ARBITRATION ACT.

Gisborne Times, Volume XXV, Issue 2019, 2 March 1907, Page 4

ARBITRATION ACT.

" MR. SKEURETT’S DEFENCE. Tlio following lire some of l.lio oliiof points (from the' Rost) of tins case against tho slaughtermen who loft work at tho Wellington Moat Export Company’s works and tlio Goar Moat Company’s works:— Richard Jones,' president of tlio Slaughtermen's Union, continuing his evidence undor examination by Mr Gray, said ho would doclino to toll the Court why ho discontinued work.

Tho Court intimated that witness could not refuse to answor. Counsel repeated his question and witness said ho thought of shifting to somo other part of tlio island. Counsel: Did you go somewhere elso?

Witness: No. Did you tako any stops to get work olsowhere P—Well, I wrote a couple of lottors. When P—'Tho day after I knocked off work. Proceeding, witness said that ho had heard no reference made at the mooting previously referred to about not going to work noxt day. He could givo no reason why tho men all left work together. Ho supposed tlioy had minds of tlioir own. Nothing had been said at the mooting about a strike—one juvenile might: have mentioned tho word. Personally, witness advised tlio men that it would' be illegal to strike. Mr Gray also called J. Byron, anotlior defendant—a course against which Mr Skerrott vigorously protested, describing it as an extraordinary proceeding. At the close ol -his evidence ho declared, in answer to Air Skerrott, that the men did not in any way act as a union. This closed the case for the Inspector of Awards. THE DEFENCE.

Air Skerrott, in opening tho case for the defendants, submitted that there was no case to answer. It was quite clear that it was an essential ingredient of this offence that it should bo established that there was an industrial agreement or ail award in force in tbo district where tlio alleged offence was committed. Tlio first point, therefore, for the prosecution to establish was that there was an agreement in force. Ho called tho attention of the Court, first of all, to the agreement. AVliat was tlio date of tlio first execution of tliat agreement, according to its terms? Tho only evidence they liad as to the complete first execution of tho agreement was that it was executed by tlio union on lltli July, 1904. His Honor would see that there were two conclusions to be derived from that. Tho first, ho submitted, was that it must lie accepted by tho Court that tho agreement was executed by tlio union on lltli July, 1904, but it was not filed till 11th August, 1904, and by a simplo process of arithmetic, excluding tlio date on which tho agreement was executed, it was not filed till after tho thirty days' within which it should have been filed. Mr S. Brown : Companies have been fined under this agreement. Mr Skerrott: I don’t care whether they have or not; this point) may not have been raised. Nevertheless, ho went Oil to say, there was the fact. AVliat the effect of that might be lie would refer to in a moment. Tho second point he made was tho contrary assumption. Assuming that there was not sufficient evidence as to the execution of the agreement on lltli July, 1904, he submitted that even then the agreement was bad. AVliat were the requirements of the law? Section 25, subsection 2, said that “every industrial agreement shall be for a term to bo specified therein, not exceeding three years from the date of making thereof, as specified therein.” Alight he call the President’s attention to the words “as specified therein.” Those words could refer to nothing except the date of the making of the agreement. The duration of tho term was to be specified therein. So that it was perfectly clear that it was a requirement of an industrial agreement that not only should the term be specified but the commencement of the term should be the making of the instrument as specified in the document.

ALLEGED CONTRADICTIONS. Then pass on to subsection 3 of section 25—“ Tho date of the making of the industrial agreement shall be the date on which it was executed by the party who first executes it. and shell date, and the names of all the original parties thereto, shall be truly stated therein.” He pointed out that no date whatever was specified for the commencement of the term—for the making of the agreement or the commencement of the term. Air Brown: August Ist, 1904.

Air Skerrett: That’s an untrue statement, an absolute contrdiction of subsection 3 of section 25, which requires that the date of the making of the agreement shall be truly stated therein. AVliat was said in the document was untrue in that respect, viz. “This industrial agreement, made in pursuance of the Industrial Conciliation and Arbitration Act, IS9O, this first day of August, 1904.” It was not made on the first day of August, 1904. He asked the Court’ to look at tho conclusion of the agreement—“ln witness whereof the parties hereto have witnessed these presents.” The parties did not execute it on Ist August, 1904; not ono of them did; and therefore the duty of the making of the agreement was not only stated, but was untruly stated. Ho quite appreciated the suggestion that a great deal of inconvenience might bo caused by this construction, but tlio duty of the court was to obey tho law which it administered, and that' law said as clearly as words could speak that they must specify in tho instrument the date of making of the instrument, and that date was the date on which it was executed by tho party which first executed it. There was very great reason for this provision.

