HANDLING CARGO

Evening Post, Volume CXXV, Issue 48, 26 February 1938, Page 10

HANDLING CARGO

AGREEMENTS CONFLICT

EMPLOYMENT OF SEAMEN

COURT'S DECISION

"Admittedly the difficulties arising herein are due primarily to the fact that last year identical employers arrived at conflicting agreements witn the waterside workers and the seamen respectively," states an opinion of tlw Arbitration Court on the Interpretation of the New Zealand Waterside Workers' Award, delivered by Mr. Justice O'Regan today, following an application by the inspector of awards. The matter was-brought before the Court 1 because seamen employed on tho Awahou were employed at work which the watersiders claimed should have been done by members of their union. The inspector asked if the seamen were entitled to drive winches and/or handle cargo on the ship while the remainder of the loading and unloading on the ship and wharf was done by waterside workers.

The New Zealand waterside workers' award, made in November, 1937, provides in clause 40 that if members of the union are available seamen shall not be employed at the work of loading or discharging vessels, or at work on the wharves, trucks, or in the sheds or stores, and where watersiders become available they shall replace the seamen employed. The seamen's award, made in February, 1937, provides that seamen may be employed handling cargo at their normal wages on vessels not exceeding 275 tons net register. The Awahou was of 206 tons net register. PRIOK CONDITIONS. The opinion of the Court states that the employers reached agreement with both the seamen and the watersiders, but as the watersiders' agreement had to be submitted to the members of the union the seamen's award came before the Court first. When the watersiders' s award came before the Court Mr. Walsh, on behalf of the Seamen's Union, opposed the application on the ground that, if made in terms of the agreement, the award would be in conflict with the provisions of the seamen's award. Mr. Roberts, on behalf of the Watersiders' Union,, submitted that the seamen's award had been obtained irregularly, but the Court was satisfied that there was no irregularity in connection with the award, and even if there had been the award would have been unimpeachable in virtue of section 118 (2) of the Statute. As the agreements were in conflict, the Court added a proviso to clause 93 (a) of the watersiders' award (application of award) making ship owners exempt from the .provisions of the award in respect of the employment of articled seamen in accordance with prevailing custom. The proviso also stated that the seamen's award should prevail if any of the provisions of the award were in conflict.

When the Court was asked for an [opinion, Mr. Roberts contended that the definition of industry.,in the I.C. and A. Amendment Act, 1937, amended, in effect, section 37 of the Statutes Amendment Act, 1936, and section 18 of the amending Act, 1936, should be given its original meaning. Consequently, as the waterside workers' award related only to the waterside industry, the Court was bound to give preference of employment to all persons employed in that industry. ; The Court did not agree with this contention, stating that the provisions of clause 18 of the amending Act of 1936 related to compulsory membership' of unions and applied only to "any position or employment subject to the award." The Court stated that it was clearly entitled to specify the positions or - employments to which an ' award applied, and it had done this by | adding the proviso to clause 93 of the watersiders' award. The effect of this proviso was to exempt from the provisions of the waterside workers' award the "position or employment" of articled seamen on certain work in accordance with custom previously prevailing. COURT'S JURISDICTION. "Clearly this Court has no jurisdiction to make an award in conflict with one already existing," the opinion stated, "and being satisfied that clause 40 was in conflict with clause 58 of the seamen's award, the proviso to clause 93 . . . was added in order to make it clear that insofar as there is a conflict between the waterside workers' award and clause 58 of the seamen's award, the latter shall prevail. Accordingly, in order to ascertain the rights of waterside workers and seamen respectively, regard must be had not toj clause. 40 of the waterside workers'! award, but to clause 58 of the seamen's award, which is to the same effect as clause 39 of the previous waterside workers' award. Mother words, the legal position is that clause 40 of the current award is inoperative in so far as it purports to affect the existing rights of seamen. •..'■■ "At the risk of repetition we desire to make it clear that the difficulties that have since arisen are due to the action of those employers who.entered into two conflicting agreements with waterside workers and seamen, respectively. Mr. Roberts, having obtained the ratification of his agreement from the members of his organisation, not unnaturally relies on the observance of what had been agreed to by the employers' representatives; and individual waterside workers, on perusing the award, have evidently not realised the meaning and effect of the proviso to clause 93 thereof. However regrettable the situation, it would appear that the proper course is to remember that the previous practice, by which the respective rights of waterside workers and seamen had been defined, is still to be observed if the awards are to be obeyed. "We understand that the work referred to in the inspector's question was being done by the seamen in accordance with their existing rights, and accordingly the question he has submitted must be answered in the affirmative."