THE CONCILIATION BOARD.

Otago Witness, Issue 2734, 8 August 1906, Page 48

THE CONCILIATION BOARD.

MOTION FOR PROHIBITION. CROMWELL AND BANNOCKBURN

COLLIERIES COMPANY (LTD.) v. BOARD OF CONCILIATION. This matter, which came before Mr

Justice Cooper in the Supreme Court on Wednesday, as a motion to prohibit the Conciliation Board from sitting at Cromwell • to hea.r an industrial dispute between the , Otago Coal Mines Industrial Union of Workers and the defendant company. ' The motion was on the grounds that the , plaintiffs had never accepted any recommendation of any Board of Conciliation, and were not parties to or bound by any industrial agreement or any award of the Court of Aibitration with reference to the employment by them of coal miners; that no industrial dispute had in fact at any time arisen between the plaintiffs and the persons employed by them as coal miner* or between the plaintiffs and the Otago Coal Miners' Industrial Union of Workers as agents for any of the persons so eniI ployed that th« dispute alleged by the ' said application and referred to in the i ■said notice had never in fact existed, and I was not bona fide, and the said application and the proceedings thereon were an abuse of the provisions of the Act. The statement of defence denied that no industrial dispute had arisen, and said that on the contrary a dispute had arisen ; and that tho dispute referred to existed and had for some time existed and was bona fide, and that the said application and proceedings were in the pioper exeroise of rights, powers, and privileges of the defendants in due course of law. Mr Hoskiing for the plaintiff; Mr Barclay for the defendant union. Mr Hosking said that the case arose under th« Industrial Conciliation and Arbitration Act of 1905. The question was whether, on the facts as disclosed in the affidavits, there was an industrial dispute within the meaning of the act prior to the reference having been filed. Plaintiff submitted thai there was no industrial dispute, and that, therefore, the board had no jurisdiction. By Hollows'a affidavit it was shown that at the oeinning of August last ho roecived a letter from a miner employed by plaintiff, enclosing a list of 15 miners desiring to join the union. He had had a previous letter from John B. Cooper, but it was shown by plaintiff's j affidavit that Cooper had ceased to be in i I the plaintiff's employ sows time previously, j j Then apparently a brunch of the union , was formed at Bannockburn, tuici h-erioe th-© J present trouble. In October, 1905, Hol- | lows stated that he received from the secletarv of the Bannockburn branch a letter forwarding a reference disoussed by the general meeting to the secretary of the union at Kaitangata. The letter was curious. It was couched not in the spirit of men suffering under deplorable conditions of labour, or even of nven who were the subjects of dissatisfaction. In November, 1905. Hollows forwarded draft order of reference. The reference was finally agreed to. and settled about December 15, 1905. Th-en the «-i'crctary of the j Tinion wrote to the plaintiff company: — ' " Enclosed pl-ea*e find order of reference for your colliery. My committee would \ Ko pleased to enter into an mdustiial agree- ' m-ent on the lines laid down in reference." This was a bolt from the blue. There was no suggestion that at thio time the i employers had eten heard that a branch union had been formed. There was nothing to show that t.fie men had apuroaohed tb« union. Early in 1906 tn© branch union wrote complaining of delay. But it was nofc a complaint against the employers so much as against the union — that they had paid in their money to Mr Hollow&'s union, and were getting nothing j for it. I Mr Barclay : And that the employers [ had not been brought to book. ' Mr Hosking (continuing): After that the union «ent the employers a stand-and-deliver letter. There was no attempt whate\pr to negotiate. His Honor: It is not necessary that there should be a dispute with a particular workman. It is *uffioient that there should be a di3put© with the union. It may be a vice or it may bo a virtue in the act that the union can raise a dispute without oonsulriiig the employee or cmplover. Mr He-king: I submit that the union has no right to interfere unless authorised to

*do so by the men, in consequence of 4 dispute that His Honor : That may certainly be a. ground for the Arbitration Court dismissing a reference on the ground that it is trivial. The only thing I have to determine here is : is there some evidence of a. dispute between the union on the on« side and the employers on the other side.