IS THE AGREEAIENT ENFORCEABLE?

Ho submitted that it was quite clear there had been an infraction of tlie provisions of the Act in this agreement. In a word, counsel’s submission was that the agreement became void and -unenforceable • as an industrial agreement. This agreement was the creation of the statute, and to it attached consequences of a most important and a most peculiar kind. It became enforceable under the sanction of a fine, and also because tlio ingredients of tho fine were of a penal character. It was also binding on all future members of tbo union. Section 28 of the Act seemed to indicate clearly that the provisions of the statute had to be com-

plied with. It said, “Every industrial agreement duly made, executed and filed shall he binding on the parties thoroto, and also on every member of any industrial union 'or industrial association which is a party thereto.” He said the statute required the agreement to be duly made (duly) executed, and (duly) filed, and that where these requirements were duly observed an agreement was binding on all parties. He submitted where an agreement did not comply with the requirements laid down, it could not have attached to it that protection which the law intended. This agreement was between two companies and a union. A union, ho submitted, was a separate entity. Although the matter was not pertinent to the case, lie further submitted that there might be. some little difficulty in showing that the provisions of the statute made an agreement binding upon an industrial union and also upon its members. Counsel drew the court’s attention to the requirements of section 89 of the Act. Section 102 did not help his friend, and neither did section 110, sub-section 2 of which stated: “A recommendation or order of the Court, shall not be void or in any way vitiated by reason merely of an informality or error of form, or non-compliance with this Act.” Counsel emphasised that these works referred to any “award” — there was nothing in the section having. application to an “industrial agreement.” He submitted the intention of the Legislature was not to give to “industrial agreements” the protection of this principle unless the conditions required by the statute has been observed. Another reason for his contention was this: If you could post-date an award, why not post-date it? This was the clear objection to post-dating an award. In counsel’s opinion it opened the door to fraud, and might render people liable to obligations which were never intended. NO STRIKES. Counsel went on to contend that under section 15, sub-section 3 —if it was read literally—no strikes could take place, not even in the case, where, say, one collection of employes was working under an agreement and five others in a. different place, but within the industrial agreement did not come under that agreement. For this reason he submitted that clause 15 was only intended to apply to a general strike —a strike of a whole trade —in a district. Mr. Brown: Would you say that is the state/ ill Wellington district? Mr. Skerrctt: No; there aro other works. Mr. Brown: I don’t think there are. Mr. Slater; Oh, yes. The works at

Wangumii aro in this industrial district. Air. Skerrott: That strengthens my ease. Although bound by no agreement, they cannot loavo their work. CROWN COUNSEL IN REPLY. Mr. Gray submitted that there was no evidence before tho Court that tbo agreement was executed on lltli July. Air. Cooper, who executed tlio instrument on holialf of tho union, had himself inserted tho date Ist August, but did not say on wliat date the execution took place, except that it was between lltli and 28th July. Tho President: Ho says positively tliat it was oxecuted before 28th July. Mr. Skerrott: That is so. Air. Gray wont on to urge that, assuming it was executed between lltli and 28th July, tbo agreement was sufficient. The Court would see that there was no provision in the agreement that in the absence of strict observance of any of the provisions the agreement should be void. llis Honor: Was it made in accordance with the Act if it was not dated. . . Air. Cray : It is dated, and ll it is dated it is made. His Honor know that in the practice of tho profession many deeds were executed, and did not boar the exact date of the execution. His Honor: AATiat is the effect ol non-compliance with this provision ? Air. Gray: No effect at all? Air. Grav: I submit it has no effect at all.' AVlien the agreement was entered into it was made, and it was executed according to the formalities of both of the contracting parties, and it was filed within thirty days. The Court was entitled to say that it was proved (or at all events, not disproved) that it was executed by the union on some date between ilth and 28th July. , . , His Honor: The difficulty is about tho date. . . Mr. Gray: There is no evidence that it was not executed on lltli July. Counsel went on to point out that the agreement had been acted uiion and adopted by the parties for a period of three years, or nearly, and ho relied upon the fact that it had boon acted upon by both employers and employes. He submitted that the agreement was executed on lltli July ,aiul next that it was not material to insert the actual date of the making by the first party so long as tliat date was within 1 unit within which the document might he filed. Ho also submitted that there was no express provision that the document should not ho binding, because it was not duly dated, and, lastly, lie submitted tliat there was no provision in tlie Act which made the non-observance of any of those provisions a ground for the voiding of the agreement. lie would add that tho agreement had in fact been adopted by all parties and acted upon by them.

