LAW REPORTS.

Dominion, Volume 2, Issue 567, 23 July 1909, Page 2

LAW REPORTS.

COURT OP APPEAL. THE LONC ARM OF ARBITRATION. \D.OES IT REACH 'LOCAL BODIES P :An important point in tho disputo botwoon the Otago Paintere' Industrial Union of Employers and the Dunodin Painters' Industrial Union of Workers has boon referred to tlie Court of Apponl for sottleniont. Tlio question is wliothcr there is jurisdiction to hind a municipal corporation or a harbour .board.by an award iwulo under tho Industrial Conciliation and Arbitration Acts. ..Tlio caso was mentioned last Friday; and argument was heard yesterday boforo tho lull Court —their Honours. Justicoa Williams (Acting-Chief Jnstie<o; Donnistoii, Edwards, Cooper, and Chapman. Tho caso ns Blnled for tho Court wa» that on October 20. 1007, tho Arbitration Court made.an award in .tho! dispute*. On JtinolG, 1909, tho- Painters' Union made n.n npplicn-; tion to have the Dunodin City Corporation and the Otago' Harbour Botwd ' added as parties to tho award, under (section 01 of tlio Industrial Conciliation and' Arbitration Act, 1908. It was' contended on bolialf of,- tho Dunodin City Corporation and tho' Harbour Board that there was no. jurisdiction to add them as parties, for tho reason that municipal corporations and harbour, boards wore not subject'-to - tho provisions of tho Industrial, Conciliation and Arbitration Acts, Ilia Honour Mr. Justice Sim reserved his decision on tho application, in order to enable \a caso to bo stated for tho opinion of the Court of Appeal. .* •*.* ■' Mr. Weston (instructed by, tho Now Zealand Harbour Board' Association) appeared for the Otago Harbour.Board, and Mr.' W. C. MacGregor, of Dunedin,' for tho Diinodin City Corporation. The Painters' Union of Workers wroto stating that, they would,not bo represented boforo, tho. Court. ' Mr. D" W. Findlay- said that Mr. Justice Sim had mado tho suggestion, when tho dispute i camo. boforo tho Arbitration Court; that'tho executive of: the Trades and Labour Council (tho central body in Wellington) should take'up tho eas9 for the workers. Following up that sugestion; ho had boon instructed to ask permission to appear. ' , In opening, Mr. Findlay said tliat tho Court would liavo to consider two points: (1) Do the provisions of tho Industrial Conciliation aiid ' Arbitration ••■ Acts 'embrace within their scope- local bodies? and :■-. (2; v/hethor or not. that is the. case, do tho Hnrtours Act, 1908, and 'tho Municipal Corporations Act exempt tho3o bodies /rom the operation of the lidustrial Conciliatjon and Arbitration Acts? It was a ,c9ntention that, oven if thoso, -bodies came within tho moaning of the-Acts, there were special provisions which took them out of the scope of the Acts. . "-'■•'. ■'.*.' ....' Mr.: MacGregor contended (1) that, municipal corporitions arp not expressly included within the class of persons.mentioned in tho Arbitration Act; (2) that v tlio employees of Buch corporations •had acquired, by virtue of their own acta,'; a special status 'distinct irom the; general-status acquired by workers uhder: the-- Arbitration .Acts; , and (3) that employees- of' : such .corporations wero eniplbyed' otherwise than- for-tie" direct or, inArbitratiou'A(its';..,(2) that the employees of, in other words',', that, it is only.where it was shown affirmatively that employees,of municipal corporations were employed for theitime' being for direct or indirect, pecuniary the miinicipal corporations liecojne .subject to havel awards' made against them. There-!, fore',.Section 71 .'.of tho• Amendment Act of 1908, notwithstanding its .proviso;/ expressly excluded ■ municipal corporations, from the scope of the Arbitration'.Court, .Surely one would bo doing violence"to, language in saying 'that : a local., authority .was: carrying oh an industry' r , ■..'■!.: '■. - ;,-; ■ ;,'y' ; ':■': .'.;;■'; \

