‘Draconian’ effect of new union act worries lawyers

Press, 21 January 1984, Page 7

‘Draconian’ effect of new union act worries lawyers

Some provisions in the Industrial Law Reform Act, which will come into force on February 1, are potentially Draconian in their effect and contrary to traditional legal precepts, says the public issues committee of the Canterbury District Law Society in a statement.

The committee says that the act alters the custom in civil actions where proof is required by the claimant only on the balance of probabilities.

“It provides that an employer against whom an action is brought for contravening the section relating to unlawful discrimination in respect of union membership shall have the burden of proving that he or she has not contravened the law.”

The act provides for a penalty of up to $5OO for each breach. Similar difficulties arose in Court actions arising from strikes or lock-outs on union membership. The principle that defendants had to provide their innocence was “very undesirable.”

“Reversing the usual burden of proof is something that lawyers historically, and we believe with good reason, have opposed. It is a fundamental part of our law

that a person is presumed to be innocent until proven guilty. “The provisions in the act providing for penalties for contraventions of its provisions are, in effect, substantially the same as fines for the commission of offences,” says the committee. “A reversed onus may force a person to have to give evidence and be subjected to interrogation on what is possibly only a flimsy or even non-existent case against him or her. It is open to abuse in that it may allow for unnecessary victimisation of quite innocent parties. If the accuser cannot prove his case then the case should not be brought,” says the committee.

If an employer refused to employ or dismissed somebody, that person could take the employer to Court alleging that the employer was in breach of the act for not employing him because of his membership or nonmembership of a union. The employer then had to prove that this was not the case.

“Furthermore, an employer or workers may be liable to penalties of up to $5OOO in circumstances where the party making the allegations has to prove the case only on the balance of

probabilities and not beyond a reasonable doubt, to the extent that he or she does have to prove the case at all. Again, this situation is considered to be unsatisfactory,” says the committee. The committee also says it is not happy with the use of the words “undue influence” in relation to union membership. While the act attempted to define what constituted “undue influence” it was likely to be extremely difficult if not impossible for an Arbitration Court Judge to decide what was meant by the words in any given case. “No statutory guidelines are given as to when influence becomes ‘undue’ or when it does not. One only has to consider some of the possible circumstances in order to realise just what a formidable task that application of this section is likely to be,” says the committee.

The committee is independent and its views do not and cannot represent the views of the Canterbury District Law Society. The committee members are Messrs A. J. Forbes (convenor), C. A. McVeigh, K. R. Ayres, A. A. Couch, D. J. R. Holderness, A. C. Hughes-Johnson, R. G. McElrea, Ms F. Bolwell, and Professor G. Orchard.