AN IMPORTANT JUDGMENT

Dominion, Volume 9, Issue 2764, 6 May 1916, Page 12

AN IMPORTANT JUDGMENT

COMPULSORY UNIONISM

ARBITRATION COURT'S POWERS

An important ruling was given by the Court of Appeal yesterday in the case of Annio Jlagner v. Ernest. W. I" 1 . Gohns, concerning the right of the Court of Arbitration to allow an agreed-upon preference clause to. become part of an award. Tho Bench-for .the hearing of this ease was occupied by l'heir Honours the Chief Justice (sir Robert Stout). Jlr. Justice Edwards, Mr. Justice Cooper, Mr. Justioe Sim, and Mr. Justice Bosking. Some mouths ago a barmaid at Wanganui was prosecuted for failing to join the Hotel and Restaurant Workers' Union, that union having in its award the preference clause in question. The barmaid was fined by the Magistrate, but she appealed to the Arbitration Court against her conviction on the ground'that the preference clause was not legal. The clause in question was not the clause framed by the Court itself, and known'as tho "Court's Preference Clause," but was one providing for compulsory unionism. It has from time to time been embodied in agreements between the parties rnd .siibse. quently .confirmed by the Court. When the appeal came 011 for hearing, His Hon-, our Mr. Justice Stringer thought that the question was one to be decided by the Court of Appeal. He accordingly referred it to the higher tribunal, which has decided that there is no power to insert such provision. Mr. C. P. Skerrett", K.C., with him Mr, L. Cohen, of Wanganui, appeared at the hearing for the appellant, while the So-licitor-General (Mr. J. W. Salmond, K.C., appeared for the respondent (the Inspector of Awards). Sir John Findlay, K.C., appeared with the Solicitor-General to watch the interests of the labour unions in the matter. . '

Past Rights and Liberties. In tlie course of liis judgment, the Chief Justice said:— "In dealing with the jurisdiction of the Court I have confined myself- to a bare consideration of the statutes and of cases decided on similar Acts.- It is the function of the Court to try to ascertain 'what the law is, and not to consider questions of policy. If a Court finds the statute now making encroachments on what have hitherto been considered human rights o; liberties, then it is its duty to consider whether tho words making such an encroachment are clear aim definite. If they are ambiguous, it would bo the duty of the Court to assume that past rights aud liberties were not to be invaded by dubious phrases. If the statute is read as counsel lor the Crown and tho trade unions ask, then it is enacting what is known as 'conscription' to labour. The phrase 'compulsory unionism' has been used, and I-have named it 'so-called compulsory unionism.' Compulsion is the antithesis to unionism. Unionism imports voluntary actio'j. One'might as well speak of 'compulsory volunteering' as 'compulsory, unionism.' What is sanctioned in Paragraph (4) of the award is 'compulsion,' or, as we frequently call it, 'conscription.' Is a Court .to gather from dubious phrases, and from an Act that has defined what, 'industrial." matter' means, but lias not mentioned, compulsion or conscription, that system was to be applied to labour? 1 apprehend that would not be giving a judicial interpretation of a statute. It was suggested that tho terms of tho statuto were absolute, and practically the Arbitration Court could in every contest 011 industrial matters between employers and employees do what it pleases. I have aiways said it must he only when tho contest is between employers and employees, and not when it is a disputo between two .classes of workers. Suppose there was a contest whether somo alien non-unionists were to lie employed 111 any industry, or male persons only. The Court, it-may be; might have power to award that such alien non-unionists should not be employed, or that wo-men should not be employed. If, however, it went further in its award and .fined an alien non-unionist for not ]jein» a British subject and a unionist, or fine'd a woman for not being a male, the Court would not, in my opinion, have jurisdiction to do so. Tho Court would then bo going beyond the deciding of an industrial -matter.. So here, this paragraph (-1) of tho award'fines a worker because liejs a non-unionist. . . . Suppose the Court ordered that all persons,' .whatever their employment in the particu. lar industry must, as a pre-requisite to employment by any employer, pay a certain sum of money to a fund for unionist purposes connected with that industry. All would become unionists and unionism would be 110 more as a..differentiation of workers. Further, suppose tho Court came to the' conclusion that ro worker coultl he deemed an efficient worker who kad t not undergone military training, wouid this kind of conscription bo deemed legal Ur again, suppose it should be considered that for a workman to do his best lie ■ must be freed from future financial cares, could tho Court not make thrift compulsory, awarding that sixpenco or one shilling per week should bo paid out of the wages' of every workman into a public fund to provide -superannuation? In faot, where is conscription to stop if the wide power sought for is once granted? _ Conscription, onCe made legal in one dispute, cannot be rejected as a system. If this extensive jurisdiction is to be conferred ou the Arbitration Court, it is, ill my opinion; tho function of the Legislature to enact it in clear and definite language. At present 1 can find nothing to support it in the etatutcs but ambiguous phraseology. The question put to this Court should therefore, in my opinion, be answered—'No.'"-

