A CHALLENGE

New Zealand Times, Volume L, Issue 11658, 24 October 1923, Page 3

A CHALLENGE

POWERS OF COURT

PROCEEDINGS BY WORKERS’ FEDERATION. full COURT SITTING. Argument was resumed yesterday before the Full Court regarding the application of the New Zealand. Workers* Federation for an order prohibiting tho Arbitration Court from enforcing tho (provisions <(f an awaVd of last yeaj, which governed! the conditions of waterside labour. The case i 9 of much importance m industrial circles inasmuch as the jurisdiction of the Court of Arbitration has been challenged, the federation contending tha': it exceeded its powers by inserting certain provisions, to which strong objection had been taken by that body. Tho question as to whether the Supreme Court has jurisdiction to override the ruling of the Arbitration Court by quashing tho award on these grounds, has also tx> be decided. This is the first case of its kind in the Dominion, and is only the second instance in which a motion; for prohibition has been taken against the Court of Arbitration, the for- , mer occasion being in connection with the industrial trouble at Blackball in 1905. Tho court, comprising Mr Justice Hooking (presiding), Mr Justice Herdman, Mr Justice Salmond, and Mr Justice Reed, reserved its decision. Mr P. J. O’Regan appeared for the plaintiffs, and Mr C. P. Skerrett, K.C., with whom appeared Mr J. F. B. Stevenson, represented the defendants. The matter had been adjourned from last week, owing to Mr O’Regan’s indisposition. PROVISIONS OBJECTED TO. The Court ©i Arbitration, on November 17th of last year, in its award dealing with waterside labour conditions, provided:—“Section 23 (a). Commencing work; —Any man starting work must finish the particular ship or job for whioh lie is engaged, or any other ship or job to which he might bo transferred, os provided by this award 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 Saturdays (except in either case of the first day of tho ship’s working), may, at the expiration of the abovementioned six . hours or three hours, as the case may bo, be ordered back for a lateT hour or for the following day without payment for the intervening time or any portion thereof; (c) men who have been knocked off oh any day on account of rain, shortage of trucks, or any other unavoidable cause whatsoever, may also bo ordered back for a later hour on tho same day, but not later than, the next call for labour, or for tho following day if thero is not further call for labour on the same day without payment for the intervening time or any portion thereof . ...” working in wet wea-

ther-~"Section 46 (a) ... in cases in which the engagement is suspended, the employer m«v order the men back for a later hour (but not earlier than two hours, exclusive of meal hours from tho time of suspension) or the next morning, or, in the event of the stoppage occurring on tho day prior to a Sunday or holiday, for the morning following such Sunday or holiday, in which caso the men who attend shall be paid a minimum of two hovrs* pay; (b) . . . in cases in which the engagement is suspended, the employer may order the men back for a latOr hour or for the next morning. . S’

