ARBITRATION COURT CRISIS

Evening Star, Issue 17767, 15 September 1921, Page 3

ARBITRATION COURT CRISIS

■f ■ '* MR M’OUILOUGH’S MISCONCEPTION. COURT PRESIDENT’S STATEMENT. “ Some statements contained in Mr J. A. M'Oullough’a published explanation of his reasons tor resigning his office as a nominated member of this court call for a reply from Mr Scott and myself ; commences the statement of Mr Justice 1 razor, President of the Arbitration Court. ‘‘We should feel that we wore on somewhat delicate ground if we wore, compelled to rely solely on our memories for tho details of a discussion that took place nearly four months ago, lor in a matter of memory there might be an element ol doubt as to whether the recollection of a majority holding one view was necessarily more accurate than tho recollection of a minority holding a different view, hortunatoly there exists documentary evidence for the refutation of the suggestion that two members of the court had broken faith with the third, and of the (in our mind) more serious suggestion that al| three members had combined to mislead litigants and tho public generally. There is not only the stabilisation pronouncement itself, but there ,is also the draft of the pronouncement in its original form, as it appeared before the wording of tho concluding paragraph was finally settled. This draft is so unmistakably clear in its wording of the matter specifically in issue that it is in itself a sufficient contradiction of the statement that members of tho court had agreed among themselves that, as tho price of Mr M'CuUough’s assent to the witholding of n bonus, existing rates of wages would in no case bo reduced before Hay 1, 1922, notwithstanding proof of the inability of the industry or industries concerned to pay thoso wages. “Mr M'Cullough’s ..explanation of his position is based on tho concluding paragraph of the court’s stabilisation pronouncement of May 14 last. The paragraph is as follows i This pronouncement is of a general nature, and is issued for tho information and guidance of parties. It will not be subject to review until after April 30, 1922, except as hereinafter mentioned. It is not intended to take away tho right of either party to an award or industrial agreement to make an application to the court under the»existing legislation; but the court will require proof of extraordinary circumstances before departing from tho principles herein laid down, unless the parties agree to a modification. “Mr M'Cullough says, in effect, that this paragraph was mere camouflage, and that the members of tho court had agreed among themselves to ignore it altogether, and to apply the stabilisation principle rigidly in every case, without regard to tho evidence, “The stabilisation scheme was debated by tho members of the court for several days, and was adopted only after very considerable discussion. After the draft of the pronouncement had been prepared and approved, tho members of the court thought that some difficulty might arise over the wording of the final paragraph, which iu the original draft was as follows:

This derision is unanimous, and will not be subject to review until May 1, 1922, except on applications on behalf of individual industries wherein it is proved to the satisfaction of the court that tho economic continuance of such industries is 'imperilled, or in cases where the parties agree before tho court to tho matter being reopened, or in the event of unforeseen circumstances leading_ the court, of its own motion, to review its pronouncement at a date earlier than that specified. ' _ NO CAST-IRON UNDERTAKING. “The paragraph as originally drafted was agreed upon by all tho members, but it was thought, on further consideration, after a copy of the pronouncement had been typed for final revision, that it might be construed as a refusal to deal with applications for bonuses filed by unions in respect of tho awards affecting them. We were, of course, bound to consider such applications on their merits, subject to any- general rules laid down by the court. Tho members of the court agreed all along that though wo could not shut tho door against individual applications from employers or workers, it was not desirable to encourage the belief that tho principle underlying the pronouncement would lightly bo departed from, on tho application of either party to an award. This is, we have no doubt, tho ‘gentlemen’s agreement’ to which Mr M'Cullough refers, though we aro at loss to understand how he can have interpreted it as a cast-iron undertaking that wages would not in any circumstances be'reduced, no matter what evidence might bo placed before the court. “The pronouncement was intended to be as far as possible of general application, and to remain unaltered unless the general financial and industrial situation became such as to render reconsideration necessary from a Dominion standpoint. At the same time, however, it was fully recognised that the court could not prevent applications for reductions or increases of wages being filed by employers or workers bound by particular awards, and it was also recognised that circumstances might arise that would justify the court in treating certain applications as special cases. That this was tho caso is, wo think, clearly proved by tho reference in the original draft to the economic continuance of individual industries being imperilled. “Tho members ot the court wero quite clear in their minds as to what was intended by the final paragraph, but there was a difficulty in agreeing upon an, appropriate form of expression. After discussing a number of alternative suggestions, wo finally agreed on tho adoption of the phrase ‘ extraordinary circumstances,* as indicating both tho court’s reluctance to depart from its pronouncement and its recognition of the possibility of its having to do so.