What the Unions Claimed. - Mr. Justice Edwards read the judgment of himself and Mr.'Justice Cooper. lii the course of their remarks, Their Hon.ours said:— "The claim of the unions iji tho present case is not to ensure employment for themselves—the preference clause would give them that. The claim, is that, although an industry, or an employer' in an industry, may be suffering from want of l workers, which the union of workers in that industry is vnablp to supply, and although there may be nonunionists qualified and willing to fill the vacancies, these, unless they will join an organisation of the .constitution or. management of which they may deeply disapprove, must remain idle, and both they and the employer must suffer,'-without any corresponding benefit even to tl-.o unionists themselves.-We cannot discern in this legislation,an intention expressed with irresistible clearness that qich results should follow from it. On the contrary, construing the statute without reference to the principle which we have , last invoked, the claim made by the unions cannot, in our opinion, succeed. For tho foregoing reasons, the Arbitration Court has not,' in our opinion, jurisdiction to make any provision in ! nil awird which will or may result in the absolulo exclusi&i of non-unionists from tlseir right to be employed in any industry, or which win or may result in the absolute prohibition of-the exercise by any employer of his right to employ non-unionists' in his trade. This docs not, of course, mean that the Court cannot grant preference of employment to unionists."

A Valid Method. Mr. Justice Sim, in a judgment read by Mv. Justice Hosking, pointed out that the question that arose in the aiso concerned the limits within which the jurisdiction to determino an industrial dispute may be exercised. A consideration of tho provisions of the Act and in particular of the definition of industrial Matters in Section 2 made it clear, that, speaking generally, the jurisdiction ivas limited to regulating the business relations between employers and workers. The Court was not entitled to deal in an award with the relatione of employers as between themselves or with the relations between workers and the workers' union. An award might have the effect indirectly of affecting all these relations, but tho Court was not entitled to deal directly with any of them. In this case a duty was imposed on all workers, not already members of tho union, of joining it within a specified time, and an attempt was made to regulato the relations between tho union and lion-monibers. In His Honour's opinion the Court had no jurisdiction to regulate these relations, and such' provisions were outside the subject matter of an award.

In the exerciso of its power to decide as in equity and good conscience it thought fit, the Court might provide in an award that employers should not require aK. unionist to work with a non-unionist. "That," said His Honour, "would be a provision regulating the relations of employers and their employees, mid in my opinion it would bo valid although its effect might be to forco. all non-unionists to join tho union, or to tako tho risk of being excluded from work."

The Dividing Line. In his own judgment, Mr. Justice Hosting said: "It is only by affecting the privileges, rights, and duties of employers and unionists iliter se that thq Arbitration Court can settle an industrial dispute by an award. At this point it may be observed that the prejudice to tliiru parties resulting from the limit placed upon the employers' freedom of contract iu the case put is but an illustration of every case in which an incayticity to contract, whether absolutely or to a limited extent, is imposed by law. By tho imposition on a given person or class of persons to contract tho area of contract which all other persons have hitherto enjoyed is of necessity correspondingly restricted. Now, 'ono dispute in tho present case was, it may be assumed, a claim by the unionist, section commensurato with what purports to bo granted by the provision in question. That was that all workers who were non-unionists at the date of the award should, within seven days thereafter, join the union under penalty for breach of the award, and this is the way, without the option of escaping the penalty by quitting their employment within the seven days. But; as already shown, a claim by unionists is only competent as a dispute over which the Arbitration Court has jurisdiction when the employers are the opposite party. That is to say, the claim must bo made on the employers and be withheld by them. It must be something which tiie employers, if they were so minded, could grant without allowing the claim to go before the Court. The pre-requisite to arbitration proceedings before the Court of an attempt to settlp the dispute before a Council of Conciliation by mutual concession demonstrates this. But the parties could not by any agreement between themselves directly alter the privileges, rights, or duties of third parties,.although they may alter their own at the expense or to the the detriment of the third parties. . . . An award intended to exclude the nonunionists from employment .in a riven industry. as must an award excluding women or youths or aliens from employment therein, must do. bo, not by forbidding those, classes of workers to. take employment, but by forbidding the employers to employ them. This test is more than one of words. It is one of substance. For if the restriction is imposed on the employer it is he who must answer for the consequences of the breach by giving employ, ment, and not the worker for .taking employment. This test also, I think, serves to make the dividing line between jurisdiction and no jurisdiction. It confines tho jurisdiction to the privileges, rights, and duties of the parties before it, and negatives its extension to parties not bofore it." Their Honours all agreed that tho question submitted to the Court 'should be answered in the negative, and judgment was given accordingly.