepared to accede to the union's request for a meeting to
"discuss the dismissal of Clifford Bobb or Edmund Simon."
The works manager said that the company had its own machinery
by way of a works committee for dealing with the grievances of
workmen, and it was not willing to meet the union to discuss the
dismissals.
On January 7, 1956, the matter reached a higher level. The
commissioner having failed to arrange a meeting, the Minister for
Labour himself intervened. He asked the company to come and
see him. At this meeting he told the company's representative
that the company's refusal to meet the union was a source of
embarrassment to the Government: and that if the company
persisted in its attitude, he would have to consider reporting the
matter to the Executive Council with a view to having an inquiry
instituted. Even this had no effect on the company. On January
9, 1956, the works manager wrote to the Minister saying: " We
" are quite unable to discuss the matters referred to any further."
On March 15, 1956, the men at the factory, who were members
of the union, held a branch meeting. They thought that the
inquiry to deal with the Bobb and Simon matters was too long
delayed. A resolution was passed unanimously recommending that
the head office of the union should write to the Government to have
the matter expedited. The men at this meeting were concerned
about the delay with the Bobb and Simon matters and nothing
else.
Thus far there were two matters in dispute: the first was
whether or not the dismissals of Bobb and Simon were justified:
but this had merged into the second, which was whether the
union had any locus standi to take up such matters with the
company. The company refused to recognise the union as being
authorised to act on behalf of its members (like Bobb and Simon)
136 HOUSE OF LORDS [1960]

J. C. who had individual grievances: and the union took strong exeep-
1959 ti°n to this refusal.
On March 26, 1956, the union staked out its claim to recog-
c nition by the company. The union claimed not merely " limited
TRINIDAD " recognition " but " general recognition." If the members of a
LTD union were in a minority in a factory, the union might well claim
to represent its own members in cases of individual grievances,
but it could not claim to bargain on behalf of all the workmen
in the factory. I n such a case the employers might afford the
union " l i m i t e d recognition," t h a t was, recognition limited to
individual grievances. B u t if the members of a union were in a
majority, then the union might claim to make representations on
behalf of everyone—whether members of the union or not—and
might claim full bargaining rights on general questions of wages
and working conditions. I n such a case the employers might
afford the union " general recognition."
The claim which the union made on March 26 was not merely
for limited recognition (which would cover the Bobb and Simon
cases) but for general recognition as a majority union. On t h a t
day the general secretary wrote to the company: " I am directed
" by the executive committee of the above-named union to
'' inform you t h a t the union now represents a substantial majority
" of your employees and is applying for bargaining status for the
" manual workers of your c o m p a n y . " I n addition, he asked for
the membership to be checked to confirm the claim. ( I t should
be noticed t h a t the general secretary brought this letter to the
attention of the branch. H e sent a copy to the secretary of the
branch at the same time as he sent the original to the company.)
The company did not reply to this letter. I t ignored it as it had
done the earlier letters. So the union took the m a t t e r u p again
with the Commissioner for Labour. And he again did his best.
H e wrote to the company asking whether they were agreeable to
the membership being checked. The reply of the company was
short and to the point. I t was dated April 14, 1956, and
addressed to the commissioner: " A s we have no intention of
" becoming involved in any way with the union concerned, we
" do not feel t h a t any useful purpose would be served by adopting
" the suggestion contained in your l e t t e r . "
April 14, 1956, was a Saturday. The letter was received (as
the trial judge found) by the Commissioner for Labour on
April 16, 1956. H e did not wait to tell the trade union about it.
H e seemed to have reported it straight away to the Governor who,
on the self-same day, appointed Mr. Gillis Q.C. to hold an inquiry.
A.C. AND PRIVY COUNCIL. 137

The inquiry, as already pointed out, proved abortive because the J- C.

validity of it was challenged by the company. 2959
From that time forward the branch of the union at Claxton
Bay disintegrated rapidly. The men said: " If we cannot get any „
" result from these two cases, what is the use of belonging to the TRINIDAD
" u n i o n . " By the end of August or September, 1956, not a LTD_
single member was paying his subscriptions. The branch died
and with it all the disputes, whatever they were, petered out.
No longer were the dismissals a live issue. No longer could the
union claim limited or general recognition at Claxton Bay, for
it had no members there whom it could represent. No issue was
left between the union and the company. But serious issues
remained between the company and the Governor of Trinidad:
because the company had successfully challenged his authority
in the courts and he appealed to Her Majesty in Council so as to
know whether his action was lawful or not.

