TEE CONCILIATION AND ARBITRATION ACT.

Otago Witness, Issue 2320, 18 August 1898, Page 55

TEE CONCILIATION AND ARBITRATION ACT.

ALLEGED BREACH OF INDUSTRIAL

AGREEMENT,

At the City Police Court on Thursday, before Mr E. H, Carew, S.M., James Nisbet vvaE charged that, being a person bound by an industrial agreement bearing date February 26, 1893. between the Dunedin Painters' Industrial Union of "Workers and himself and others, he did, on the 20th inst., unlawfully commit a breach thereof, by employing a person named Thomas Rawley, who was not a member of the said union, or of any other properly constituted union of painters. This was an application under section 22, subsection 1, and section 89, of "The Industrial Conciliation and Arbitration Act, 1894," to inflict a penalty for the breach of paragraph 10, under an industrial agreement made in pursuance of " The Industrial Conciliation and Arbitration Act, 1894-," on the 26th day of February, 1898, between the Dunedin Painters' Industrial Union of AVorkers and the employers signing the agreement. Paragraph 10 is: "Employers shall employ only the members of the Dunedin Painters' Industrial Union of Workers, or some other properlyconstituted union of painters." Mr Gallaway appeared for the Painters' Union in support of the charge, and Mr Wilkinson for defendant, who pleaded not guilty.

Mr Gallaway gave a detailed description of the provisions of the act under which the charge was laid, and the mode by which penalties might be recovered and disposed of.

George A. King, recorder of awards, deposed that the industrial agreement bore the date of the 26th February, 1898.— T0 Mr Wilkinson : He did not know on what data it was executed.

John Paterson, secretary to the Dunedm Painters' Industrial Union of Workers, said the first signature to the agreement— -Smith

and Smith — was affixed on the 26th February. On the 20th July witness saw Rawley working for defendant at the Pobl Office. He was preparing a scaffolding, which was ordinary journeyman painter's work. He never saw Rawley with pots and brushes in his hand. James Gilchrist, member of tho Painters' Union, said that putting up such scaffolding as Rawley was erecting was not journeyman painter's work. He never saw Rawley do any painting work while on the job. Thomas Rawley deposed that he had been engaged by defendant from year to year for the past three years, but had had to stand clown since this case started. He was working at the Government Buildings from the commencement of the job, which wa« on July 12. He was engaged putting up the scaffoldin<*. Three days before that he was working at the North-East Valley for Mr Nisbet as a journeyman painter. Mr Gallaway: You are not a member of this Painters' Union? Witness: No, thank you. Mr GalJaway: Nor any other union? Witness: No. He had frequently v.orked as a painter for defendant. lie w-u, net paid by union scale. Defendant gave him his board and £1 a week, whether he was working or not. On the application of Mr Gallaway,the information was amended to read, "On or about the 13th July "

Mr Wilkinson said it did not follow that defendant knew that Rawley was not a member of the union. Counsel argued that the words in the agreement had reference to future employment, as from the 26th February, 1593. Mr Nisbet was bound by law to fulfil his engagement with Rawley. His Worship : Or pay damages. Mr Wilkinson said the agreement betwoc-n the two men was as good as a contract:.

His Worship: Do you argue that the one contract is a reason why Mr Nisbet should not carry out a subsequent contract?

Mr Wilkinson said that under the fxisting condition of things the union could apparently compel Mr Nisbet to do a thing that Mas morally and legally wrong. Very likely the union would be responsible for damages if Mr Ni&bet discharged Rawley. Mr' Gallaway: We will risk that.

Mr Wilkinson said it was very reasonable that Mr Nisbet should read the section of the act to mean that it had reference to future employment. There was an existing contract which he ought to respect, and that contract was in existence, and did not terminate till next January. If -his Worship would look at the industrial agreement it was perfectly silent as to existing agreements. Mr Gallaway said that Mr Wilkinson's argument in effect was that a contract between A and B could defeat a contract be tween B and C, which to his mind was on absurdity. If he (Mr Gallaway) had been trying to accentuate the case against Nisbet he would have dwelt very strongly on the fact that knowing- that lie had an agreement which ho thought could defeat the agreement between _ the employers and the union, (ie entered into that industrial agreement. Mr Wilkinson said that Nisbet believed that both the industrial agreement and the other agreement were good together. The defendant gave evidence to the effect that on condition of .Rawley "straightening up " he entered into an agreement with him to give him board and lodging for a year. By Mr Gallaway: He had received notices from the union with regard to Rawley, and also intimation from the workmen of their preparedness to give him a permit in respect of Rawley.

His Worship said the question was whether there had been a breach of clause 10 of the agreement, which read: "Employers shall employ only members of the Dunedin Painters' Industrial Union of Workers, or some other properly constituted union of painters." It had been shown that the man Rawley was neither a member of the Dunedin Painters' Union nor of any other properly contitutcd union of painters, and he had sworn that lie was working for the defendant for some clays before tho 21s£ July. He (his Worship) thought that the meaning of the clause was that the employer undertook that lie should not employ at work men who were not members of the union— that the clause did not refer to future engagements. He thought, there had been a breach of that. It wps. however, the first case of the kind, and he thought, it was very likely that Mr Nisbet at the time he signed the agreement thought ho would probably be able to keep the man working for him. The defendant was fined £1, with co&ts (525).