HARBOUR AWARD

Dominion, Volume 37, Issue 4, 30 September 1943, Page 6

HARBOUR AWARD

Employers Claim Ambiguity WRIT TO QUASH SOUGHT

Proceedings with the object of quashing the New Zealand harbour boards employees - award, brought by the iNew Zealajid Harbour Boards’ .Industrial union of Employers, were taken before the Chief .lustice (Sir Michael Myers) in the Supreme Court, Wellington, yesterday. Decision was reserved; Mr. J. F. B. Stevenson appeared for plaintiffs, the Solicitor-General, Mr. H. 1-1. Cornish. K.C.. for the members of the Court of Arbitration, and Mr. M. J. Gresson, Christchurch, for the New Zealand Harbour Boards’ Employees Union. Mr. Gresson placed before the Court a statement of facts, in which it was set out taht in 1937 a New Zealand harbour boards’ employees’ award was made containing provision for the payment of double pay for holidays m addition to wages. Disputes in regard to Sunday and holiday -pay for shift workers and boatmen were referred to the industrial magistrate, who ruled that the workers were not entitled to extra pay on Sundays and holidays. Appeal was taken from this decision to the Court of Arbitration. and while the hearing of the appeal, was pending a new award -was made, which contained a clause identical with the disputed clause of the old award. The new award came into force in March. 1941. and in July. 19-11. the Court ol Arbitration reversed the magistrate s decision. The employers refused to pay holiday pay in accordance with the judgment. and in September, 1942, were convicted. An appeal was dismissed by the Court of Arbitration. Further convictions were recorded in April and August, 1.143 An appeal against, the August conviction was lodged, which should have come on for hearing in the Court of Arbitration at Christchurch this month, but the employers commenced these proceedings and; the* appeal was adjourned. Mr. Stevenson said he did not accept this statement of facts. Employers’ Case.

Mr. Stevenson said the . employers claimed writs quashing the 1941 award and prohibiting - the Court of Arbitration hearing further appeals and an injunction preventing the Court from enforcing the award. The main ground on which they were claimed and on which it was stated the award was not valid in law was that the award did not comply with mandatory provisions of the Industrial Conciliation and Arbitration Act, 1935, that an award must express in the best manner the Court’s decisions, avoiding all technicalities,' and must state, in clear terms what was or was not to be done by the parties. If the Court made such ah award that it led to differences of opinion even among lawyers it was not a good and valid award, particularly when the ambiguity was known at the time of the making of the award, appeals were pending and the clause that contained the ambiguity was put back. “The idea underlying this Act is that the worker shall he able, to read the award.” said Mr. Stevenson. “It shall not be in technical language but express the decisions of the Court, the idea being that the worker shall be able to read the award and understand what it means.” His Honour: Only the worker? Mr. Stevenson: And the employer,, and perhaps the general public. Answering the Bench, counsel said he did not go so far as to contend that any award provision that was doubtful and required interpretation was bad. If a clause was reasonably clear, different views about it might be held. Neither did he accept the suggestion that language must be intractable for the provision to be invalid, but clauses 5 and 6 of the award could not be given a meaning, if read with the schedule of the award, by any common-sense person or a lawyer. If in one clause the award said Sunday was a holiday and in the next clause that it was not a holiday, then it said that overtime on Sunday must be paid for at double rates and then assumed that that time was not overtime, the award became such a muddle that one could not reach any decision on it. The Act’s object was to secure peace, but this award had led to innumerable disputes. His Honour: It is a pity that in 1941 more trouble -was not taken with clause u. particularly in view of the decision of the industrial -magistrate. _ Mr. Stevenson quoted the judge of the Court of Arbitration, who had made the award retaining the disputed clause, Mr. Justice Tyndall, as saying in a judgment that the award presented a number' of anomalies and was difficult to interpret. Had the law not been amended this year the question would have originated in a claim in the Magistrates’ Court for wages and the procedure that had been adopted would not have been necessary. The dispute had been going on.since the middle of 1937, and employers had continually invited the union and workers to sue them.

Air. Gresson: They were better advised. Claims for £30.000 bad’ actually been put'in, though claims could be made only a year 'back, said Air. Stevenson. “Scissors and Paste” Award. Counsel submitted also that the Court of Arbitration had put back into the award clause 5. the disputed clause, without having decided what it meant, whereas the Act said the award must contain the Court’s decisions. It was a “scissors and paste” award, schedules having been drawn up in various ports of the- Dominion and attached to the award without, being collated; and the Court had placed its seal on what was put before it. wherea's its duty was to examine schedules and collate them and put them into proper language.

Air. Gresson said an answer to the submission that the clause could not be interpreted was that the Court had interpreted it.

His Honour interposed that that was not necessarily so. It would not -be an interpretation if it brought in something neiw.

Air. Gresson pointed out that if an employer chose he could apply to the Court to have an ambiguous and defective award amended. The standards which Air. 'Stevenson had applied to the language of the award could not be applied to anything in life, but grievances could 1 ■_ remedied by the proper tribunal, he said. Air. Gresson discussed also the Supreme Court’s jurisdiction to issue the writs.

_ Air. Cornish pointed out that Air. Justice Tyndall’s words quoted by Air. , tevenson were spoken in reference to the 193< award in a judgment settling the doubts. He believed the Court replaced the old clause in 1941 for fear of prejudging the pending appeal. If Mr. Stevenson was right in his submission that tiie award was invalid because its language was intractable ; any award could be upset, and an ingenious .person could think of ingenious tilings.