NO JURISDICTION.

Manawatu Herald, Volume L, Issue 3977, 30 July 1929, Page 4

NO JURISDICTION.

COMPULSION TO JOIN A UNION. AN IMPORTANT DECISION. A decision of far-ti'eaching importance to a'll unions, 'whether of •employers 'or workers, was come to unanimously toy the Pull Court at Wellington on Friday. The case was one in which an employers’ union of an industry attacked a variation of an award miaking it compulsory for all employees to join a. certain workers’ union or suffer dismissal from their employment. The Full (Court held that the Arbitration Oouirt had no jurisdiction to intake such an amendment to any industrial award. On March 4, 1927, and by a subsequent order made on March 12, 3929, the Arbitration Court altered the terms of the Dunedin, Oamaru, Gore, and Invercargill liairdress'eira and tobacconists’ award to the effect that nil persons employed as assistants in the area affected by it. must become members of the Otago Hairdressers’ and Tobacconists’ Assistants’ Industrial Union of Workers or be dismissed from employment, and that only members of; the union could be employed by suleh tobacconists and hairdressers.

The employers attacked the alterations to the award on the grounds: (1) that they did not consent to an order varying the award, and that such consent was necessary by law; (2) that the alterations were beyond the jurisdiction of the Arbitration Court because the provisions amounted to the creation of compulsory unionism; (3) that the order’ of the Arbitration Court placed unwarranted restriction on employers in their choice of employees. The ease came before the Full Court (Their Honours the Chief Justice, Hon. M. Myers), Sir Alexander Herd-man, Mr. Justice Adams, Mr. Justice Blair, and Mi’. Justice iSmith) on July 8 and 9. Mr. J. F. B. Stevenson appeared for the plaintiffs (Arthur Edwin Butt, Vivian 'Simeon Jacobs, and the Dunedin Tobacconists’ Industrial Union of Employers) and Mr. F. iW- Ongley folr the defendants, the Arbitration Court, and the Dunedin, Oamarn, Gore, and Invercargill Hairdressers’ and Tobacconists’ Assistants’ Industrial Union of Workers. 'The Fiill (Cburt. delivered reserved judgment when the members of it were unanimously of the. opinion that the Arbitration Court decision varying the award in the manner complained of should be quashed.

THE CHIEF JUSTICE,

“The real question for determination,” said the Chief Justice (Hon. M. Myers), in his judgment, “is whethetr the order made by the Court of Arbitration on March 12, 3929, was within the jurisdiction of that Court.” In his Honour’s opinion -the point was concluded 3>y a decision of the (Court of Appeal in v9IG in the case Magner v. Gohns. That decision was to the effect that the inclusion of a clause in an award which would have the effect of compelling .workers in the industry affected to join a union was not within the power of the Arbitration Court. While ‘abandoning any argument on the point- he might have in view of itkat decision Mi'. Ongley argued that the following clause wias within the- jurisdiction of the Arbitration Court: — “It shall be a condition of employment of 'all the said employees that they shall join the said union and that they shall remain members of the said union. If any employee shall neglect to become a member of the union within the time specified, he shall be dismissed. If any person who has allready joined the union , . . shall vol-

untarily and of his own action resign from 't!he union, he shall be liable to dismissal, and shall receive a notification from the employer that 'lie is so liable, and unless be rejoins the union within a. week from the date of the notice he shall be dismissed.” “In my opinion,” said the Chief Justice, “there is no jurisdiction to make an award forbidding employers to emjploy in any trade affected by such award any person who is not a. unionist. ... lam unable to see that the Arbitration Court can possibly have jurisdiction to intake in an order under section 92 of the. Act purporting to amend the'a ward a. provision which it has no jurisdiction to make in the awajrd itself.” QUESTION OF MONOPOLY. The judgment of Mr. Justice Blair was of interest from tthe fact that while Mr. Justice Frazer is away in Australia he as presiding ovejr the Arbitration Court.

“The provision that, it be a condition of employment that all employees shall join and remain members of the union, or be dismissed, is attacked,” lie said, “because it confers a 'monopoly of employment upon unionists, and it maik.es it a breach of award for an employer to continue to employ a non-unionist. It is submitted that it is ultra vires the Arbitration Court to insert such a provision in an award. The ordinary clause conferring .preference to unionists gives them the first right of employment as against non-unionists, and it provides also that if an employer has in Ms emjploy a non-unionist, and there is a unionist willing and able to perform the wolrk performed by such non-unionist, ‘then the employer must dismiss the 11011-un-ionist and employ the unionist in his place. This clause confers no monopoly of employment on unionists, but is liimlited to preference only. “It must be remembered that if the,ro is jurisdiction in tihe A riff -

t-ration Court to grant a monopoly of employment to unionists, it would follow that there would be jurisdiction to grant to employers’ unions a monopoly of work, and to forbid non-members of employment associations engaging in the industry. This remiark is true both of employers and of workers that, specific power is given to the Court to grant 'them respectively preference of service or preference of employment over non-unionists, but nowhere in the Act is there any specific provision granting monopoly of work or employment. “ . The distinction .between preference and monopoly is so shapply defined that it is not improper to say that had the Legislature not intended to give to the Arbitration Court the power to confer a monopoly of employment of workers to unionist employers, and a monopoly of work to unionist workers, it would have left such a far-reaching and drastic power to mere inference. The 1 startling nature of the proposition becomes 'apparent 'if the unionist employers advanced a claim to forbid any worker accepting work from a non-unionist employer. . . But where an award prescribes that particular workmen are not to work at their trade or that particular employers may not elmploy workmen in their business, this is going further than imposing conditions, hut is imposing a prohibition. . .. In my view, therefore, the powers of the Arbitration Court, though wide, are not wide enough to take from anyone the right to work at ’his calling.” An order to! have the amendment to the award-quashed was 'accordingly mad*.