INVALID

Evening Post, Volume CIV, Issue 150, 22 December 1922, Page 8

INVALID

tEVY UPON WATERSIDERS

'ACTIONS AGAINST UNION

METHODS

THE COURT'S DECISION,

'Judgment was given by his Honour Mr.' Justice Hosking at the Supreme Court this morning, in the five actions brought against the Wellington Water-, side Workers'' Union as a result of the union striking a levy of £1 per year upou its members. The plaintiffs were Robert C4ould, William Charles M'Gee, Michael Leddy, John Tilley,/and Charles Patrifk Kavahagh.■'. ■ -. '

' Reviewing the case, his Honour said that each plaintiff claimed that he was a member of the defendant union, and that while he was a member his namo ,\vas wrongfully removed by the union from the register of members, and. that he was wrongfully excluded from the union, and (shortly putting it) was prevented from participating in the benefit of the union's industrial agreement^ and from obtaining work* as a . watersider. Bach plaintiff claimed a writ of mandamus commanding the union' to recognise him. as as a member—an injunction restraining tho union from representing that he was not a member thereof, and the sum of £500 as damages. At the .conclusiSn of the hearing-the jury was asked to (md in each case what damagesthe plaintiff should be' awarded in the event of his being entitled to . recover any, and it was agreed that all.other questions should be left to -the Judge with power to draw inferences. Apart from a question of law whether the. action for damages was maintainable, ? tho ■ case turned upon the validity of'""a fighting or defence fund" levy which the union purport edto make,-and of the steps sub--1 sequently taken iri regard to the plaintiffs' membership. In December, 1920, the annual conference of the Waterside Workers' Federation decided that an industrial.;'fund of £1: per' member per annum'should be inaugurated. It was not competent, said his Honour, for the federation to make any levy direct upon th| members of the individual unions of which the federation was formed, and effect could be given to the decision only by each union itself imposing the levy upon its .own. members. Moreover, at the'time of the conference the federation had no rule authorising it to make such a levy/ upon the unions. Mr. Roberts, secretary- 1 of the federation had said he. waSj aware of the fact that a rule would be:required to authorise the federation to'make the levy, and explained that the levy was to be regarded as a voluntary one until the rule justifying .it should be registered. The resolution adopting the recommendation was couched in terms implying no consciousness of; infirmity, and afforded no indication that the levy was to be regarded as. voluntary. Many members of tho unions refused to regard g the levy as binding, the Auckland and Onehunga unions in particular declining to endorse it; Whether it was-deemed voluntary or otherwise, largo numbers of members ot the various unions had paid before tha conference of 1921.

. . LEVY UNENFORCEABLE. After tracing the further history of the taatter, his Honour proceeded :— "Nbw I feel no doubt that the £h .levy purporting to have been made' by the union on its members was invalid,, and at no time became legally enforceable, inasmuch as it was not made'in accordance with the rules of the union.

