THE WORKERS AND THE ARBITRATION ACT

Otago Daily Times, Issue 15063, 9 February 1911, Page 5

THE WORKERS AND THE ARBITRATION ACT

THE TRADES COUNCIL IN REPLY.

TO THE EDITOB.

Slß,—ln your article in last Saturday's Times you take the Otago Trades and Labour Council severely to task for wliat. you a,ro pleased to torm " their violent attack on Mr Justice Sim." You devotetwo columns of space to a criticism of our letter, in which the council is abused up hill and down dale, but you make no attempt to provo the unfairness or untruthfulness of our statements. You say " It would be possible ior us, if there was any need for it, to tako the council's letter clause by clause, quotation by quotation, and lino by line, and to demonstrate that practically all through it has by the employment of one device or another contrived to give an erroneous impression of the actions of the court."

Well. Sir, we. challcngo you to tako our letter whichever way you choose and prove that our statements are untruthful, incorrect, or misleading, and if you can do so wo will publicly apologise for making them and withdraw all wo have said. We have no desire whatever to bo unjust or to act unfairly to Mr Justice Sim. We want, as wo said in our letter, to be loyal to the arbitration system of settling industrial disputes, but we also desire to act loyally to the class we represent., and if we are satii-:ficd they are not receiving fair play under that system then we intend to say so fearlessly irrespective of the feelings of any person, whether that person bo judge or layman.

Ycu say: " The disingenuousness of tho production is simply amazing. The decisions of tho court arc misrepresented, and the pronouncements by the judge aro twisted, not once only—as might have been done inadvertently—but frequently, in order to convey a construction which they do not legitimately bear." And in proof of that' statement you point to a glaring illustration of distortion in our quotation of Mr Justics Cooper in tho Otago coal minors' caso. Whoro the distortion actually comes in wo fail to see. We never referred in any way to the point that was in dispute between the parties, but we quoted the Book of Awards and tho number of the page to enable any ]">erson who desired to do so to read the whole judgment, Our object in publishing the extract was merely to show that Mr Justice Cooper was of opinion that there only required to be a "difference of opinion " in order to create a dispute. That there was more than a difference of opinion between the parties in the case and that tho Employers' Council contended that in order to create a dispute there must bo evidonco of actual strife is beside the question. It did not concern our point, and thore was no earthly reason why we should mention the fact. All we wanted to show was Mr Justice Cooper's definition of "a dispute." Mr Justice Cooper delivered that judgment from the Supremo Court Bench, which, we pointed out, was purely a court of law. On the other hand the' Court of Arbitration is supposed to bo a court of equity, and in that case could, and, wo maintain, should have taken a broader view of things. We claim (hat thoro was a parallel between tho miners' case and the shearers', inasmuch as they wore equal in all essential parts. In both cases there had been correspondence between the union and employers, the only difference being that the corres]K>ntlonce from tho shearers was from the secretary of tho Shearers' Federation instead of from the secretary of the Canterbury Shearers' Union. That a dispute existed between tho two parties there was no question, and after carefully reading the report of tho proceedings we can only como to one conclusion—namely, that tho case was struck out merely because the communication did not come direct from tho Canterbury Shearers' Union.

Your quotation from Mr Justice Cooper's judgment in the Hilcurangi coal mind's' case, in 1903 liae no bearing whatever on the shearers' case, nor has the lengthy quotation from Mr Justice Chapman's judgment in the Auckland butchers' case m 1905. In both cases the judges wore dealing with something distinctly provided for in the Arbitration Act. In tho first caso the act provided that before a dispute could be referred to tho court it must first 1)0 referred to a Board of Conciliation. In that case tho dispute had not been properly referred to a Board of Conciliation, consequently the court had no jurisdiction. Section 21 of the act of 1901, reads as follows : —

' " Either party to an industrial dispute which has been referred to a Board of

Conciliation, may, previous to tho hearing of such dispute by the board, filo.with the clerk an application in writing requiring the dispute to bo referred to tho Court of Arbitration, and that court shall

have jurisdiction to settle and determine such dispute in the same manner as if such dispute had been referred to tho court i nclor the provisions of section 58 of tho principal act."

In the second case tho act provided that a dispute could not ho Teferred to a board or court unless the Tcforence had been approved by the members of tho union in the following manner: —

"By resolution passed at a special meeting of the union and confirmed by subsequent ballot of tho members, a majority of tho votes recorded being in favour thereof; the result of such ballot to bo

recorded on tho minutes." In both cases the judges were dealing with a matter specially provided for in tho act, and under no circumstances oould they hear the disputes until the provisions of tho act had been complied with. However, the act is silent as to what shall constitute a dispute. Under the heading of "Interpretation " in the act, " industrial dispute" means "any dispute arising between one or more employers or industrial unions or associations of employers and ono or more industrial unions or associations of workers in relation to industrial matters." Tho question of when a dispute becomes a dispute is loft entirely in tho hands of the court to decide. So far three judges have given a definition, and all three are different.