1959. Nov. 11, 12. Sir Lionel Heald Q.G. and J. O. Le

Quesne for the appellants. The fundamental question is whether,
as stated by the Governor in his minute of appointment, there
was in existence on the date when the appointment was made
a trade dispute within the meaning of the Ordinance. It is a
narrow issue, not susceptible of lengthy argument, which depends
on the proper construction of the language of the Ordinance, and
it comes down to the simpler point whether the respondents'
denial of recognition of the branch of the Federated Workers'
Trade Union involves a trade dispute. It is submitted that
Archer J., in holding that the circumstances here, in which
clearly recognition was refused to this branch of the trade union,
did not involve a trade dispute, took altogether a too restricted
view of the meaning of trade dispute. The immediate practical
effect of that decision on the respondent company was very small,
but its effect on the practical utility of the Ordinance and the
industrial conciliation machinery of the colony, in the view of
those most competent to know, may be catastrophic. There is
no serious dispute as to the facts. The respondents have always
taken the view that this trade union was undesirable from their
point of view and that they would have nothing whatever to do
with it, and that their own works committee was quite adequate.
The words " trade dispute " are not new words; it is not a
technical term in any narrow sense. Several judges have said
that each case must be judged on its merits and that reference
to authorities is not of much assistance. No judicial definition
138
HOUSE OP LORDS [1960]

J- C. of " trade dispute " exists or is possible. There is a statutory

1959 definition in the Ordinance, and it has been said that when
Parliament has given a definition that definition should not be
B EET QAM
„ improved but applied. The statutory origin of the words " in
TRINIDAD " . . . furtherance of a trade dispute " is section 3 of the Con-
LTD. spiracy and Protection of Property Act, 1875. See also section 5
of the Trade Disputes Act, 1906, for the definition there. The
words " trade dispute " must be read as ordinary English words
and given a common-sense meaning: Conway v. Wade.1 The
short and clear words in which Lord Goddard C.J. dealt with this
point in Reg. v. Industrial Disputes Tribunal, Ex parte American
Express Co.2 are relied on and adopted as a guidance. See also
Reg. v. Industrial Disputes Tribunal, Ex parte Courage & Co.
Ltd.s; Rex v. National Arbitration Tribunal, Ex parte Bolton
Corporation*; Rex v. National Arbitration Tribunal, Ex parte
Kcable Press Ltd.,5 but nobody would say in the present case
that the union went off on a frolic; and Bents Brewery Co. Ltd.
V. Hogan,* in support of the view that a broad common-sense
view must be taken.
The principal function of trade unions is to negotiate terms
and conditions of employment, and it is difficult to see how the
circumstances here can be described as anything other than a
trade dispute. Archer J. said in his judgment: " T h e company
'' was insisting that no trade dispute existed and that the appoint-
" ment of a board of inquiry was improper. It was saying that
" its attitude had come about because what had started as the
" dismissal of the employees without complaint by its workmen
" had grown into a struggle with the Federated Workers' Trade
" Union. . . . " How could anyone have anything more like a
trade dispute I The refusal to accept a trade union as an advo­
cate of its members is a very definite and substantial thing con­
stituting a dispute which goes to the root of the whole matter.
There was here a dispute, alternatively a difference, between the
respondents and such of their workmen as were members of the
union, whether the workmen should be permitted to have as their
bargaining agent, or otherwise to be represented by, the union, in
1
[1909] A.C. 506, 509, 512, 517, sub nom. National Association of Local
522; 25 T.L.B. 779. Government Officers v. Bolton Cor-
2
The Times, July 23, 1954. poration [1943] A.C. 166, 175, 189;
a [1956] 1 W . L . E . 1062; [1956] 59 T.L.E. 1; [1942] 2 All B.E. 425.
3 All E.R. 41l! s [1943] 2 All E . E . 633.
* [1941] 2 K.B. 405; 57 T.L.E. « [1945] 2 All E . E . 570.
644; [1941] 2 All E . E . 800; (H.L.)
 139
A.C. AND PRIVY COUNCIL.

