WHARF WORK

New Zealand Herald, Volume LXXV, Issue 23010, 11 April 1938, Page 14

WHARF WORK

, "ALL IS NOT WELL" 4 MAGISTRATE'S COMMENT POET CAMPBELL DISPUTE EMPLOYEES AND WOBKEBS [BY TELEGRAPH —OWN CORRESPONDENT] WELLINGTON, Saturday "It is common knowledge that all is not well on the waterfronts of New Zealand, but this Court is not charged with the duty of finding the cause of the trouble, nor am I in a. position to express any opinion on it," said Mr. J. H. Luxford. S.M., in giving judgment in the Magistrate's Court, Wellington, against one of 75 waterside workers charged by the New Zealand Waterside Employers' Association on March 130 with a breach of award. The magistrate said that although provocation was given defendant he was not prepared to dismiss tho case under the section of the Industrial Conciliation and Arbitration Act providing for the dismissal of an action on the ground that the breach was excusable. The penalty was fixed at £l.

Summing up the facts relating to the failure of the men to work the Port Campbell between 6 p.m. and midnight on January 25, the magistrate said: — "The men intimated that they would not carry on if the crew continued to work No. 1 hatch. McLeod (who was in charge of loading operations) said the crew would continue, and thereupon dismissed the men. The men's intimation was unequivocable and McLeod was justified in treating it as a refusal to work. I come to the same conclusion, and hold that a breach of the award ■was committed. It must be understood tha{ this finding is binding on the present defendant only, and that any one of the other 74 defendants in the pending actions may lead evidence to prove that he did not in fact refuse to work.

*'Mr. Hardie Boys, however, stressed the surrounding circumstances and suggested that I should exercise the powers conferred on me by section 181 of tho Industrial Conciliation and Arbitration Act, 1925. That section provides (inter alia) that if the magistrate 'is of opinion'that the breach proved against the defendant is trivial or excusable, the action may bo dismissed.' Grounds of Defence

"It was not suggested that the breach ■was trivial, but two specific grounds were advanced in support of the proposition that it was excusable; first, the employer was wrong in ordering No. 1 gang to work during the tea hour, ,as this gang had already been ordered to work between G p.m. and midnight; secondly, the employer committed a breach of the award by enf aging' members of the crew of the ort Campbell to work No. 1 hatch. The facts indicate that the employer had no power to order No. 1 hatch to work during the tea hour; that is assuming my judgment in Gannaway and Company, Limited, v. Anderson is correct. This has some bearing on the present case, although Nos. 2, 3 and 4 gangs did in fact resume work at 6 p.m. did not subsequently refuse to work because No. 1 gang had been dismissed unlawfully. Two Conclusions "The gravamen of the defendant's contention is that the employer used the crew of the Port Campbell to work No. ,1 hatch and thereby committed a breach of clanse 50 (a) of the award. ... It is difficult for me to express an opinion as to whether Gannaway and Company, Limited, committed a breach of clause 50 (a) or not. The company is not before the Court, # and is entitled to be heard before it is condemned. That is impossible in the present proceedings. Yet I am bound in fairness to the defendant to state that on the facts elicited in the present case I must come to two conclusions. First, 'if the employer had not unlawfully dismissed 1 gang there would have been union men available to work No. 1' hatch until midnight; secondly, the men in Nos. 2, 3 and 4 gangs might possibly have completed their work and No. 1 hatch as well. Seriousness of Stoppage "Mr; Stevenson addressed me at some, length upon the seriousness of a refusal to -work, . especially in the case of loading a cargo of chilled meat, and made reference to a series of stoppages of work at various ports throughout the Dominion.; He stressed the necessity for maintaining the sanctity of awards and made reference to clause ,48 of the award, which makes provision for the settling of disputes by a special committee. I am in full accord with that view,, but: would point out that the obligation to comply with an award devolves equally upon the employers and the workers who are partieii to and bound by it." After making the remark quoted in the opening paragraph of this report, the magistrate continued:— "I am not entitled to consider anything outside the particular facts of the case before me, but in coining to my decision on the quantum of penalty or in determining whether. I should dismiss the case under section 131, I must take into account any provocative or ill-timed act on the part of the employer which led to the defendant's breach of the award. The law has always upheld the plea of provocation in mitigation of penalty, or in matters of excuse. Summary Dismissal "If. any body of workmen take it Upon themselves to stop work in breach <of an award, merely because a dispute has arisen, which they are not willing to submit to the disputes committee, they ljuist expect the full penalty the law prescribes. "That is not the position in the present case. Whether my judgment that an employer has no power to order men who have agreed to work ' overtime from 6 p.m. onward, to work during the tea-hour, is a correct interpretation of the award or not, the question was one of sufficient doubt properly to have been treated as a dispute and dealt with accordingly. The employer, however, summarily dismissed the men who refused to work during the teahour. ' Question of Provocation "Probably no greater provocation in the circumstances could have been ' given than putting the crew to work No. 1 hatch. 1 do not think that any experienced employer of waterside labour would have expected for one moment any other result than what did in fact happen. "Two?wrongs, however, do not make a right, and in spite of the provocation given the defendant I am not prepared to dismiss the case under section 131. Trade unionists must learn to treat 'the disputes committee' clause as fundamental of every award and to invoke it on all appropriate occasions. Further, that if an employer commits a breach of an award he is amenablo to the law and is subject to a far heavier penalty than a worker. 'lt was open to the union to have proceeded against Gannaway and Company,j Limited, and a substantive decision could have_ been given on the legality or otherwise of its representative s actions on tho night in question, •'he facts in the present case show thati prima facie, the company acted in contravention of the award, but, as P°" l ted out before the company has not been heard, and may have a good answer." The question of costs was reserved. At the hearing Sir. J. F. B. Stevenson for the employers' assoMr. R. Hardie Boys for