Of Importance to Unionists

Maoriland Worker, Volume I, Issue 7, 20 March 1911, Page 15

Of Importance to Unionists

Interesting JLaw Case.

JFLOWERS v. WELLINGTON WHARF LABOURERS' UNION.

The Supreme Court was occupied all day Thursday, 10th inst., and portion of Friday in hearing the case of James Flowers v. Wellington Wharf Labourem' Industrial Union of Workers. The case involves the consideration of law points in connection with the Arbitration Act never before decided, and the interest aroused in Labour circles was manifested by the number or persons | present throughout the hearing who are prominently identified with unionism in YVelington Mr. A. W. Jilair (Chapman, Skerrett, Wylie and Tripp) represented plaintiff, and Mr. P. J. O'.Regan. (O'Kegan and Dix) appeared lor defendant Union. Plaintiff had joined the Union in 1906, and his case, as set out by the statement of claim and explained by Mr. Blair, was that by the award of March, 1908, preference was granted to unionists. Mc had fallen into arrears with payments to the Union, in consequence of which ins name and thirteen other defaulters were struck off the roll of members, and a cireula.r letter was despatched to the employers pointing this out, and further that the men referred to could not be employed while unionists Mere available. On or about Bth May plain tiff called at the Union office ana tendered tue sum of 3s 6c!, being entrance fee and amonth's contributions, and asked to be re-admitted as a member. The secretary, Mr McLaren, t&ld him his arrears were 14s 6d, that he could not rejoin unless and 'until these were paid ; also that the 3s 6d paid would be applied in the reduction of the arrears. xiain- J"tifr contended he became then and there a member of the Union in accordance with the Award preference clause, which makes every person eligible for membership who tenders the money required- -tie nevertheless found himself unable to tiiict employment unless as a non-unionist, nor was he, although lie repeatedly applied by letter, ji J lowed any explanation, nor given any statement ot account. In J my last tlie Union summoned Jb'lowers for payment of the arrears then outstanding, amounting to some li)&, but subsequently the case was formally discontinued. J? or the past six months plaintiff had done no work, and now sought to recover the sum of £175 damages, and to obtain a mandamus to compel the defendant Union to enrol him as a member. William Alfred Kennedy, Wellington, Manager of the Union Steamship Company, gave evidence regarding the receipt oi : circular warning the Company not to employ plaintiff in breach of the preference clause; and thereafter James Flower®, plaintiff, gave evidence on the lines of his counsel s opening. Mr. O'Regan, in opening for the defence, said evidently the plaintiff was ambitious to become the New Zealand Osborne. The defence would be that the circular complained of was no threat, but simply a warning to the employers to prevent their breaking the Award preference clause. After the granting of preference the Union made Strong endeavours to induce defaulters oo pay, and Flowers' name and the names of thirteen others, were removed from the roll in accordance with the Union's rules. Thereafter the circular became necesary as a matter of course. The Union acted in accordance with the practice ot ail Unions in refusing to re-admit plaintiff until he had paid bis arrears. A letter was sent plaintiff's legal adviser stating that the defendant Union wouia re-admit plaintiff on pnvment of l!2s, or whatever amount was due. iteply came m the form or a writ of summons. "David McLaren, secretary of the defendant Union m IUU6, deposed that he recollected plaintiff joining the Union in that year. He had always been unpuiictuai in paying his dues, and when preference was granted by the Award of March, it became imperative for defaulters either to pay up or lose the benefit of membership. After strong efforts all paid their arrears except fourteen, of whom plaintiff was one. By direction of the Union, tihe secretary of the Union then sent out the letter complained of, with the result that all the defaulters therein mentioned paid up, except plaintiff and two others. The Union's sole object was to ensure the observance of t'he Award. Witness recollected plaintiff tendering the 3s 6d, and asking to be re-admitted, but he told him he could not be re-admitted, and that the money would be applied in reduction of the arrears. Plaintiff did not apply in writing, as required by the Award, nor did he ask for or receive any rule book or badge of membership. Witness produced the Union books, the entries

