GROCERY TRADE

Press, Volume LXIX, Issue 21034, 9 December 1933, Page 7

GROCERY TRADE

MOTION TO INVALIDATE AGREEMENT TWO GROUPS OF EMPLOYERS A case, which was brought in the form of a motion for a writ of certiorari, an old form of procedure under which the Supreme Court has power to examine the decisions of inferior courts and to declare such decisions invalid or to amend them as the court may deem necessary, v, as heard in the Supreme Court before Mr Justice Ostler yesterday. The case arose out of an industrial agreement which was made on May 20, 1933, and the plaintiffs asked that this agreement should be quashed and declared invalid. Plaintiffs alleged that the agreement was the agreement of the assessors and not of the parties to the dispute, that the Council of Conciliation was not validly constituted in accordance with the act, and that the industrial dispute was not properly constituted. Plaintiffs were the Self Help Cooperative, Ltd., grocers, carrying on business at 339 Moorhouse avenue, and at other addresses in Christchurch, Kincaids, Ltd., Wardells, Ltd., F. A. Cook, Ltd., Tucks, Ltd., Star Stores, Ltd., and the New Zealand Farmers' Co-operative Association of Canterbury, Ltd. Defendants were Samuel Ritchie, Conciliation Commissioner; Herbert James Pankhurst, grocer's assistant; Samuel James Mcllroy, grocer's assistant; Thomas Henry Butterfleld, grocer's assistant; William James Green, union secretary; Charles James Forbes, grocer; John Stewart Chapman, manager; Frank Smith, grocer; Eric Gray, grocer; and Walter Parker, clerk of awards. All the plaintiffs were represented by Mr J. F. B. Stevenson, of Wellington, and Mr K. G. Archer appeared for the defendants, with the exception of Samuel Ritchie, Conciliation Commissioner, and Walter Parker, clerk of awards, who did not appear. Interpretation of Act. Mr Stevenson said the action was for a writ of certiorari quashing the industrial agreement made. The case was one of a series arising from the passing of the Industrial, Conciliation, and Arbitration Amendment Act, 1932, which had been interpreted to mean that an agreement was to be the agreement of the assessors. It was considered that if all the assessors agreed as to terms, an agreement could be made even if all the parties did not agree. That opinion was held by conciliation commisisoners and had been held to be correct by the Arbitration Court and Mr Justice Frazer. However, it was held by the Court of Apeal that an agreement should be agreed to by the parties to the dispute, and if any of the parties disagreed there could be no agreement, even if all the assessors were prepared to sign. The agreement itself, said Mr Stevenson, stated that the agreement had been arrived at by the assessors. It stated: "Whereby it has been agreed by and between the said assessors as ! follows ." The agreement of the assessors mattered nothing, he said, if the parties did not agree. His Honour said that if the assessors agreed and then other parties to the award declared they would not agree the legislation would become a farce. Mr Stevenson said that there were ways of getting over the difficulty. Similar cases had occurred in all the main centres. The large employers in certain industries had started, a dispute and no agreement had been reached. The next step was that certain smaller employers had, as applicants, created a dispute with the union. The ruling under the act was that the applicant could appoint four assessors and the union could appoint four assessors. The large employers were then joined with the union of workers and were not allowed to appoint respondent assessors. Therefore they were haled before the Conciliation Council upon which they did not have an assessor to vote or dispute. It was considered to be the law that the assessors could agree, and the award was made,. That view had been held to be wrong by the Court of Appeal. Counsel's Submissions. He submitted: (1) That the terms of settlement were the agreement of the assessors and not the parties. (2) , Plaintiffs never agreed to the settlement, and were therefore not bound. (3) The council was not validly con- j stituted, as the plaintiffs were given no voice in the appointment of asses- j sors; and (4) that section 108 of the act of 1932 had not been complied with by the union. Section 108, he said, provided that an industrial dispute could not be referred to the council until a secret ballot was held by the union. "Does not that mean that a union cannot start a dispute until a majority is secured by secret ballot?" his Honour asked. "If the union is cited to appear, as in this case, is a secret ballot required?" Mr Stevenson said that he would put his fourth contention: That no industrial dispute was ever properly constituted between the applicant employers and the union, as the proposals had never been- considered by the union. Section 108 clearly did not apply if the union were cited to appear before the court," his Honor said. Mr Stevenson: Yes, sir, I agree. When that matter was put mit was on the assumption that the union had taken the matter to the council. His Honor: You abandon your fourth contention? Mr Stevenson: Yes, I am bound to do so. Defendants' Position. It had to be admitted that there were two groups of grocers in Canterbury, and that there was some disagreement between them, Mr Archer said. The award had been made by a large section of the grocers, and plaintiffs represented a small section. Although a dispute might be created by a section only of the employers, the award agreed upon should be binding on all of the employers concerned in the industry. Under the act one employer could start a dispute. It was obvious, he said, that the defendants believed they were acting according to the act, and when they were in doubt they had aoplied to the Arbitration Court, and had been supported by the ruling of Mr Justice Frazer. Mr Archer contended that the plaintiffs had been outside the dispute when the council was formed, and consequently had no grounds for complaint, because they were not represented. It would have been desirable to have had them represented, he said, but there was nothing in the act to allow of their being given representation. Plaintiffs had nominated assessors, but the commissioner had no power to appoint them as applicants' assessors, and because they could not be appointed as applicants' assessors they asked to be struck out. 'Counsel contended that all the parties on one side or the other were not likely to be represented in an industrial dispute, but those who did not come forward would have to be bound by those who did take action, and secured an agreement. The act stated that there must be an agreement by all the parties present, and actually all the parlies present were in agreement when the agreement was made. The agreement had not been made before plaintiffs' agent withdrew, and when ho withdrew he must have known that an agreement would be reached, and that, as he did not remain to oppose it, he would be bound by it. After further argument, counsel said that he submitted:—(l) That the plaintiffs claimed representation among the applicant's assessors. (2) That they were, nevertheless, prepared to submit proposals and to participate in the proceedings. (3) They were agreeable, if a settlement were not reached, to refer the whole matter to

the Court of Arbitration under section 7 (1) of the amending act of 1932. (4) All these offers were made without prejudice to their rights to attack the validity of the whole preceedings, and by "the whole proceedings" they must have meant the constitution and carrying on of the proceedings, and not the agreement which was- the result of the proceedings. Counsel further submitted: (1) That councils of conciliation were entitled to ignore parties who were not present at the proceedings. (2) In order for a dissenting party to oppose the decisions arrived at it was necessary for him to be, (a) at the proceedings, (b) to remain throughout the hearing, and make his dissent clear, or (c) to withdraw after having declared that he refused unequivocably to agree to any agreement whatever. He submitted that the council had a definite duty at law to bring the parties to an agreement, and that it had a right to assume after plaintiffs' agent had withdrawn that the proposals put forward by him were for the purposes of bargaining, and that plaintiffs expected them to be whittled away in the course of the proceedings. Counsel finally submitted: (1) That although this agreement is stated to be the agreement of, the assessors, in f"ct, it is the agreement of the parties present or represented before the enquiry at the crucial moment, namely, when the agreement was reached. (2) That whether or not the plaintiffs agreed specifically they were, nevertheless, bound because they failed to dissent specifically, and because they expected the validity of the agreement, and chose to rely upon their right to exemption. (3) That the council was validly constituted, i After hearing Mr Stevenson in reply, his Honor reserved his decision.