FORFEITED UNION PRIVILEGES

Dominion, Volume 11, Issue 22, 20 October 1917, Page 2

FORFEITED UNION PRIVILEGES

DEREGISTRATION OF STRIKERS IN

AUSTRALIA

STRANGELY DIVERGENT JUDGMENTS [Mv. Justice CUrlewis and Mi , . Justice Higgine recently delivered judgments on applications which tamo before them lor the cancellation of the registration of certain unions that had participated in the recent strike. Mr. Justice Curlowis granted the application in the Case- before! him; while M'i'i Justice Isaacs refused in His ease. Tho hitter's reasons, as 6et Mill in his judgment led to a question in the federal House as to the propriety of reviewing His Honour's appointment, and in the lourse of his reply Mr. Hughes, the Prime Minister, indicated that the dissented very strongly from the views expressed in that judgment. As instancing a. peculiar divergence of ■ views on a question of great topical moment, we publish hcreumler both the judgments,] Judge Curlmvisj in the course of his judgment on the application by the Sydney Ice Skating Kink and Cold Storage Co. and others for cancellation of tno registration of the Cold Storage Employees' Union of New South Wales, and of the preference clause, in the sward, said: "On August last. Galloway, the secretary of the unioii) in company with the members of the executive of another union, called on the general manager of the Fresh Food and ice Company, and informed him that all meat in cold storage had been declared 'black' by the Strike Defence Committee, and that the members of his union would refuse to handle it. On the same day,' Galloway rang up the manager of the Sydney lea Skating liink and made an announcement similar to that made to the manager of the Fresh Food and Ico Company. On August 31 Galloway called on the manager of tho Skating Jlink Company and told him that all the men in ilia "union were to be called rut. On September !l members of tho union were asked to handle rabbits for shipment, nnd they refused, stating that their in* slrnctione wero that they were'nut to handle rabbits in cold storage, as they had been declared black; the men-there* uipon ceased work. On September 4 Galloway informed tho manager of the Fresh Food and Ice: Company that the members of the -union would refuse to handle any rabbits in store, He further eaid that tho men had no right to handle rabbits, and that they had been culled out bv tho union. The men: at tue works'then ceased work. On September 11 Galloway informed the works manager at tho works of John Cooke nnd Company that the men could not go on ae the meat was black. In the case or tho Fresh Food and Ice Company, the material which the men refused to handle consisted partly ot meat required for the military camps and partly of rabbits required for a certain transport. In tho case of tho Skating Rink Company, part of tho material was urgently required for a transport, in the case of .lohn Cooke aud Company, the material consisted o£ meat, tho property of the Imperial Government, required ior war purposes. This Galloway;and his union knew. ... I do not intend to wasto time in expressing my opinion oi the action taken in stopping supplies for tho troops. Treason and baseness are such common attributes or a certain type of unionist in these tunes that 9110 lias ceased to feel surprised. '1 his union cannot boast that it was as traitorous or as base as the unions who refused to coal transports or man hospital ships, but it has the consolation ot knowing that it was as traitorous and base_ as it had the power to bo. 1 merely desiro to add one word about a statement made by Galloway, that he'was not ashamed of anything he had done. I -believe there are men in hie own union wito will bo ashamed, and I believo that m reiuov-. in" this union from the register; andcivinc an opportunity for tho lormatiou of a new union, whose members will be ashamed of. giving autivo assistance to tho German!?, nnd of shuffling and evasion Unit at times bordered closely on lieriurv, I am conferring a benefit unon thoso men. T direct that the regie ration of tho Cold-siorago and Ico Employees' Union of Now South Walw bo cancelled; I have alrenwdy directed tnnt the prefereuco clauao in the award be struck out."

THE WATERSIDE WORKERS' CASE JIB. JUSTICE HIOGINS'S VIEW. Mr. Justice Higgiue, in his reserved iud»iucnt on tho application of the Commonwealth Attorney-General for tho do ; registration of tho Waterside Workers Federation as an organisation under the Commonwealth Arbitration-Act, said:— The application is mude under tectum. 60 of tho Act. If I cancel the registration tho effect is not, as seems to have been supposed, to cancel tho award. Toe award was mado in favour ot the menibers of tho federation, and lUcy. are entitled to tho benefits of the award evon though tho federation should no longer appear on the Court's register, lo cancel- the registration is, therefore, a ■ very sli"ht and inadequate punishment 'for tho offence alleged, and it would to some extefct release the men from certain checks on their conduct which are at present operative. As far as tho cancellation is a punishment—if it is a punishment at all-it punishes tho innocent as well as tlie guilty-ihe men at ports at whipli ships have not been held up, as well as tho men at ports at which they have been held up. Mr. Starke argues that the effect of cancellation is to make _ the award unnenforce-able. In my opinion that is not the law, . . . Ally member oi an unregistered association can initiate a prosecution, and tho legal liability of the employer under tho award remains after deregietration. On this point.. _. . I offered to state a case for the opinion of tho Full High Court if the AttorneyGeneral wished it, but ho does not wish it. ■ It is certainly very hard to see what advantage the public will get . . . if mere cancellation of registration be ordered. What is wanted is more control on tho part of the Court. Deregistration means less control. . . . the failure of members of the federation to offer themselves for employment does not involve the members in any breach of contract, much less in any punishable offence. There can be no breach of contract where no contract is made. No man becomes a criminal by refusing to accept work, or by refusing to givo employment to men seeking work. ... In Victoria, whero there is no tribunal for disputes, a strike of this sort is not an offence. In New South AVales, where there is a tribunal for disputes, it is. an offence. • . < What is the duty of the Court? . . . I think I am empowered to deregister an organisation. ... if it shows that it is unworthy of suck privileges as registration gives, nnd if thereby the country can better get tho necessary business of tho country done. . . . But tho discretion given to the Court ought to ba exercised with great care, with a view to industrial peace, and if tho public would gain more by the Court keeping such control of tho association as registration gives, the order for cancellation should not be made. ... I have shown already Unit deregistration would not free the employers of the obligations as to wages and conditions imposed by the award, and that deregistration would' free the federation and its property of liability for penalties for strikes. Moreover the association could no longer sue for lines for breach Of rules and the registrar could not claim the usual returns as to members, accounts, and rules. If deregietration be ordered it must bo an absolute derogistration as to nil branches and all tho members in tho 40 or 50 porte of Australia. There is no half-way house. Is it wise to deregister? Is it just? If with registration the orderly conduct of the industry has not yet been secured the remedy would seem to lie in improving the rules and in increasing the powers of tho central committee of management. Frequently in the affairs of this very federation I have been ennbled bv the fact of registration to. aid iho employers in securing the handling Of cargoes and the carrying on of business. The committee of management, the governing body, has not offended pgainst the act, it has not ordered its

