POWERS CHALLENGED.

New Zealand Herald, Volume LX, Issue 18534, 19 October 1923, Page 8

POWERS CHALLENGED.

COURT OF ARBITRATION, * v -QUESTION OF SUPREMACY. Restraining writ SOUGHT. ""/"APPEAL court case. , • [BY TELEGRAPH—OWN CORRESPONDED.] :: : '' ' . : , WELLINGTON. Thursday. Questions of great importance to workers ' and , employers were; raised - in . : proceedings ■; which \ commenced before the Full - Court to-day. The , New Zealand Waterside Workers' Federation took action against the members of the Arbi- - . tration Court for a writ prohibiting tho Court from enforcing certain provisions in regard to "standing by" contained in '■.-? the Waterside Workers' Award made last, November. The whole question of the f powers of ; the Court .was raised by the federation, which urged that the Court ■ had exceeded its powers of jurisdiction. The answer filed by the Court ■ was that .no Court had any,power to review or •-. • ° quash provisions made by the Court of • Arbitration. On tho Bench were Mr. ' Justice Hosking, Mr. Justice Herdman, Mr. Justice Salmohd, and -Mr. Justice Reed. Mr. P. J. O'Regan appeared for tho plaintiff- association, and the members of the Arbitration Court were represented by Mr..C. P. Skcrrett, K.C.. and Mr. j! F. B. Stevenson. The 'Contested Provisions.

The statement of claim set out that on November 17, 1922, the Arbitration Court- pronounced a Dominion Waterside Workers' Award,' which contained, inter ilia. I'm following provisions:— Commencing work, section 3 (a) : Any man starting Work must finish the particu- ' Jar ship or job for which he is engaged, or any other ship or. job to which he might" be transferred, before accepting other employment; (b) men employed on ships, wharves, or lighters for six hours continuously in any one day (other than Saturdays), or for three hours continuously on a Saturday : ,{except in either cane" on. the first day of tho ship's working), may, at the expiration of tho six hours or" thre's hours, bo ordered back for a lato hour or foi tho following day without payment for the .intervening time or am- portion thereof; (c) men who have been knocked off on any d3y on • account of rain, s'thortage of trucks, or any other unavoidable cause* may also •be ordered bi.ck for a later hour on the same day, but not later than tho next call for labour, or fur the following day, if there: is not a further call for labour on the same day, without payment for the intervening .timo or any portion thereof. . _ - Working in wet weather, section 40: (a) In cases in which the engagement is suspended, the employer may order the men back for a later hour (but not . earlier than two hour;-; exclusive of meal hours from the time of suspension), or tho . next morning, or in tho event of the stoppage occurring on.; the day prior to a Sunday or a holiday, in which case the men who attend shall be paid a minimum -of two hours a day; (b) in cases in which : the engagement is suspended, the employer may order the men back for a later hour," or for the next morning. It was alleged that . the foregoing provisions and all other provisions of the award, insofar as they purported to impose the obligation of "standing-by ; pending, employment, were in excess of the jurisdiction conferred by law on the Court, because (a) the jurisdiction of the Court was limited to questions arising during the tin** that the relation of "master and servant existed; (b) the workers were employed casually and by "iW hour and (c) die relation of master and servant did mi' exist until - the workers ,wer'a' actually engaged. Case for the Defence.

The statement of defence set out that all the provisions of the award related to industrial matters .within the meaning assismed to that expression. The Act provided that no award of the Court should be liable to be challenged, appealed against, reviewed, quashed, or called in question, by Bay Court .of Judicature on anv account whatsoever. Mr. o'F.egan submitted that only as long as the Court acted within its jurisdiction its decisions could not be questioned, ".'• '-'• -. ••'■ ; m . ' '■' . 1 Mr. Justice Salmond: The Arbitration Court is not exceeding its jurisdiction. It is not proposing to put the provisions into force vet. Mr. Justice Hosking: A writ of prohibition is for the purpose of putting a stop to something that is happening. ■ After .some further discussion the Court decided to treat the action as a motion for a writ of certiorari. Mr. ; Skerrett said that* he would still

press that the Arbitration Court- was a Court apart and was supreme. There could be no question that the Court had jurisdiction to embark on the arguments which re- ' sulted in the making of the award. In the case of the Blackball miners the Court M Appesl held that the Arbitration Court had ; jurisdiction to make an order based ;, on warrants of distress. ... It was held , that no matter how _ erroneous the decisions of the Arbitration Court might be, there was", no appeal to a higher Court. The Blackball Case.

Mr. Skerrett dealt at considerable length with .the'Blackbc 11 case, which • was J dismissed, the majority of the • Court finding, that it'had no jurisdiction ' to reTriew or call into question any of tho .proceedings. Mr. Justice Edwards, however, had expressed the opinion'that sec- , tion 95 did not offer any obstacle to an ; inquiry into the matter .by the Court, "' and thought that the order made by the Arbitration Court should be quashed. ' The Blackball Miners'- Union was fined

for taking part in a strike, the fine being made payable to inspector of awards, distress warrants being eventually issued against- the individual members. "The "limitation .that I read into the Act," said counsel, "is that the Arbitration Court must not investigate anything but an industrial m?tter on which it is engaged." Mr. Justice Salmond: It can deal with what it. likes so long as it has jurisdiction. '-:.:■' '■' ■'■.■'■' •'.'".''■:'■' Mr.. Skerrett held thaA the interpretation :cf. the statute was relegated to the Arbitration Court. \ There- were ',:. two

. classes 'of case which affected the matter V: of jurisdiction, namely/ where a question depended on something preliminary and quite collateral to the merits, and where a question on which jurisdiction depended was part of the matter which the particular Couit had to decide. V^ ; : First Case In 29 Years. Mr. O'Regan said that although the Act had been in force, for 29 years, this ■'was the first time the question had arisen. "It has always been assumed," .said Mr. • O'Regan,■•■■" that f the Supremo Court did have an over-riding authority if the Arbitration Court had exceeded its jurisdiction. I quite agree that it would not have the power,: providing the Court of Arbitration was within its jurisdiction, or, as Mr. Justice Salmond says, 'minding its , own business.' " He submitted that if the Court had ™>. jurisdiction to provide that a worker snoaid not work for anv other' employer aunng.tho currency of an award. Jt had ?Snl U ,v- dIC^ 0n to itlseTt » clause,. ** con- • Slhat effecf tement ' - whlch indirectl y . ■■;Th* case will be resumed to-morrow.