'.Mr. Justice Edwards referred; to-tho t op-, eratibns;of. city corporations in connection with: : gasworks, tramways,7yelectric . lighting, I water supply, etc. "Were ..these not /industrial undertakings ?''''■"■■ *.-''..' . iMr.,-MacGregor: But it is not for gain. * -"That's just wliat. it is,", rpplied, Mr. Justice Cooper;. "Take for in;stance, 1 ' and look..at 'their*■; balance-sheets. ;They make-a.;boast -of-,'.the profits they are ;earning.'', A v.•'■- .;.;■• ■■■..■■.'■/..■:-:•., : ; iMr; MacGregor: The whole of the inhabitants ibtaefit u fronii"the'i corporation's' general I -undertakings'.'.'-. I';am; -tryiiig ■ to'* show ■ thatthere r is*'no possibility of :'proflt" in - the trlie iseh&e; of ! rth : 6*'^rm'.i l iii"' : ">>'. i ■:'■'■. s-.-iv * .. *..,.,.

. ■ Mri; Cooper remarked/-,that the reduction of fates' resulted in; gain to every ratepayer.:' '. ; /";,' v ; u •'■: >; .';■!,'-':'"■'" '■•'■

<,p&j6r.!y "■■:'■' '■':'\-^^:'"' : :- .-, „ Mr: • McGregor continued .„tnat Sectibn • 7i of tK, Municipal ..Corporations; Act providec that; all.officers and. servants' could be ap pointed aoid removed : by, tho cbrporation Tlib word "servants" included casual .labourers. It had been held that officers dismissed by, corporations could not, under, that section, :sue for v wrongful dismissal: ; . The Court"had never held that-that rule applied to servants,'but; be submitted'that it applied oqually ,to. servants and to; officers. This showed, that there' was a status imposed by Section; 70 upon officers and servants of corporations -.which was distinct from, and incon.sist'ent with, the status acquired by workers under thb'Arbitration Act. ".''■!'.'■

;.' Mr. Justice Dbnniston suggested that.;on ■this argument,' if, a-' ( flood/came, down -.from thft'hills' round Dunedin/ the; council could not employ men without first holding a special meeting. . ;,, ..,;'./. . ''-■■■■'.■■':' Mr. Justico Edwards referred ,to the bursting of the Waimii-o-mata. water. main, ;.which'! necessitated- tho : immediate engagement, of forty'''or fifty men. Surely the engineer had -4ih'd: power to • appoint men' with-; out a'resolution of the council? '.:'■'■■'':'

~ Mr v MacGregor:. That would; not' affect the right of .'peirsons employed! in an emergency to ' recover.for; tho;,'service's.',actually rendered. .''■. .■■■"'-

Miv Justice Doriniston suggested that.', officers engaged for administrative; purposes might 1 be distinctly classed. Mr; McGregor; The labourer. wfio'iß making', concrete slabs is just as much assisting' the' Execution of the Act as is a clerk in tho town clerk's,office." , ; "We do not talk of a domestic servant assisting in tho. administration of a house-, hold," replied Mr. Justico jDenniston. "In the Civil Service, youvwouT dsurely not include the charwoman?"

'' Mr. Justice; Cooper: In this present crisis of unemployment, you would have it that all these, men employed by the corpora'tion must he each one engaged by.special, resolution of the council.

. . Mr. .MacGregor: If they are assisting in tho execution of tho Act., ,

Mr..Justice Cooper: They are employed on road-making and • similar works.. , .'. ,'Mr. MacGregor: They may be illegally employed, for .all we kriow. ;''■ •. V " "Wo want to use a modicum of .common sense," remarked Mr. Justice Denniston.

"No doubt," replied-Mr. MacGregor. Mr.\ Weston said that aintfa for the decision of the Court was whether-the provisions of the general statute,- the Act- of 1908.. were inconsistent with tho provisions of the special-Acts dealing with, local bodies,, and, if so, whether tho provisions of tho general Act impliedly repealed those of the special Acts. A local body was not included in the definition 'of "employer." "Employer" inoluded a corporation,, which was a body incorporated either by letters patent from tho lving, by prescription, or under the authority of a- special Act. Even ;though, tho' dofinition: of "employer," when read strictly, might include a local body, tho point was, still open whether tho provisions of tho general Act, which were inconsistent with Hho provisions of a <prior special Act, impliedly ropoalod thosp provisions. " The Court reserved judgment, and-an'ad-journment was mado until Monday morning.