“Mr Scott and I have no hesitation in affirming that tho final paragraph, as printed, expresses the agreement of the members of tho court. The only remaining unwritten understanding was that wo would give, a strict interpretation to the phrase ‘ extraordinary circumstances ’: that is, that wo would take that phrase to mean exactly what it implies; This was not in the nature of a bargain, but was freely agreed upon by us all, and will not bo departed from. “ WOULD NOT TIE ITS OWN HANDS.”

“In our judgment of Jane 16, 1921, which was given after wo had heard a test case in which a union had made application for the withheld bonus, we said: ‘ Owing to the uncertainty of the financial and economic situation, wo cannot bo sure that the scheme will work out satisfactorily.’ We said also: ‘A suggestion that the court has not adhered to what wna regarded as a promise is refuted by the obvious answer that tho court cannot control financial and economic conditions, but can only indicate the policy it wishes to carry out if circumstances permit.’ “ These passages surely indicate that the members of tho court were fully aware of tho difficulties attendant on an attempt to stabilise, even though we realised that the attempt ought to bo made; they indicate, too, that tho court, with those difficulties in mind, would not deliberately tie its own bands in such a way as to prevent it from dealing with them when they arose. It must be remembered that cost of living bonuses are not grantable as a matter of course; but that the court has onty a discretionary power to grant such a bonus if, after taking all relevant _ considerations into account, it is satisfied that it is fair and equitable to employers as well as to workers to grant it, and that the economic continuance of the industry will not bo Imperilled thereby. COULD NOT PREJUDICE CASES. “We have to point out, moreover, that the pronouncement of May 14 and _ the judgment of June 16 lost were written primarily with reference to applications under the War Legislation and Statute Law Amendment Act, 1918, for tho amendment of existing awards, but we are willing to concede that the principles stated in those decisions should logically extend to the making pf new awards, and -were

intended to apply in such cases. We desire, however, to refute emphatically the suggestion that there was an agreement, written or unwritten, that the members of the court would prejudice any and every application, whether for an amendment of an award or for a now award, for nearly twelve months ahead, and thereby reduce the functions of the court for that period to tho level of an empty farce. “The stabilisation policy lias not prevented the court, on numerous occasions when making new awards, from raising wages to tho present standard rates, and in the shearers’ ease all that was done was to reduce wages to that standard when it was found that the industry was unable to stand the higher rales. We may'add, too, that as shearing is carried on only during tho summer months tho shearers were not in strictness entitled to be regarded as being covered by the stabilisation pronouncement, the effect •of which was to set off an ascertained increase for tho May-October period against a prospective reduction for the November-April period. We do not, however,_ stress this point, but merely mention it in passing. MISCONCEIVED THE POSITION. “ We regret that Mr M’Cullough should have 60 misconceived the position. We had no knowledge of his view of tho moaning to bo attached to the last paragraph of tho stabilisation pronouncement until September 5, notwithstanding the fact that v.c had on several occasions discussed the possibilities of the shearers’ case. Prior to that date we knew only that ho had explained the general scheme of the bonus pronouncement to representatives of various unions, and had given them a pledge that theteost of hVing adjustment would he found to have worked out .satisfactorily when stabilisation period ended on April 30 next. “BOUND BY HIS PROMISE." “Wo think, however, that tho wording of the original draft of tbs pronouncement of May 14 settles the matter. We do n°t impute to our former colleague any intention of wilfully misleading tho public or of discrediting the court; but we deem it necessary to give our version of the history of the making of the stabilisation pronouncement. Nobody regrets more than we do the fact of Mr M’Cullough’s resignation, the more especially because it 'arises out of a misunderstanding. Wo urged him to reconsider his decision, but he considered that, oven though his promise to the unions might have been a rash promise, ho was bound by its terms to resign his office if the court in any Instance, or in any circumstances, reduced wages before May 1, 1922. Wc made it perfectly plain in tho memorandum annexed to the shearers’ award that his dissent was unqualified, so ,that he could not bo regarded as haying in any way acquiesced in the decision. We agree, though we regret the necessity, that, having made tho promise referred to, ho was in honor bound to keep it unless the Labor organisations released him from his obligation. Mr Scott desires mo to say, in conclusion, that bo lias on a number of occasions explained the stabilisation pronounce ment to meetings of employers in different parts of tho Dominion, and that his explanation of tho meaning of the concluding paragraph has always bean exactly as we have stated it to-day. “Wo had intended to make a statement from jibe Bench on the foregoing lines, but owing to there being an clement of uncertainty as to tho date of the _ next silting of tho court wo think it desirable to acquaint yon with our views without delay. We "have no objection to your making such use of this memorandum a 3 you think fit. » “ (Signed) F. V. FiuzTm. “I concur in tho above memorandum in its entirety. “ (Signed) William Scott.”