FURTHER ARGUMENT

Mr. Skorrctt pointed out that if compliance with this section was a. condition precedent to the validity of an industrial agreement, the tact that the agreement had been acted upon could not give the Conit juiisdiction. If the statute said that ceitain conditions must bo complied with no party had any power to abrogate the conditions which the law had made. Either the condition' which liad not been performed was a condition precedent, or there were no conditions at all.' The President: There seems to be no halfway-house. . Mr. Skerrett: No, sir, that is the difficulty my friend is in. If what he says is correct ail _ industrial agreement could he made for five, ten, or twenty years. The Court could enforce an agreement which had never been filed if his contention was correct —an agreement to which the parties were not named or were untruly named in the document. He submitted that it was impossible for the Coui't to hold those conditions as useless, and as having no effect at all. Ho pointed out that the result of that condition was to create an agreement enforceable only under that statute, to give to that agreement certain rights which an agreement did not ordinarily possess. He only wanted to point out that under section 28 the inference must be drawn that these conditions were regarded by the legislature as essential to the validity of the agreement. It would probably seem unsatisfactory to some of the lay members of the Court that they should be compelled to take that view of the provisions of tlic statute. Neverlieless lie submitted, acting on behalf of these men, that they were entitled to their rights, and that unless this was an enforceable agreement, an essential ingredient of these offences was not present. Mr. Brown: You say that no agreement has been existing all along?—Mr. Skerrett: Yes. Mr. Brown > And you have been using it all along, and now turn round and say there is no agreement? . Mr. Skerrett: That is the effect of it. Ho went on to say that the term of the agreement had expired long before the occurrence mentioned, and it only continued in force by virtue of a provision of the statute. If the Court was against him on that point, he presumed it would give him an opportunity of addressing it on tile question of fines. The President said the Court preferred to hear now wliat Mr. Skerrett had to say about tlic whole matter. THE UNION CASE. Mr Skerrett said that in regard to the union caso, he made the same legal objections as ho did in the last. It was clear the union did not strike. How did it aid or abet the strike? Tlio evidence was quite the contrary. It was true the union had passed a resolution to cancel its registrationto commit liari-kari, so to speak, but the union had not used its funds in any way to help the strike, and in no way could it be hold responsible. The secretary of the union seemed to have done all he could to prevent the strike. . In rega/d to tlio amount of the fines, if the Court found it necessary to inflict fines, counsel asked that they should ho small fines. The Court had very large powers, and could impose severe penalties. The agreement in this case had expired. It had been loyally observed during its term. Many of tlio men thought they were free to act as they pleased. They were ignorant of the law. A heavy fine would have a reflex action on their employers, because the men in tliis case were a limited class. Heavy fines would fall ou the industries where they were employed. Where were the fines to go to? He submitted they must go to the other parties to the’ award. The employers did not seek this. Counsel contended that severe punishments were never successful. If the Court could overcome tlio technical objections ho had raised, ho hoped it would proceed by way of moderate fines. PUNISHMENT ASKED FOR.

Mr Gray said lie had nothing to say about the question of fines—that was a matter for the Court —but he submitted there was evidence against the union. The union had made demands as a union on both companies, and at one of its meetings the question of refusing to work or striking—for the word was used—was discussed. It was true that the secretary (Mr. Cooper) discouraged the idea, and pointed out the penalties involved. There was no resolution about a strike, but a resolution was passed deciding on immediate cancellation of the union. This was done as a means to an end. It was absolutely impossible to disassociate the union from tiie individual actions of the men. The resolution to cancel registration was only a subterfuge. Cancellation could not take place for six weeks, and a strike was resorted to immediately. He contended that all the men acted in concert. Counsel also submitted that the oourt should direct that the fine should be paid to the Crown. Section 15 did not say to whom fines were to be imposed, but the duty of enforcing payment would devolve upon the Crown.