respect of all or any matters which might possibly be the subject J- 0.

of union representation, and the appointment by the first appel- 195g
lant of the second appellant to be a board of inquiry was in every
respect regular and proper and in accordance with the Ordinance. „
R. W. Goff Q.C. and Raymond Walton for the respondents. TRINIDAD
The decision in this case is not a matter of great moment on the j^,,.
question of industrial relations and conciliation; this is an issue
which depends on the facts of this particular case, the pleadings,
and particularly on the dates. The question is, did the Governor
properly exercise his powers in ordering the board of inquiry at
the moment when he did it? That question does not affect the
trade union position in the colony; it has to be considered as a
question related to these particular facts. The only dispute that
ever got constituted by April 16 was the Bobb and Simon dispute;
that was a separate matter from the other dispute as to the union
being the general bargaining agents, which was only just coming
into being. The appellants are precluded from raising the Bobb
and Simon dispute by the form of their pleadings, and this new
departure by the union of asking for general recognition was not
a thing which had been authorised by the men at all, and the
union did not get it ratified—it cannot be inferred from the
evidence that the men did ratify it. Further, if the men had
authorised the union to seek recognition as their agent, and had
ratified the application by the union, the dispute, if there were
one, could only be a dispute between the company and the
union—not between the company and its workmen, as defined
in the Ordinance. The only thing the men authorised, and the
only thing that was brought to the company and rejected before
April 16, was this issue or question concerning Bobb and Simon.
In Reg. v. Industrial Disputes Tribunal, Ex parte Courage &
Co. Ltd.,1 on which the appellants relied as of practical applica­
tion, there was express evidence that the members of the company
approached the union. Again, in Reg. v. Industrial Disputes
Tribunal, Ex parte American Express Co.8 the men approached
the union; and there was alleged to be widespread discontent,
and a vast number joined the union. [Eeference was also made
to Rex v. National Arbitration Tribunal, Ex parte Keable Press
Ltd. 9 ] In Bird v. O'Neal10 reference was made to Rex v.
National Arbitration Tribunal,11 in which Bennett J. said that

i [1956] 1 W.L.R. 1062. " W.Ind.C.A., April 9, 1957.

s The Times, July 23, 1954. " [1941] 2 K.B. 405, 421.
» [1943] 2 All E.R. 633.
14
0 HOUSE OF LORDS [1960]

J- C. a difference between a trade union and an employer cannot be a

igsg trade dispute. There was not on April 16, 1956, any such trade
dispute as alleged by the appellants concerning the respondents
-DEETHAM . ,
„. in existence.
TRINIDAD There are other aspects of the m a t t e r . The Governor did
CEMENT
LTD. not himself inquire into the m a t t e r as he is required to do by
section 8 (1) of the Ordinance. I t is submitted t h a t he is required
to conduct something in the nature of a preliminary inquiry before
he can refer anything to the board of inquiry, and to give the
parties an opportunity of making representations—it is not p u t
as high as saying t h a t he ought to summon them to appear before
h i m ; it is a quasi-judicial act, not a purely executive act. H e
m u s t have sufficient information to show t h a t there is the trade
dispute which he says is the one which he refers. H e could not
here have had sufficient information to reach t h a t conclusion;
there is no evidence t h a t in relation to the general issue the
Governor ever considered anything at any time. There was here
m u c h uncertainty as to what the dispute was. I t is necessary
t h a t it should be clearly indicated by the Governor to the parties
what it is that has to be investigated. I n the circumstances of
the present case the failure to specify the dispute or difference
vitiates the appointment. [Reference was made to Local Govern-
ment Board v . Arlidge.12\
Raymond Walton following. The real and sole question is
whether on April 16, 1956, there was or was not a trade dispute.
On the events here there was nothing even remotely approaching
a trade dispute within the meaning of the Ordinance, i.e., a
dispute or difference between employers and workmen. The
dispute which was—not meaning to use too harsh a word—
engineered by the union, which had not the backing from the
men, was not a genuine dispute at all.
Sir Lionel Heald Q.G. in reply. No one can doubt t h a t the
responsible officers of the trade union were acting intra vires in
seeking to have access to the members of the company. There
was a dispute, or at least a difference, of a most important
character, namely, a difference as to whether the union should
have any access whatever on behalf of its members.
Any sort of rigidity about the inquiry by the Governor before
he appoints the board of inquiry is quite mistaken. I t is impos­
sible to challenge the m a t t e r s he refers if he thinks t h a t they
are relevant to the dispute.

