PREFERENCE AND LIMITATION

New Zealand Times, Volume XXXVII, Issue 8612, 24 December 1913, Page 5

PREFERENCE AND LIMITATION

LEGAL OPINION ON IMPORTANT POINTS. Mr P. J. O’Regan has given the following legal opinion upon certain points that have arisen in connection with the now union of waterside workers in Wellington and it* rules relating to preference to unionists and limitation of members : “I am asked to advise on the following facts: “A union of waterside workers was recently formed in Wellington, and registered as an industrial union under the Industrial Conciliation and Arbitration Act, 1903. Since the recent strike was declared off, a number of waterside workers have applied for admission, and have been refused, although experienced and competent workers. An industrial agreement was entered into recently between the union and certain employers, and although 1 have been unable to obtain a copy thereof, it not yot having been printed, I understand that it is practically a repetition of tho collective agreement formerly obtaining as between the employers and the Wellington Waterside Trade Union of Workers. That agreement provided for preference of employment to unionists, and I am assured that the new agreement contains a similar provision. Rule 4 of tho now union provides that membership shall bo open to any person employed about tho wharves in the vicinity of Wellington Harbour, or on any vessel moored within the harbour, on his signing a declaration that ho will ‘adhere to the principles of tho Act.’ Rule 4a further provides that any member who is deemed by tho secretory to bo ‘opposed to tho principles of the Act’ may bo expelled from the union by ballot of tho members subsequently called for tho purpose. “ From these rules It would appear that, even if an applicant signs tho required declaration, and becomes a member, It is still open to the secretary to presume that he is ineligible to remain a member, and to compel him to submit to tho ordeal of n ballot. Tho rules in question amount to the imposition of a political test, and their effect, if enforced, is to deprive of tho opportunity to work, men who, in tho exercise of their rights as citizens, oppose the principle of arbitration. No doubt there is an obligation on industrial unions not to engage in strikes, beoauso a strike by workers bound by an industrial union is unlawful. That obligation exists independently of any rules, being imposed by statute, and doubtless the provisions I have quoted were intended to mean that members of tho new union would undertake not to strike, hut if that was the intention, it is unnecessary to express it any case; tile rules should have bean properly drawn. Looking at the rules ns a, whole, they cannot by any means bo regarded as models of draughtsmanship, and these two rules in particular apparently .moan tbat any worker who is opposed to arbitration shall ho deprived of the opportunity to earn his living. I am of opinion that tho provisions of tho rules as they stand are ultra vires, and devoid of legal effect. “No doubt, it is quite competent for any union, even one registered under the Industrial Conciliation and Arbitration Act to restrict its membership, and make itself what' "is popularly termed ‘a close corporation.’ If that is tho case, however, tho union cannot have preference to unionists, and even if preference ho granted by agreement or award, it must necessarily ba subject to tho condition, express or implied, that the door of admission ta the union is wide open to all competent persons. -If preference ho* been granted, it is ipso facto lost directly any restrictive conditions arp imposed, and in that case employers are fro* to engage whom they wish, whether unionists or not. In my opinion, therefore, it is clear that if the newly-formed Wharf Labourers’ Industrial Union of Workers seeks to impose any restrictive conditions, employers will, by that fact, be released from tho obligation to give preference to unionists, even if the agreement or any . award to bo made hereafter provides therefore, for even the Court dt Arbitration can have no jurisdiction to allow preference to unionists, save under tho condition that membership shall bo free to all competent workers.

“Though it is competent for an industrial union to make itself, in a limited sense, a close corporation, there is really no advantage in doing so, for, not only do its members thereby lose the right of preference of employment, but the conditions of la-’ boar provided for by tho award or agreement apply to all workers - employed in the industry. Tims it ia possible for the new waterside™’' union to comprise fifteen member# only. Nevertheless, the wages and hours, etc., provided in any award or agreement to which that union is a party apply in respect of all workers at the waterside, and any employer paying lower wages or observing conditions lass favourable thaw those provided for by the award or agreement would he guilty of a breach thereby and punishable accordingly.. An award or agreement under the Industrial Conciliation and Arbitration, Act really confers a status on. all workers engaged in the industry affected, and it is not competent for anyone to escape that status even by mutual agreement, however explicit.’"