RULED AS SHOP ASSISTANTS

Southland Times, Issue 23544, 25 June 1938, Page 11

RULED AS SHOP ASSISTANTS

Departmental Heads

And Buyers

DECISION GIVEN BY MAGISTRATE . i COMPULSORY UNIONISM APPLIES A decision on an important industrial point was given by Mr R. C. Abernethy, S.M., in the Magistrate’s Court yesterday. He had to decide whether heads of departments or buyers are shop assistants within the meaning of the interpretation clause of the Shop Assistants’ Award, and' ruled that they are. Consequently the compulsory provisions of the Industrial Conciliation and Arbitration Amendment Act apply and they will have to become members of the union. The case was one in which the Otago and Southland Shop Assistants’ Union proceeded against William Corbet, William T. Hill and Charles Morgan Lewis for the recovery of contributions due to the union. It was decided to take all three cases together. Mr J. C. Mowat, of Dunedin, appeared for the union and Mr J. C. Prain represented the defendants.. Mr Mowat said the men joined the union and did not pay the contributions. They were being sued for one year’s contributions. William Walter Batchelor, secretary of the union, said the registered office of the union was in Dunedin. There was no branch in Invercargill, but Mr D. *W. Stalker acted as the agent. The three defendants applied for membership and their names were duly entered in the register of members. Corbet and Hill were employed as departmental heads in the firm of W. H. Boyes, Ltd., and Lewis was similarly employed by Thomson and Beattie, Ltd. The 5/entry fee only had been paid, by Corbet and Lewis. Hill had paid the 5/entry fee, a further sixpence and then 3/6. The defendants had not given him any notice that they had been, absent from their work because of sickness, accident or distress, and no notice of resignation accompanied by dues to date and the dues for. three further months had been received. Thomson and Beattie, Ltd., and W. H. Boyes, Ltd., were parties to the current Shop Assistants’ Award, both. being engaged in the retail shop-keeping industry in Invercargill.

CIRCULAR TO MEMBERS Mr Prain produced a circular issued to members of the union whose con- | tributions were a year in arrears. The circular stated that if the men were not members of the union their employers were committing a breach of the award. “The defence is that if the men were not compulsory unionists, that is, if they were not bound by an award or industrial agreement, then the contract between the union and the men is void,” said Mr Prain. If that contention was sound, the applications for membership would have to be considered by. the Court. In his opinion, the contract was entered into with mistakes on both sides and was, therefore, not enforceable. The question of mistake was deep rooted in the matter. He did not suggest for a moment tHat there was any intent to defraud on the part of the secretary. Representations were made to these men about their classification under the existing award and the provision of the compulsory unionism clause. Those representations were wrong. The Magistrate: In other words, the representation meant that if the men did not join the union they would lose their employment. Mr Prain: Yes.

Charles Morgan Lewis, a departmental head and buyer for the firm of Thomson and Beattie, Ltd., gave evidence. When the amendment of the Act came in, he said, he was told by Mr Stalker that he was compelled to join the union. However, he did not agree because there was no provision for departmental heads in the ward. Several other buyers were in the same frame of mind and a letter was sent by one of them to the Minister of Labour asking for information. A letter was subsequently received from the Minister, who said that they did not have to become members of the Union.

After a short adjournment, Mr Prain said that the evidence would be the same in all thrfee cases and there would be no necessity to call any more. JUDGMENT SOUGHT Mr Mowat moved for judgment on the following grounds: “That the mistake was one of law and would not invalidate the contract; that the statement made by the union secretary was also one of law, and the men were bound to join the union under the provisions of the Industrial Conciliation and Arbitration Amendment Act, 1936.” David William Stalker, the union’s agent in Invercargill, said that he interviewed Corbet and told him that it was necessary for him to join the union. However, he did not agree and considered that as a departmental head he was exempt from the provisions of the award. Witness said that when he found that Corbet would not join he left the application form With Mr Boyes. Subsequently, Corbet signed the form. He also informed Hill and Lewis that they were obliged to become members of the union, but found that they were of the same opinion as Corbet. It was contended by the three defendants that they had joined the union under a mistaken apprehension that they were obliged to do so and that they had been induced to join because of representations to this effect made by the local agent of the union, said Mr Mowat. He submitted that there was no mistake and that the representation was correct. But even apart from that it could only be a mistake of law or a misrepresentation as to law, neither of which were grounds for avoiding the obligation imposed by the contract. Mr Mowat submitted that the three defendants were all obliged to become members of the union, and were still obliged to be members of the union under the provisions of the Industrial Conciliation and Arbitration Amendment Act, 1936. When that Act was originally brought down it made it unlawful for any employer to continue to employ in his industry any employee who was not a member of a union. Later on, the Statutes Amendment Act, 1936, restricted this obligation to those workers employed in any position or employment subject to an award. Both the original provisions of the Amendment Act and the provisions as subsequently amended obliged all departmental managers to become members of a union. EMPLOYMENT IN INDUSTRY “In the case of all three defendants, there is no possible doubt that they were employed in the industry to which the award relates,” continued Mr Mowat. The defendants had not con-

tended that they were not engaged in that industry. Consequently, in July 1936, they were obliged to and entitled to become members of the union. But even after the compulsory legislation was amended they were still obliged to be members of the union, because they were all employed in positions subject to an award. A shop assistant was defined as a person engaged in the capacity of the reception, display, sale or delivery of goods or orders for goods in retail establishments. The defence clearly showed that all the defendants were engaged in the sale of goods, the reception of goods and the delivery of orders for goods. Some difficulty had arisen because in the 1927 and 1930 awards the classification of shop assistants had included specific reference to departmental managers, continued Mr Mowat. This reference had been dropped in the 1932 and 1935 awards, but the definition of shop assistants was still exactly the same. A mere alteration in classification could not limit the scope of an identical definition. Departmental managers were now included as seniors in the current award. Furthermore, the definition of seniors had always included departmental managers, even if they were separately classified. This was stated by Mr Justice Frazer in an interpretation of the 1927 award which was delivered in 1928.

Mr Mowat submitted that the three defendants and all departmental managers and manageresses were shop assistants within the definition of the award and were obliged to join the Shop Assistants’ Union under the 1936 Amendment Act.

The Magistrate said that he adopted the argument put forward by Mr Mowat. He was inclined to think that there was a mistake of law and not of fact and he supported plaintiff’s intention that the three men were members of the union and were compelled to pay their dues. Under clauses 1A and 2A of the award it was quite clear that the defendants were shop assistants and came under the definition of seniors. They were bound by the award and compelled to pay their dues. The Magistrate congratulated Mr Mowat on the conclusive arguments he had put forward in a case that affected so many workers and was of such wide interest.

The three defendants were ordered to pay their dues and each was ordered to pay 10/- costs, with solicitors’ fee 7/-.