... in contempt of these careful provisions—common in substance with „ regulations by which most, if not all, .' other societies, whether corporate or incorporate, govern themselves so ■ that business shall not be sprung upon meetings or transacted) surreptitiously—no sufficient notice was given of the meet-<: hlg by which, it .is said the levy -was 1 struck." The advertisement intimating that a meeting was to be called gave less than twenty-four hours' notice, and did not disclose that such a thing as a levy was to be proposed. He .regarded the omission as indicating that a levy was to ibe' proposed as fatal to the validity of the meeting as a special meeting and to its competence to make the levy. . Nojtice of the-business to be transacted was to enable a member to determine in his vwn interest whether he would attend 01 stay away. It was urged that Gould and the others, by attending the meeting, waived any objection to its "validity. That might be a sound , point if the ' meeting had been called for specific pur-' poses, and the notice was too short or was otherwise irregular, but in the present case that was not the position. The. meeting was^ convened as un ordinary '■ meeting- and -its business was announced to' be "executive's recommendationsgeneral." He could not think that a person attending such a meeting so conven- • ed was > precluded from afterwards objecting that in adition to the business announced/ the meeting preceded to .transact other business, which could only ■be transacted by a'special meeting. It | •was' also said that the resolution imposing 1 the. levy was confirmed :by subsequent meetings, but all tffat these subsequent meetings really indicated was^ that a> majority of the members was willing to abide by a levy whether its was valid or not and refused to allow it to be questioned. OBJECT OF THE FUND. . "Notwithstanding the' evidence of Mr. Roberts and Mr. Glover in explanation," his. Honour continued, "the minutes of the conference proceedings on the subjects of . the ""Fighting Fund' are, I j think, the more eloquent, and leave on my mind the impression that the fund might, if it were thought fit, bo used in aid. of strikes as well as other purposes. I'do not, however, think it necessary for the purposes of this case to determine the precise object or objects of 'the fund, or whether it is illegal. I think, however, tha6 the levy was ultra vires the federation at the time .it was made. At the hearing this was really / not denied.. The resolution of the conference wan skilfully worded, and rather, avoids the language of direct imposition, apparently leaving it to the unions to make a levy on their respective' mem-. bers and hand the proceeds to the federation. If tho federation had the power to reqmre the money from the unions, no doubt. it would have been intra .vies • the unions in turd to make tho levy on their members in order to comply with the requisition. As, however, the federation did not possess this power in 1920, the levy by any union on its mem-. , bera could only be justified if within, the purposes,of tho union. Whether it ,was so or not depends upon whether those purposes authorised the raising of a fund which might be used in aid of strikes. Whether it was ultra vires the . union or not was not much argued, and ' I think vit unnecessary to decide that question in these proceedings. ... A further objection to the validity of ii\e levy is that it was. contrary to the terms of the industrial agreement of the 30th April, 1920, Jby which the federation and the unions were bound, and this objection I consider well-founded under "clause 43 (the preference clause). MEMBERSHIP OF PLAINTIFFS. ■"Now,, as I have held that the 20s levy frras invalid, it follows that the striking jpff of the 'several plaintiffs, from , thsL

register of members was, so far.as it proceeded upon the ground that they were in. arrear with the levy, wrongful and inoperative. The striking off was ! admittedly done qn the 2nd May, 1922, following upon the resolution of ' the stop-work meeting held on that date. I find as facts that consequent upon this the employers' representatives were informed that the plaintiffs were in fact not members, and were so informed in order that the plaintiffs might be excluded from preference of employment as watersiders, and that the piaintiffs were excluded in consequence. /The employers, supposing that the objection to the men was that they were unnnancial because of non-payment of the levy inquestion, disputed the right of the union to render the men unfinancial for that reason, contendjng that in face of the award and during its continuance such a levy cou.d not be imposed. This objection, however, was met by' the answer that the men had actually ceased to be members through being struck''off. But in addition to tho nonpayment of the levy it is contended by the union that none of the plaintiffs had paid his lawful subscription and levies amounting to 245, and that on that ground he was justifiably struck off. Further that if that was not the case ,he was unnnancial at the time the Union interposed, to prevent his obtaining employment as a unionist, and therefore that its. interposition was justifiable. It is necessary to examine these points. . . . The evidence satisfies me that all the plaintiffs, except Leddy, tendered- their respective subscriptions and lawful levies before the last day of April. It follows from the construction I have placed on. the rules that, the plaintiffs, other than Leddy, were at no time 'financial' and could not on the ground of being 'unfinancial'• have been deprived of the chance of employment under the preference clause of the industrial agreement. It also follows that at the time the plaintiffs' names were struck off none of them was in arrear for four months in respect of his dues and that the'striking off was in each case Wrongful. „ ■'■', QUESTION OF DAMAGES. It was argued by the defendants that the -plaintifts were hot entitled to recover damages, whatever, rights they might have to a. mandamus. or injunction. After referring to various legal precedents, his Honour expressed . the opinion that th^ union was responsible in damages for the acts complained of, and that each plaintiff, with the exception, possibly, of Leddy, was entitled to the writs of mandamus and injunction asked, subject to the payment of lawful dues.

Judgment was pronounced for each plaintiff, but Leddy for the writ of mandamus and injunction, but the command of the writ and of the. injunction is not 'to be enforcable in any case unless the plaintiff pays to the union on or before 10th January, 1923, his subscription and other lawful fees in respect of the year 1922. Judgment was also given for each plaintiff, but Leddy for the damages found by the jury, £208, together with' costs.

In view of the application of each case for a new trial, execution is to be stayed, provided the defendant on or before 10th January nest pays into Court the sum of £100. Leddy's case, both' as to relief and costs,* is deferred for further consideration.

At the hearing, Mr. W. Perry and Mr. G. G. Watson appeared for the plaintiffs, and Sir John Findlay, K.C., with him, M£ H. F. Johnstone, for the defendant union. ■ ' . '