The federation asked that (a) a writ of prohibition bo issued prohibiting the Court of Arbitration from enforcing the provisions of the award in so far as the same exceeded its jurisdiction; (b) that the plaintiff association bo allowed the costs of the proceedings and such other relief as to the court shall seem fit. On (behalf of the defendants it was stated that by section 06, sub-section 2 of the Act, ''no award, of the Court of Arbitration of New Zealand, shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court of judicature on any account whatsoever. THE COURT'S RIGHTS. On resuming yesterday, Mr (Y Regan dealt at length with the merit© of the case, quoting a number of authorities in support of his contention that the court had gone beyond its powers. Counsel went on to say that he recognised that the Arbitration Court had a right to prescribe rules and the time when work was to commence, 'but ©uc-h provisions as he was objecting to were ? t uite new, and had never before boon nserted in awards. Mr Justice Hosking wished to know whether the waterside worker was a casual worker. Mr O'Retgan said he was described as euch in the Worker#' Compensation Act. If a man did not turn up, another was put in his place; the employment was such as came within the category of casual work. To Mr Justice Reed he said: "I am quite prepared to admit. Your Honour, that the court had every right to set the hours of labour It is an extraordinary thing if the court can say that a man should remain idle. The court has no right to say—and this is my main submission—that the court has no right to make provisions the effect of which is that men should bo compelled to remain idle." Counsel submitted that there was no analogy between the tramwaymon and watersiders. In connection with the latter, he said, the court had undoubtedly exceeded it© jurisdiction. With the tramwaymen there was only one employer, which was the City Corporation \ the watersiders were quite on a different basis. Mr Justice Reed : Are not the terms compulsorily settled by the Arbitration Court? Mr O'Regan: Quite so. But bore a man was "suspended," he said, and the court said he should not be paid for tbo interim, "NOT ON THE SOAP-BOX!” Mr O'Regan, proceeding, observed that the employers "could always find cause/' Mr Skerrett strongly objected, saying: "My friend is not on the soap-box now!" Mr O'Regan: I submit, Your Hoonurs, that this is a most improper remark to make I have not been on the soap-box Mr Skerrett: Well, it is an improper observation for you to make! Mr O'Regan: The methods of the Welfare League have no right to bo brought in here! Mr Justice tropic inn- said he thought

that the observation regarding the soap box was not a right one. They could not proceed on those lines, and the court did not want to hear any more of it. Mr O'Regan: Very good, sir. Mr Justice Hosking: We want to know why the Arbitration Court cannot say the work must be finished if the job is undertaken. ... If they remain idle, that is an argument, in my opinion, to be presented to the Arbitration Court. It does not interfere with the court's jurisdiction. It is an argument to be addressed to that court on. an application for higher wa£es. TWO PROVISIONS ATTACKED.

Mr Skerrett replied in the afternoon, and also dealt with a large number of authorities in support of the case for the defendants.

He understood that what was being attacked was not the-whole award, but only two provisions. Mr O’Regan: That's right. Mr Skerrett went on to say that it could be settled by the simple method of an interpretation of the whole statute. The court, he said, had every right to fix terms and hours of employment, which undoubtedly came within its jurisdiction.

Mr justice Salmond: That is 60 if it is a continuing contract. Mr Skerrett: I submit that it was a continuing employment. He invited the court to determine the questions on the ground that these conditions in the award related exclusively to hours and employment. There was no doubt that it was a continuing contract. And once the court had arrived at that conclusion it was not necessary to go further. It would be a surprising position if employers could say to their workers, "We will only employ you for an hour, a halfday, or a day of eight hours, and then re-engage you for succeeding hours, and during the interregum there should be no control of conditions of re-engage-ments!” It was the object of the statute, he submitted, to regulate not one lot of conditions only, but all work done or to be done, in any industry. NOT TO BE CHALLENGED. He also contended that once the Arbitration Court had dealt with an industrial matter it could not be challenged on any ground whatsoever. Mr Justice Hosking said that Mr O'Regan need not 6ay anything further on the question of jurisdiction. Dealing with the case at length, Mr O’Regan declared that it was an abuse of the court's procedure to compulsorily make men idle. The men considered that the new departure of compelling men to remain idle without payment was a genuine grievance. It was submitted that the contract was from day to day, and the Arbitration Court could not impose new conditions before a new contract was entered into. Mr O’Regan declared that the watersiders were casual labourers, and they had made out a good case for submission to the court that the Arbitration Court (lad exceeded it powers when making such provisions. TO PACE POSITION. It was also stated by Mr O'Regan that if the court found for his clients that matters would very soon adjust themselves. _ • * Mr Justice Reed: Are you not asking us to limit the power of the Arbitration Court very much P Mr O’Regan did not think such was the case. Mr Justice Hosking remarked, that the court had often to faco the position that it© decisions would have a somewhat pelturhing effect. Mr O'Regan: That is so, sir. He added that there had been numerous in stances of such decisions. Mr Justice Hosking was of opinion that it was not necessary to quote them. ”We will reserve our decision," coneluded His Honour.