Mr Hosking: I submit that there must be some evidence of a dispute, because it is a condition precedent that there shall be a dispute. The evidence must be sufficient to determine that there is a dispute. The position is the same as if a clerk goes to his master and asks for a rise of wages and the master says, " I cannot give it to you.'' It is submitted rhat that does .no* constitute a dispute between the clerk and his master. The action of the clerk may be for the purpose of seeing how nuch he can get. His Honor: Is there a correct analogy between the two cases? Here you have not an employee; you have a union. Mr Hosking: If a simple request by the union followed by a simple refusal by the employer is to constitute a dispute, thenall that need be done in any case is for a union to write" demanding so-and-so, and if the employer says he cannot do it, then in. mediately there is a dispute under the Arbitration Act. I submit that that is not 60. A dispute involves tho idea of strife. His Honor: If that is the ease, then the Arbitration Court for five years back ha 9 acted , in numbers of cases without i"r«f2 diction.

Mr Hosking said that -was probably, so. He submitted various dictionary definitions of "dispute," tending to show that "das-"; pute " -connoted strife.^ The whole position would be verjr different if the Arbitration! Act were an act to regulate trade ; and it was because it had been treated a3 an act - to regulate trade that so' many of these difficulties had arisen. The act was nob designed to enable unions to star up strife between workers and employers who w»ere> in agreement. (Federal High Court of Australia, re Pelaw Main Company.) As to the question of the nature or definition of a dispute, several cases were citod.

Mr Barclay said that during argumentmuch had fallen from his Honor to indicate to him that he need ■ not labour certain points that might be raised for the defence. To one point he should draw attention. Mr Hosking's suggestion that in order to give the Board of Conciliation jurisdiction it would be necessary m every case there should be proof of actual conflict between an employer and his individual employees was not tenable. Against that cases heard before the Arbitration Court might be cited from the books almost at ' random. The court would not issue prohibition unless it was made perfectly clears to the court tthat jurisdiction did not exist.

His Honor: Mr Hoskinsr is quite clear that he must satisfy me that there was no dispute.

Mr Barclay said the motion was under section 455. It was doubtful whether that section governed this matter, or whether the proper oourse was not to seek an injunction or an order to stay proceedings (section 452>,

His Honor: That rule would not applyin this oase. The Court of Conciliation cannot ho called an official body It is a body specially constituted, with certain < defined functions. The board approximated very closely to a court. Mr Barclay said that as to Mr Hosking'a simile of applying for a rise of salary, if the olerk had a court to which he could turn to get the question determined, ther clerk could take his dispute to that courc on his employer's refusal to consider his application. The term " industrial dispute," as used in the act, was really intended to cover every case in which there was practically a disagreement. There need not necessarily be " conflict " or " strife," in the sense in which Mr Hosking used the words. The act provided a way in which such a difference might be settled without reaching the stage of actual conflict or strife. His Honor : That being so, you have to show that there is such a difference of • opinion in this ca-se. Mr Barclay 3aid it would be observed from perusal of the various documents put in that it seemed to be perfectly clear thafc the union was approached by men employed in the company's minc6 because those men at that time were dissatisfied! with their lot. On that they formed a branch of the union at Bannockburn, with the definite object of getting an improvement in their conditions.

Mr Hosking : There is no evidence of that. His Honor : There is no distinot • evidence that that was the object; but thera is evidence later on that they were disap-. pointed because the union had not got something for them. The letter of the secretary Clunie clearly proved that. 16 could not be suggested that the union acted hastily. An order of reference was made, and the company absolutely declined: to acede to the men's demands. If that was not a dispute, what more could be suggested as necessary to constitute a dispute? It was not necessary in this case for defendant to prove that there was a dispute. It lay with the plaintiff to absolutely convince the court that there was not a dispute. If there was a conflict of evidence in the matter, then, according to law. the prohibition could not go. Mr Hosking said that if Mr Barclay's idea of " dispute " was the right one, then the name of the act should be altered. "Dispute" under this act must imply something of the nature of grievance or disaffection. There must bo something more than mere disagreement of mind. (L. and N.E. Railway v. Billington. 1802. App. ess. 79.) After further argument his Honor said he would take time to consider his decision.

What appears to be rather a serious epidemic of measles is at the present tim« prevalent among school children in Dunedin and suburbs. As a result the District Health Officer is circularising the various schools asking the head masters to keep a close watch for symptoms, and noj; t<* receive any children that have been absent from school for a week or more without their having a doctor's certificate to th« effect that they have either not been suffering from measles or that the period of infection has passed. In the Macandrew Road School from 60 to 80 children are reported to be affected, and the probability is that this school will be closed down for a period next week.