With regard to the Dunedin carriers, it is true, as you say, Hr Justice Chapman declined jurisdiction, but it was because the employers had not complied with the same provisions of the act as tho Auckland butchers failed to comply with—viz., failure to call tho special meeting, etc., in accordance with the provisions of tho act. But the representative of the Workers' Union first raised tho point that there was no dispute at the timo the application was filed, nor had they received a copv of the employers' demands. This, we say, tho judge attached no importance to, and brushed tho objection aside with the remark " that the court recognised a dispute became a dispute immediately an application was filed."

Now, Sir, you have keen good enough to accuse the council of misrepresenting the decisions of tho oc-art. and distorting state-

meats by the wrenching of a few \cords from their context and representing tf.om as a fair summary of the terms of that statement, but what about yourself? Have ycu not done exactly what you accuse us of doing? _ Have you not boon gniilty of glaring misrepresentations in your quotations from fne judgments of the court in the Hikurangi cool miners' and Auckland butchers' oases? You knew, or should havo known, that those cases had no bearing •whatever on the points which were held to be fatal to the union in the shed hands' ease. In that case the shearers were thrown out of court on the dictum of Judge Sim that no dispute existed. There was no question of non-compliance with the act. In the eases you quoted—the Hikurangi coal minors and Auckland butchers—the men were thrown out because it was clearly shown that the mandatory provisions of the act in reference to ballot had not been complied with. Why, wo ask, did you do such a thing? You say tie Auckland butchers' case is valuable, and "completely disposes of the 'bold assertion of the Trades Council t-hui the decision of Mr Justice Sim that the court had no jurisdiction to hear the shearers shed hands' case was in conflict with decisions by both Mr Justice Cooper and Mr Justice Chapman," but as we have shown there is no comparison. The judgments of Mr Justice Chapman and Mr Justice Cooper were on a vital point on which the act is most explicit, but Mr Justooo Sim's was on a trivial noint on which he was freo to exerciso his "own discretion, since the act is silent on the matter. Is it not a fair assumption, therefore, that Mr Justice Sim was not anxious to make the way easy for tlio shed hands obtaining an award?

Do wo stand alone in our condemnation of tho action of Mr Justaco Sim? Tho answer may bo found in tho following extracts from leading articles which appeared in the Canterbury newspapers at the time the decision of Mr Justice Sim was given. Perhaps you will also call them slanderous charges :—

We cannot help thinking that the Arbitration' Court departed very widely from the spirit in which the Conciliation and Arbitration Act was coneoived when it dismissed the application of the workers for an award in tha dispute between tho Shearers' Union and the Sheep-owners' Union regarding tho wages and 'conditions of shearing-shod hands, on the ground that when tho application was filed tho existence of tho dispute had not been properly proved. . . . Technical objections were raised by the employers' representative on other ' points, but this one was never mentioned until the court came- to give its decision. Then tho president, with a knowledgo of the letter of tho law which no one will question, explained rlie position. . . . Wo do not know what proof the court would have required, and wo need not inquire, but wo are quito sure that tho Legislature never intended that the operation of the act should be delayed and defeated by more legal quibbles. . . . It'would

not need many decisions like the cue delivered by Mr Justice Sim Inst week to bring the whole system of arbitration into disrepute.—Lvttelton Times, November 50, 1910

Wo confess that wo have a great, rleni of sympathy for the workers who find themselves baffled and exasperated by the present administration of the Arbitration Act. . . . The court made its award in the shearers' case, but now declines to take action in the case of the shed hands, on the ground that there was no communication between the parties on llm subject before the reference was filed. This sort of thing is rapidly bringing tho Arbitration Court into disrepute. . . . The Arbitration Court is doing its Iwst to defeat the wiso purpose of tho Legislature, and we can only express our deep regret that is should bo so. It has been obvious for a Ions; time that the presiding judge utterly fails to realise tho spirit in whklh the act ought to bn interpreted, or to get rid of obsession in the matter of forms and formalities.— Christohureh Star, November 29, 1910. The raising of comparativelv unimportant technical points, and the strict observance of the rules of procedure, is altogether inconsistent with tho spirit of the Arbitration Act, and a few more decisions of this kind will strain the patience of the workers to tho breaking point.— Timaru Post, November 30, 1910.

Wie ai£, etc., TnE Executive, lrades and Labour Council of Otago, Dunedin, February 6.