UNLAWFUL LEVY.

Press, Volume LVIII, Issue 17645, 23 December 1922, Page 14

UNLAWFUL LEVY.

WATERSIDERS' FIGHTING FUND. t AN INTERESTING JUDGMENT. | (press association telegram.) J WELLINGTON, December 22. Judgment was given by bis Honour Mr Justice Hosking ;it the Supreme Court this morning in five actions brought against the Wellington Waterside Workers' Union as a result of the Union striking a levy of £1 per year upon its members. Plaintiffs were Hobert Gould, William Charles McGee, Michael Leddy, John Tilley, and Charles Patrick Kavanagh. .Reviewing tfl« case, his Honour saia each piaintm claimed he was a inenuier of the defendant union, and that while he was a member his name was wrongfully removed by the Onion' from the register of members, and he was wrongfuay excluded from the union j and (shortly putting it) was prevented from participating in the benefit or. t.ie union's industrial agreement and ii' ol " rl obtaining work as a watersider. H.acU plaintiff claimed a writ of mandamus commanding the union to recognise him as a member, an injunction restraining the union from /representing that he 1 was not a member thereof, and a sum | of £SOO as damages. At the conclusion j of the hearing the jury was asked to | find in each case what damagesPP aln ~ j tiff should be awarded in the event or j his being entitled to the recovery el any, and it was agreed that all other questions should be left to the judge with power to draw inferences apart from the question of law whether an action for damages was maintainable The case turned upon validity of a fighting or defence fund," a leuy which the union purported to make, and of the steps subsequently taken regard to plaintiff's membership. In December, 1920. the annual conference of the waterside Workers' Federation decided that an industrial fund of £1 per member per annum should be inaugurated. It was not competent, said his Honour, for the Federation to make any levy direct upon members or the individual unions of which the Federation was formed, and effect could be given to the decision only by each union itself imposing a levy upon its _ own members. . Moreover at the time of the conference, the Federation had no rule authorising it to make such, a levy upon the unions. Mr Roberts, secretary or the Federation, said he was aware of tiie fact that, a rule would be required to authorise the Federation to make a levy, and explained that the levy. was to be regarded as a voluntary one until a rule justifying it should be. registered. The resolution adopting the recommendation was couched in terms implying no consciousness of infirmity, and. afforded no indication that- the levy was to be regarded as voluntary. . Many members of unions refused to yegard the levy as binding, the 'Auckland and Onehunga unions, in particular, declining to endorse it whether it was deemed voluntary or otherwise- Large numbers of members of the various unions had paid before the conference_ of 1921. After tracing the further history of the matter, his ' Honour proceeded: "Now I feel no d'oubt that trae £l, levy; purporting to have been 'made by the. Union on jts members was invalid, and at no time >becam© legally enforceable, inasmuch as it was not made inaoccrdance with, the rules of the Union, in oontempt. of these careful provisions common in substance with tho .regulations by which most if not allVothen societies, whether corporate 05 incorporate, -govern themselves, so that business'snail not be sprung upon meetings or transacted, surreptitiously. No sufficient notice. was given of the meeting by which it is said the levy v\vs struck.'. The advertisement intimating that the meeting was to be called gave less th'an, twenty-four hours' notice, and did not disclose'that such a thing as a- levy> was to. be proposed. He regarded. 1 the omissiop indicating j;hat the levy was to be proposed! as fatal to the validity of the meeting as a special meeting, and 'to its competence to make a levy.. The notice'of business to he transacted was to enable a member to determine in his, own interest whether he would' attend, or stay away.. It was urged that Gould and others by attending; the meeting waived amy objection to its .validity. That, might be a Bound point if the meeting had been called for specifio purposes, and the notice wafl too .short or was otherwise irregular, but in the present case that woe no position. The meeting was oonvened as an ordinary meeting, and its business was announced to be "Executive's recommen- . dations, general." Hie could not think that a persoi). attending such a. meeting so convened was precluded , from, afterwards objecting that in addition to the business announced the meeting proceeded ttf transact 'other, business ■which could only be transacted by a special'meeting. It was also said that the resolution, imposing the levy was confirmed by subsequent meetings, but. all that these subsequent meetings really indicated was that a majority of members was willing to abide by the levy whether it was valid '6l* not, and refused to aillow.it to be questioned. '•'Notwithstanding* tfhe evidence of Mr Roberts and Mr Glover in explanation," his Honour continued, '.'the minutes of conference proceedings onthe subjects of 'fighting fund' are, I- think, eloquent, and 1 leave on my mind the impression that the fund might, if it were thought fit, be used in aid of strikes as well as other purposes. I do not, however, think it-necessary for the purposes of this case to determine the precise object or objects of tho fund, or .whether it is illegal. I think, however, that the levy was ultra vires the Federation at the time it was made. At the hearing-it was really not denied. The resolution of the conference was Skilfully worded, and rather avoids language of direct imposition; apparently leaving it to thie unions to make 4 levy on their respective members and hand the proceeds to the Federation. If the Federation had power to require money from unions, no doubt it would have been intra vires the unions, in turn, to make a. levy on members, in order to comply with the requisition. As, however, the Federation did rot possess this power in 1920, the levy by any unio>n on its membera could- only be justified if within .the purposes of the Union. Whether it was so or not depends upon whether those purposes authorised the raising of a, fund which might be used in aid of strikes. • "Whether .it.was ultra vires the Union or not was not much argued, and I think it unnecessary to decide that, question in these .proceedings. A 'further objection to the -validity of the levy is that it was contrary to the terms of the industrial agreement of April 30th, 1920, by which the Federation and Unions were hound, and) this objection I consider well founded undter Clause 43 (the preference clause). Now, as I have neld that the 20s levy was invalid, It follows .that the striking off of the several plaintiffs from the register of members was, so fkr as it proceeded upon the ground that they were in arrear with the levy, wrongful and inoperative. The striking off was admittedly done on May 2nd, 1922, following upon the resolution of the stop-work meeting held on that date. I findi as facts, consequent upon this, the employers' representatives were informed that the plaintiffs were in fact not members and were so informed in order that plaintiffs might be excluded from preference of employment as watersiders, and that plaintiffs were excluded in copßequence. The employers, supposing that the objection to the men was that tHey were unfinancial because of ribn-payment of the 4evy in question, disputed the right of the union to render the men uttfinancial for that luontiimed at foot of next column.)