members "to refuse to offer or accept employment." So long aa the registration remains tho federation will be liable to a penalty if it should so order; but if registration be cancelled the federation will not bo liable. ... In this very case tho influence of the committee of management iias been used in favour of resumption of work in the branches concerned, and it is owing to tho persuasion of tho committee that tho members have already resumed work at Burnie, Devonport, and Port Pirie. . . . It ifi not clear that the committee of management are empowered by the rules to do anything more. Thuro is no power to expel members, even if the expulsion of hundreds of thousands of members wero desirable. ... It is hard to see why' tho court should deprive iteelf of.eucli hold as it has on the men, though that hold i"s not yet adequate for all purposes. . : . Under section. 59 tho registrar has full power to register any new union, even if he finds that the members might conveniently belong to- the present union, Und I must assume that tho . registrar will exercise his discretion wisely. . . - Tho fact that the committee of management Of the federation has not been altogether successful is not a eumcient ground for destroying the organisation. If it were sufficient, the same reasoning would apply in favour of destroying Parliament for not being successful in preserving absolutely peace, order,_ and good government, and in favour ot abolishing policemen because they do not prevent all breaches of the peace. I still hold tho opinion I expressed in .1014, ffhen the Attorney-General himself appeared before me as president ot ttie association, that the rules should be stiffened so as to confer more powers on tho committee of management, and so as to bring tho branches more under centra! control. . . - Nevertheless, 1 am not disposed to throw away the ga™ which have been secured by registration for the more reason that all the game for which I hoped have not yet been secured in relation to the proper organisation of this huge association ot tlie scattered wharf labourers ot Australia. I look forward to more, not to less, organisation for the securing of order; and even if dercgistration had also the effect of destroying the award, it would lie n. reckless, hysterical, fatuous step to deregister. Where punishment is liecewary it would be much better to take iwj> expressly the. benefits of the award rather than to deregister. . . • order for cancellation would also. Uβ grotesquely unjust, for so far as it :s a punishment it would punish tlie | branches whoso conduct is not cnailenged. ... As Mr. Bryant has asked, Why should a. whole regiment be destroyed if some of the men niutinj. Punishment must discriminate beU-.en tho innocent and the guilty. It. w; not either wiso or just to make the oid<.r S °Bu h t!'it will be asked, has the country J no remedy for tho etoppogo of its necessary business by the men. ... -- 10 ' 1 ' the point ot view of the public ado* representing the public, tho men's conduct is intolerable. \\ nat is to be done? . . ■ Mr. Stark* Ivrgca that these men are guilty of a strike. If he is right, why Jβ there no application, for penalties against α-njot I tne members guilty? .• • a n^ om J mnv in addition, deprive persons ot membership. ... Besides, the Court can vary the award so as to depine a man or a branch of the benefit theieqr, and hw actually made such- an order in the cose of this organisation. . . .lne i leaT t of tho trouble is found in tho oldfashioned sentiment which leads men— especially transport workers—to refuse to handle goods coming from an employer who is 'fighting other unionists, especially if ho carries on tho operation with non-union labour. No tribunal, however constituted, can arbitrate as to such a. refusal. What is thero to arpw about.' It is a matter for tho appropriate Legislature to consider. ... • ' Meiimvhilo I hold that the applicant has unfortunately, under the strain ot his great responsibility, selected the wrong remedy, and 1 cannot apply tho fit remedy of taking away privileges given by the award unless on an application specifically pointed to that end. ... It may bo that tho employers bound by tho award, as noil as the Attorney-General, aro -reluctant to apply for such a variation as would take away from tho men the protection of the minimum wage,-the protection us to weights to bo carried, and other human conditions. But this is not the time for such scruples. If the members of tho federation will not help the country at this crisis, the country cannot bo expected to extend to them the help of awards. Such men arn weakening tho forces ot the country in its supreme rirdcal, disclaiming their privileges and their duties as members of tho community,, and are 111 akin? themselves, as it, were, outlaw*. ■ I rcfußO the present applications, but my refusal is without prejudice. (0 any other application that may bo brought on better materials.