12 [1915] A.C. 120, 125, 130; 30 T.L.E. 672.

A.C. AND PRIVY COUNCIL. 141

Dec. 16. The judgment of their Lordships was delivered by J. C.

LORD DENNING who, after stating the nature of the claim and the ig5g
relevant statutory provisions as set out above, continued: Their .
Lordships observe that the Ordinance follows the pattern of the EETHAM
legislation in the United Kingdom and uses the self-same words: TRINIDAD
see section 4 (1) of the Industrial Courts Act, 1919, and the LTD
definition of " trade dispute " in section 5 of the Trade Disputes
Act, 1906.
Their Lordships also observe that, although the Ordinance
gives the Governor power to act, not only when a trade dispute
exists, but also when it is apprehended, nevertheless in the
present case the Governor was content to assert, as the basis of
his jurisdiction, that a trade dispute exists. The minute of
appointment, after reciting the Ordinance, went on to say:
" And Whereas a dispute exists between Trinidad Cement
" Limited and certain of its workmen, members of the Federated
" Workers' Trade Union.
" Now therefore the Governor by virtue of the powers vested
" in him by the said Ordinance and of all other powers enabling
" him in that behalf appoints Mr. Bernard B. Gillis, M.A. (Can-
" tab), one of Her Majesty's Counsel, to constitute a Board of
" Inquiry.
" And the Governor directs that the terms of reference to the
" Board shall be as follows:
" (a) To inquire into and report on the causes and circum-
■" stances of the said dispute; (6) To inquire into and report on
" the likely effect (if any) of the said dispute . . . upon indus-
■" trial relations between employers and employed in the Colony
" generally . . . "
Their Lordships draw attention to the fact that the Governor,
in the minute of appointment, did not define the dispute. He did
not say what it was. He left it to be gathered by those con­
cerned from the facts known to them. To these facts therefore
their Lordships now turn. [His Lordship stated the facts set out
above and continued: ] The principal question is this: Did a trade
•dispute exist on April 16, 1956? The Governor did not give any
particulars of the dispute in the order which he made on that day.
But he did in the pleadings in the action. The dispute, he said,
was this: " Whether workmen, being hourly-paid employees in
" the employment of the plaintiff company . . . should be per-
" mitted to have as their bargaining agent, or otherwise to be
4
' represented by, the Federated Workers (or any other) Trade
" Union . . . " That pleading was so comprehensive that the
I42 HOUSE OF LORDS [1960]