reason, Contending that m the face of the award and during its continuance'such levy could not be imposed. The objection, however, was met by tne answer that the men . had actually censed to be members through being .struck off, but in addition to non-pay-iment of levy it is contended by tne ' Union that none of the .plamtiits had paid his lawful subscription and levies • amounting to 245, ana that on ptnat ground he was justifiably struck off. i urther that if that was not the cajse he was unfinancial at the time . the Union interposed to prevent his obtaining employment as a unionist and therefore that its interposition was justifiable. It is necessary tq examine these points. The evideiioe satisfies me that all the plaintiffs except Leddy tendered their respective subscriptions and lawful levies Defore the last <lay of April. It follows from the construction I have placed on the rules, that the plaintiffs, ether than Leddy, were "at no time unfinanoial, and could not, on the ground of being unfinanoial, have been deprived of the preference clause ployment under the preference clause of the industrial agreement. It also follows that at the time plaintifts names- were struck off, none of them was in arrear for four months in respect of his dues, and that the striking off was in each case wrongful." '• It was argued by defendants that plaintiffs were not entitled to recover damages—whatever rights they might have to mandamus or injunction. After referring to various legal precedents his Honour expressed the opinion that the Union was responsible in damagot for the acts complained of, and'each plaintiff, with the exception of Loddy, was entitled to writs of mandamus and the injunction asked, subject to payment of lawful dues. Judgment was pronounced for each plaintiff' but Leddy for a writ of mandamus and ni. injunction; but command of the writ and of the injunction is not to be enforceable in any case unless the plaintiff pays to the Union on or before January 10th,, his subscription and other' lawful fees in respect of the year 1922. Judgment was also given for each plaintiff .but. Leddy for damages found by jury, £Ssdc>, together with costs. In. view of the application of each case for a new trial execution is to be stayed, provided defendant on or before January 10th next, pays into Court the sum of £IOO. The Leddy case, both as to relief and costs, is deferred for further consideration.