RAILWAY DRIVERS’ UNION

Dominion, Volume 23, Issue 54, 27 November 1929, Page 5

RAILWAY DRIVERS’ UNION

CONSTITUTION OF EXECUTIVE COUNCIL

DISPUTE VENTILATED IN COURT

JUDGMENT OF CHIEF JUSTICE

The judgment of the Chief Justice (Holl. AL. Myers) was given in the Supreme Court yesterday in regard to a recent action concerning the eligibility to continue in office of four members of the executive council of the New Zealand Loconlotive Engineers’, Firemen's, and Cleaners’ Association.

The. plaintiffs• in the action were Robert Carroll, of Auckland, Archibald W. Mack,, of Taihape, John James Fennell. of Wellington, and William Pullur, of Dunedin. The defendants were the New Zealand Locomotive Engineers’, Firemen’s and Cleaners’ Association and Frederick J. Lewin, of Palmerston North, engine. driver, and William McArley, of Wellington, secretary. At the hearing of the 'case plaintiffs, all of whom, are engine drivers, were represented by Mr. P, 11. Cooke, with him Mr. R. Christie. The defendant association and AfeArley were represented by Mr. I’. S. K. Macassey. and Lewin by Mr. C. A. L. Treadwell. "At an election conducted by ballot in the month of March, 1929,” stated the judgment, “plaintiffs and one J. Veitch were elected the members of the executive council of defendant association, which is a- trade union registered under the Trade Unions Act, 1908. The defendants Lewin and McArley were respectively president and general secretary of the assdeiation and are members ex.officio of the executive council. The supreme government of the association is, by No. 46 of the rules of the association, vested in a Grand Council, but its general business is conducted by the Executive Council, whose duty it is under rule 53 to sec that the rules are duly observed. The same rule provides that ‘all disputes as to the interpretation of the rules shall be referred to the executive council, whose decision shall be final and binding unless and until the same shall have been reversed by the Grand Council, to whom the matter may be referred by either party or by the execu five council. Eligibility Disputed., “At a meeting'of the executive council held nt Wellington May 22, 1929, defendant Lewin refused to allow plaintiff Carroll to perform the duties of a member of that council upon the ground that he was not eligible to be elected a member of the council. The ground taken by Mr. Lewin- for this attitude will be' referred to later. Carroll refused to withdraw from the meeting, contending that he had been duly .elected and was eligible to act. Lewin thereupon adjourned. the meeting until the following day, when all the plaintiffs again attended. Lewin again requested Carroll to withdraw, which he refused to do. Thereupon Lewin stated that if the meeting proceeded Carroll would not be permitted to take any part therein. ' Carroll then withdrew from the meeting and was followed by the other plaintiffs. Upon the following days, the 23rd and 24th. all the parties again attended and substantially the same procedure was gone through. “In the result the executive, council could not function, because in the absence of all the plaintiffs it was left without n quorum. On May 25 and 27 it is contended by defendants'that the executive council was to meet again ; but none of the plaintiffs attended, and they say that they received no notice of. or any request or invitation to attend, any meeting subsequent to the 24th. The general secretary thereafter, on July 4. by direction of the president, issued a circular to the branches of the association calling for nominations to fill the 'vacancies caused by the alleged ineligibility of Carroll to sit as an executive councillor, and the absence of the other plaintiffs from the meetings held on May 25 and-27, "and. in accordance with rule 54 agd amendments.” Writ of Injunction Sought. • “The present action was brought by the plaintiffs' for a writ of injunction-to restrain defendants, and each of them from proceeding with calling for nominations of persons to be elected members of the executive council, in , the place and stead of plaintiffs, and from proceeding to hold any election of persons as such members ■ of the executive council, and' from doing or omitting any act for the purpose of preventing or attempting to prevent plaintiffs from acting as members of the executive council. An interim injunction was granted upon application in that behalf, and defendants now move that such interim injunction be dissolved. Plaintiffs, on their part, move for a perpetual injunction. Case . for Carroll. ■'Carroll's case stands upon a different basis from that.of the other plaintiffs.’ continued Mis Honour. “The ease of the other plaintiffs is the simpler: and itis convenient to dealt with it first. The material portion of rule 51 as amended provides that any member of the executive council absent without cause from two consecutive meetings shall be liable to forfeit his seat. It is contended on behalf of the defendants that the meetings of May. 22. 23. 24. 25. and 27 were all separate meetings, and that as the plaintiffs other than Carroll werejibsent without cause ou May 25, and 2i, they come within the provisions of rule 04. Mr. Cooke contends that there was only one meeting convened by the requisite notice for May 22, and that such meeting was adjourned from day to day, and