J- C. dispute might be said to be the wide question whether the com-

1959 P a n y ought to permit its workmen to be represented by any trade
~~T union at all. No dispute of that width was ever proved. As the
„_ trial judge said: "Non-recognition of trade unions was some-
TRINIDAD " thing that neither of the parties had fought about and it had
LTD. '' been brought into the arena by the Minister without their know-
" ledge or consent." B u t the Governor is not to be tied down
by the wide words of the pleading. I t is a well-established rule
of pleading that any words in an averment can be treated as
surplusage and struck out provided that, after they have been
struck out, that which is left is sufficient to maintain the claim
or defence, as the case m a y b e : see Anderson v. Thornton.1
The Governor is therefore entitled under this pleading to contend
that, even though there was no dispute on the wide question,
nevertheless, there was a dispute (1) " whether workmen . . . in
" the employment of the plaintiff company . . . should be per-
" mitted . . . to be represented by the Federated Workers . . .
" Trade Union "; or alternatively (2) there was a dispute
" whether workmen . . . in the employment of the plaintiff com-
" pany . . . should be permitted to have as their bargaining
" agent . . . the Federated Workers . . . Trade U n i o n . "
As to the first of these alternatives, their Lordships are clearly
of opinion that, following on the dismissals of Bobb and Simon,
there was a dispute whether the workmen should be permitted to
be represented by the union. The facts are plain enough. The
union claimed to represent the two men. The company refused
to recognise the union: and it did so in terms which showed
that the company refused to recognise the union as being autho­
rised to act for any men in respect of their individual grievances.
The union resented this. So, indeed, did the men themselves,
if their attitude at the branch meeting of March 15, 1956, is
anything to go by. The only question that can arise about this
dispute is whether or not it still existed on April 16, 1956. The
judge thought it did not then exist. I t had been relegated to the
background and had become submerged in the claim of the union
for bargaining status.
Their Lordships are prepared to assume that this was the
case: but if so, the second alternative has to be considered: Was
there on April 16, 1956, a dispute whether the workmen should
be permitted to have the union as their bargaining agent? The
trial judge thought not. His reasoning is to be found in this key

i (1853) 8 Ex. 425.

 143
A.C AND PRIVY COUNCIL.

passage of his j u d g m e n t : " The issue which the union was now J- C.
" seeking to raise [by its letter of March 26, 1956] was separate jggg
" and distinct from the Bobb and Simon issue . . . For the first
" time the union was asking for collective bargaining status and „
" on the ground t h a t it represented a substantial majority of the TBINIDAD
" company's workmen . . . There had been no ultimatum on LTD.
" either side and the negotiations had not progressed beyond the
" initial bargaining stage . . . The prime characteristic of a trade
" dispute is deadlock and the determination on the part of both
" sides to the dispute to stand firm. A mere difference in point
" of view cannot by itself constitute a trade dispute, and it is
' ' necessary t h a t the view on each side should be persisted in to the
" point of rigidity."
Whilst their Lordships appreciate to the full the great ability
and care which the judge brought to bear upon the case, they
cannot agree with him in this part of it. By definition a trade
dispute exists wherever a " difference " exists; and a difference
can exist long before the parties become locked in combat. I t
is not necessary t h a t they should have come to blows. I t is
sufficient t h a t they should be sparring for an opening. And it
seems to their Lordships t h a t the parties had reached t h a t point
here, even in regard to the claim for bargaining status. The
union had applied for bargaining status. The company had
ignored the request just as it had ignored previous requests. The
union had sought the mediation of the Commissioner for L a b o u r :
but, when he came forward, the company rejected his approach
out of hand, just as it had rejected his previous approach. " W e
" have no intention of becoming involved in any way with the
" u n i o n concerned." W h e n this s t a t e m e n t is taken in its set­
ting—with the background of repeated refusal by the company
to recognise the union over the two dismissals—the position at
April 16, 1956, can be p u t simply t h u s : " H e r e is this union
" knocking a t the door of the company asking to be let in to
negotiate: and the company time and time again- refusing to
" open it, nay more, keeping it locked and barred against the
" u n i o n . " T h a t was clearly a difference between t h e m which
subsisted at t h a t very time.
B u t then it was said t h a t this was not a difference between
the company and the workmen, as the Ordinance requires, but
only a difference between the company and the union: and
attention was drawn to the s t a t e m e n t by B e n n e t t J . t h a t a
dispute between such bodies is not a trade dispute: see Rex v .
144
HOUSE OP LORDS [1960]