in which showed the money paid by plaintiff when he desired to rejoin had been treated as a iiaymeiit in reduction of arrears. Thomas King, treasurer of defendant Union, gave corroborative evidence. Thomas Smith, secretary, had been working secretary of defendant Union since Mr McLaren resigned the position in 1908. He recollected that Flowers had never been a featitefactory member. Plaintiff had admittedly written a .number of letters claiming his rights as a member on the ground that he had been re-enrolled when he paid the sum of 3s 6d, and asking for a statement showing how much, he owed the Union. Witness had not answered some of these letters. He was constantly meeting Flowers and explaining the position to him. There were 1600 members, and it was impossible to adopt the practice of sending out statements. lilvery member had his contribution book, and if he were unable to keep a check by that the Union rules contained provision for inspection of the books, because it was never contemplated that statements ishould be sent out to members. The Union had repeatedly refused men re-admission until they had paid arrears-—sometimes considerably more than a year's subscriptions. In this case vhe circular complained of was isent out after every effort short of sueing had been taken to induce the defaulters to pay. There were fourteen of them, and all but three had paid up, plaintiff being one of the three. The Arbitration required that the roll of members should be purged by striking off the names of nil members one year in arrears, ana the name of plaintiff had been struck off accordingly. He was practically certain that .Flowers' name "was not included in the returns prepared for the Registrar for 1908, 1909 and 1910. At this stage a clerk attended from the Labour Department with the official returns for 1908 and 1909, the last returns not being yet available inasmuch as the Crown law adviser had intimated that they could not be

used as evidence until they had been laid on the table of both Houses of Parliament. On examination of the returns it was found that plaintiff's name did not appear on the 1908 roll, ibut on that joct 1909 appeared the name of John Flowers, which, after conferring with Messrs McLaren and Smith, Mr O'Hegan admitted to be intended for the plaintiff. Mr Blair argued the evidence had proved plaintiff had joined the Union when he paid 3s 6d in 1908, and he had been regarded as a member ever since, inasmuch as his name had been included in the roll of members supplied by the Union to the Labour Department. It was evident plaintiff intended the payment of 3s 6d as entrance fee and subscription, and it was the debtor who always had first right to appropriate a payment. The Union had no right to appropriate the money in satisfaction of arrears unless plaintiff agreed, and it was evident he did not agree. Under these circumstances plaintiff was entitled to a mandamus. Mr O'Hegan stated that if his Honor found against the Union either the issues before the Court, the Union would admit plaintiff to membership without a mandamus. His Honor therefore intimated that the question of a mandamus need not be argued further. Mr Blair, continuing, said the Union's conduct in preventing plaintiff from getting work amounted to a boycott, and it had been settled that the victim of a boycott was entitled to recover damages. Counsel cited several cases decided in England by which the law in this connection had been made quite clear. Quin v. Leathern had decided that a conspiracy to boycott was unlawful and malicious, and Giblan's case had gone further—it had established the point that conspiracy was not a necessary ingredient in the offence, as long as there was an injurious falsehood coupled with a threat. Here there was certainly an injurious falsehood-; —that plaintiff was not a member of the Union when he in fact was, and an implied threat to proceed for breach of the preference clause if plaintiff were employed.