constituted only one meeting, and no several meetings. This, however, m> y well be a question of interpretation ot the rules, and there is a domestic ioru constituted by rule 53 to determine questions of interpretation. In any event, is not necessary for me to decide as l> - tween the conflicting submissions of tnc parties, nor is it necessary to determine the question of fact as to whether or not the plaintiffs other than Carroll rccenet notice of the meetings (if, they were separate meetings) of May 25 and 2i. •‘•‘l ■; is quite a simple ground upon wind' 1 think that the claim of plaintiffs, other than Carroll, may be determined. D'e president seems to have assumed that absence without cause from two consecutive meetings by a-member of the council, ipso facto, forfeited that member's seat, that is not what the rule says. What the rule says is that any member of the executive council absent without cause from two consecutive meetings shall be liable to forfeit his seat. I fail to sec that the president is entitled to arrogate to himself the right to declare and enforce a forfeiture tinder rule 54. The forfeiture must in my opinion be declar'd and enforced by competent authority under the rules, and I cannot see that that competent authority is the president.

“Eyesight Members.” “The difficulty in regard to Carroll arises under rule 77, which is as follows: 'Any member being obliged to leave the footplate on account of failing vision, deafness, or other infirmity, but remaining in tlie service, - may continue a member of the association, retaining all a member's rights or privileges, on payment of five shillings per annum, but he shall be ineligible to hold any office.’ "The members who come within that rule by reason of failing vision arc colloquially referred to in the parlance of the association as ‘eyesight members.’ It appears that Carroll, by reason of failing vision, is no longer permitted to drive an engine from station to station, or into the station yard, but it is part of his work to perform certain duties of an enginedriver,' including the preparation of engines for the road and putting them away ; and, in.doing so. the moving of such engines from place to place in the locomotive yards. He is still classified as a firstgrade engine-driver, and is paid as such. Rule ,77 seems to have had a rather curious history, and to have been a bone of contention for sonic years past. Ihe question is whether it can properly be said that Carroll and other persons -in the same position have been obliged .to leave the footplate.' On this question there seems to be a difference of opinion amongst members of the association. I do not consider, however, that it, is for the Court'in the present proceedings to interpret the rule.”

President's Action,

Having dealt at length with the historv of the proceedings taken in connection with rule 77, His Honour continued, "the position therefore appears to me' to be either that the executive council and the grand council 1925, and probably also in 1928. have interpreted rule 77 in favour of the eyesight members, or else that the position is so confused as to make it impossible to say what binding interpretation if any lias by competent authority been placed upon the rule. In any case, I do not think it was constitutional.tor the president arbitrarily to say that Carroll was ineligible, and. without any reference to the executive council itself..or to the Grand Council, or the association, ■to declare Carroll’s seat vacated, and call for nominations to fill the vacancy. It appears from Pennell's affidavit of September 12 that plaintiffs asked Mr. Lewin to rule expressly that Carroll was ineligible to hold office and take part in the proceedings in order that steps could be taken under rule 82 (16) to disagree with such ruling, but that Mr. Lewin declined to do so.

Defendants’ Motion Dismissed,

“It appears also that plaintiffs insisted that Carroll should be permitted to function as an executive councillor until the constitutional procedure for overcoming the difficulty should have been taken by the executive counsel, and that Air. Lewin refused this also. In all the circumstances of the case, Mr. Carroll as well as the other plaintiffs in my opinion is entitled to the relief prayed. The motions of the defendants to dissolve the injunction are dismissed, and the interim injunction is made perpetual, with costs fifty guineas and disbursements. This does not necessarily mean that Mr. Carroll is to remain a member of the executive council during the whole of the remainder of his term. It simply means that if his eligibility as a member of the council is disputed, the proper constitutional method must be adopted to have the question determined. It is exceedingly unfortunate that the friction disclosed by these proceedings should exist in the conduct of the association s business. ' “I see no reason why, if the parties are prepared to meet in a reasonable spirit, a satisfactory modus vivendi should not be arrived at. The plaintiffs intimated through their counsel at the hearing that, if they were successful in these proceedings, they would be prepared to meet the other disputants and endeavour to come to some reasonable arrangement. “If this is not done,” concluded His Honour, “the friction may easily end m the disruption of the association. Perhaps it is not out of place to add that the association's rules are in various respcc' ts _ obviously crude and defective, and I think that the association would be well advised to take into consideration the question ol their comprehensive revision.”