J. C. National Arbitration Tribunal, Ex parte Bolton Corporation.2 To

1959 this their Lordships think t h a t Lord Wright gave a sufficient
—
~ answer when t h a t case reached the House of Lords. H e s a i d 3 :
„. " I t would be strangely out of date to hold, as was argued, t h a t
TRINIDAD '* a trade union cannot act on behalf of its members in a trade
LTD. " dispute, or t h a t a difference between a trade union acting for
" i t s m e m b e r s and their employer cannot be a trade d i s p u t e . "
Accepting this statement, however, it was said t h a t in this case
the trade union was not acting for its members, but for itself.
The claim for bargaining status was never authorised or approved,
so it was said, by any of the members of the branch at Claxton
B a y . I t was done by the head office acting on its own initiative.
And reliance was placed on observations in some of the cases t h a t
if a trade union acts " on a frolic of its o w n , " there is not a trade
dispute: see Rex v . National Arbitration Tribunal, Ex parte
Keable Press Ltd.1; Reg. v . Industrial Disputes Tribunal, Ex
parte Courage & Co. Ltd.5 Their Lordships cannot accept this
argument. The claim was m a d e by the executive committee who
were by the rules entrusted with the general m a n a g e m e n t of the
union: and it was clearly within the scope of their authority to
put forward a claim for bargaining status. If the union were able
to obtain bargaining status it would be able to promote the
interest of its members far better t h a n if it were unrecognised.
Moreover, the claim had been brought to the attention of the
branch, who m a y fairly be assumed to have approved of it. The
union can therefore properly be considered as acting for its
members, and, in consequence, the difference was one " between
" e m p l o y e r s and w o r k m e n . "
Their Lordships are glad to find t h a t in England a Divisional
Court presided over by Lord Goddard C.J. in a somewhat similar
case came to a similar conclusion: see Reg. v . Industrial Disputes
Tribunal, Ex parte American Express Co."
There remain, however, two further points. I t was said
that the Governor was under the Ordinance under a duty to
" inquire into the causes and circumstances of the dispute "
before he appointed the board of inquiry: and t h a t he had not
inquired as he ought to have done. H e ought, it was said, to

2 [1941] 2 K.B. 405, 421; 57 « [1943] 2 All E.E. 633.

5
T.L.E. 644; [1941] 2 All E.E. 800. [1956] 1 W . L . E . 1062; [1956] 3
3
Sub nom. National Association of All E . E . 411.
6
Local Government Officers v. Bolton The Times, July 23, 1954.
Corporation [1943] A.C. 166, 189; 59
T.L.E. 1; [1942] 2 All E.E. 425.
A.C. AND PRIVY COUNCIL. 145

have given a fair opportunity to both parties to make repre- J- C.

sentations before he acted: and the familiar passages in Local ^959
Government Board v . Arlidge 7 were. cited. Their Lordships
BERTH AM
reject this contention. True it is t h a t the Governor had to „_
inquire, and no doubt he did—in his administrative capacity— TRINIDAD
but he had not to conduct anything in the nature of a judicial or LTD.
quasi-judicial inquiry.
Then it was said t h a t the Governor did not make a valid
reference to the board of inquiry because he did not, in the m i n u t e
of appointment, specify the nature of the dispute. There is
nothing in this point. If there is a dispute in existence the parties
m u s t know of it and there is no need to tell t h e m about it. They
m a y not be able to formulate it themselves, a t t h a t stage, or a t
any rate, not precisely. So how can the Governor be expected to
do so? Suffice it for it to be formulated by the parties them­
selves when they get before the board.
Their Lordships find, therefore, nothing invalid in the appoint­
m e n t by the Governor of the board of inquiry. I t was not null
and void. Their Lordships will therefore humbly advise H e r
Majesty t h a t the appeal should be allowed and judgment entered
for the defendants with costs. The respondents m u s t pay the
costs of the appeal to H e r Majesty.

Solicitors: Charles Russell & Co.; Braby & Waller,

C. C.
' [1915] A.C. 120; 30 T.L.E. 672.

[HOUSE OF LORDS.J

CAVANAGH . . . . . . . APPELLANT; H.L. (N.I.) #

AND IQ5Q

U L S T E E W E A V I N G CO. L T D . . . . EESPONDENTS: May 11,

I4, lo;
June 18.
Negligence—Safe system of work—Reasonable care—General practice—
"Folly" to neglect to provide precaution—Meaning of "folly."
Damages—Personal injuries—Jury—Assessment of damages by jury—
Whether award so excessive as to warrant interference by appellate
court.

* Present: VISCOUNT SIMONDS, LORD TUCKER, LORD KEITH OF

AVONHOLM, LORD SOMERVELL or HARROW and LORD JENKINS.
A.C. 1960. 10