His Honor pointed out there was no evidence of malice in this case. If the Union had done wrong it had done so under an erroneous sense of duty. There was no evidence that plaintiff had suffered any considerable damage. | Mr Blair contended the Union had j been guilty of injurious falsehood, and had thereby injured plaintiff by preventing him from getting a living. His Honor said no cause had been shown for punitive damages. If he fottnd against the Union on the facts, it would be a case for reasonable damages. Mr Blair proceeded to point out that in terms of the award the Union must admit every person of good character who paid the fees required. The word "person" was wider than the description of wharf labourer in the rules of the Union, and notwithstanding the rules, anyone of good character was eligible for admission to the Union. The Union was bound to admit an applicant to membership, even though he were a year behind with his dues. The Union could enfoirce recovery in the Magistrate's Court, and had no lawful right to bar a. man from his right to employment by compelling him to pay the arrears as a condition precedent to admission. He contended the preference clause made it quite clear an applicant could not be denied merely for the reason that he was in arrear. His Honor replied that if Mr Blair's contention were legally correct, the law should be altered. Unions would be helpless under such circumstances. Mr Blair held that the legal right to sue was sufficient to ensure payment of dues. Mr O'Regan agreed the evidence as to what had taken place when Flowers tendered 3s 6cl for re-admission was conflicting. Still the weight of evidence was strongly in favour of the Union. Plaintiffs evidence was flatly contradicted by thai; of McLaren and Iving, and there were circumstances strongly corroborative of the Union's evidence. First, he would point out that plaintiff's application had admittedly not been made in writing, although the preference clause required a written application, and the Union, in order to facilitate compliance with the clause, kept a book ot application forms. The block of the book used at the date of plaintiff's alleged application showed that he had not applied in writing. Was the Court to believe that Mr McLaren admitted him without writing ? If it had been agreed to admit Flowers, the secretary would have handed him the book to fill his application as in the case of other applicants. Secondly, the entries in the Union books showed, the money had not been credited for admission, but in satisfaction pro tanto of arrears. The entries were consistent with Mr McLaren's evidence on this point. Thirdly, although counsel admitted the inclusion of plaintiff's name in the 1909 returns was a circumstance against them, still if he were a member in 1908 his name should be tnere. Section 1?" of Arbitration Act provided that no person's name should be included in the returns if twelve months in arrear. The same section made the contents of the return prima facie evidence of their correctness. The returns, therefore, were not conclusive proof of their correctness, and the question really hinged on the fact of plaintiff's alleged re-admission. If he were a member of the XJnion, his name should have appeared on the 1908 returns. If the evidence satisfied the Court that. Flowers had not been readmitted in 1908, the inclusion of his name in the 1909 returns meant nothing more- than an -error by the Union's officer. If plaintiff was not a member of the Union, the circular was no more than a proper step to ensure the observance of the Award. The circular was wrong if plaintiff were found by the Court to have been a member of the Union, but even in that event there was not the slightest evidence of malice, and malice was an essential ingredient in damages. Counsel submitted that on the evidence the Union had proved Flowers never was admitted after the roll had been purged and his name removed therefrom on account of his owing more than a, year's dues. Mr. O'liegan pointed out that Mr. Blair had candidly admitted that the Union should admit a man twelve months iii arrear as long as he tendered th.3 entrance money and a months' subscription, relying on its legal remedy to recover what was due. That meant- a union had really no control over defaulters. A man cotild allow his arrears to accumulate for a, , year, be struck off and then re-apply , for admission, allowing his arrears to accumulate again. True, the Union j had a legal remedy, but what was the . use of a judgment against a man who . hal nothjigp A judgment for 12.3 ; would carry no costs, and so the > Union would be reduced to a position L of financial helplessness. liegarding l the English cases cited by Mr. Blair, : he pointed out that they all turned on points of trade union law ; in fact,

jriblan's case turned . on. the construction of section 3 of the Trades Disputes of 1906 3 which was not in force in S T ew Zealand. A trade union could ixist at common law. The Trade Union iLct merely defined its status to a imited extent; but there was notttiiiig [ike our Arbitration Act in England, nor was there such a thing as preference to unionists. Consequently the jascs quoted were no authority whatever. His Honor agreed with Mt O'llegan. He would read the cases rated by Mr. Blair. In his opinion bhey had no bearing on this case. Defendant's counsel need not refer to them, further. ~" Counsel would respectfully remind his Honor that he himself, as President of the Court of Arbitration, had repeatedly laid it down that the Arbitration Act was no ordinary statute — that the rules of construction must be loosened in regard to it. In other words, that doubt-" ful points must be construed in the light of the policy of the Statute. He would therefore ask Jiis Honour to disregard the stringent interpretation of the Award —for an Award was to be read with the Act- —as suggested by opposing counsel. Finally, he reminded His Honour that proceedings in the Magistrate's Court had been discontinued for ample reasons and on proper advice, but that it had been made clear by the Union that on payment of 12s, or whatever sum was found to be due, the plaintiff would be re-admitted to the Union. The answer to that letter was a writ. The Union had acted reasonably throughout, and was eri titled to succeed whether the decision wa.s on the facts or the law point or both. Mr. Blair having briefly replied. His Honour intimated that in view of the importance of the case, he would take time to consider his decision, and would deliver a written jtidgment on Tuesday, 21st inst.

Oxur best citizens continuie to be our wocrst exactnples. There is no use in being a Socialist if you are not useful to Socialism.