AWARD SET ASIDE

Sun (Auckland), Volume III, Issue 726, 27 July 1929, Page 9

AWARD SET ASIDE

COMPULSORY UNIONISM CLAUSE ILLEGAL FULL COURT’S DECISION Press Association WELLINGTON, Friday. The Full Court has given judgment in the case of Arthur Edwin Butt, of Invercargill, tobacconist; Vivian Simeon Jacob, of Uunedin, tobacconist, and the Uunedin Tobacconists’ Industrial Union of Employers, plaintiffs, against Air. Justice Frazer, Air. George Thomas Booth and Air. Alexander Lamont Alonteith, members of the Arbitration Court. The appeal was -Allowed. Plaintiffs moved to have the Uunedin, Oamaru, Gore and Invercargill Tobacconists Assistants’ Award moved into the Supreme- Court and certain part 3 thereof examined and quashed by the court. The award was made on August 4, 1927, and by a subsequent order made on Alarch 12, 1929, the Arbitration Court altered the terms of the award to the effect that all persons employed as assistants in hairdressers’ and tobacconists’ shops within the area affected by the award must become members of the Otago Hairdressers’ and Tobacconists’ Assistants’ Industrial Union of Workers; that all such assistants not becoming members of the union should be dismissed from employment and only members of the union be employed by such tobacconists and hairdressers. EMPLOYERS’ CONTENTIONS

The employers attacked alterations of the award on the grounds (1) that they did not consent to the order varying the award and such consent is necessary by law; (2) that the alterations were beyond the jurisdiction of the Arbitration Court (inter alia) because the provisions amounted to the creation of compulsory unionism; (3) that the order placed an unwarranted restriction on employers in the choice of employees. The Full Court held that the appeal should be allowed and the writ of certiorari asked for by appellants granted. The Chief Justice, the Hon. Al. Myers, and Justices Herdman, Adams, Blair and Smith all held that the Arbitration Court had gone beyGnd its jurisdiction when altering the award by the order complained of. Accordingly the whole order was quashed but without any order as to costs.

Mr. J. F. B. Stevenson appeared for the plaintiffs, and Mr. F. W. Ongley for the defendants.

The real question for determination, said the Chief Justice, in his judgment, was whether the order made by the Court of Arbitration was within the jurisdiction of that court. In his Honour’s opinion the point was concluded by a decision of the Court of Appeal in 1916 in the case Magner v. Gohns. That decision was to the effect that the inclusion of a clause in an award which would have the effect of compelling workers in the industry affected to join a union was not within the power of the Arbitration Court. POWERS OF THE COURT “In my opinion,” said the Chief Justice, “there is no jurisdiction to make an award forbidding employers to employ in any trade affected by suqli award any person who is not a unionist. I am unable to see that the Arbitration Court can possibly have jurisdiction to make in an order under section 92 of the Act purporting to amend the award a provision which it has no jurisdiction to make in the award itself.”

In his judgment Mr. Justice Blair, who, while Mr. Justice Frazer is in Australia, is presiding over the Arbitration Court, stated: “The ordinary clause conferring preference to unionists gives them the first right of employment as against non-unionists, and it provides also that if an employer has in his employ a non-unionist, and there is a unionist willing and able to perform the work performed by such nonunionist then the employer must dismiss the non-unionist and employ the unionist in his place. “This clause confers no monopoly of employment on unionists, but is limited to preference only. It must be remembered that if there is jurisdiction in the Arbitration Court to grant a monopoly of employment to unionists it would follow that there would bo jurisdiction to grant to employers’ unions a monopoly of work and to forbid non-members of employment asspciations engaging in the industry. This remark is true both of employers and of workers that specific power is given to the court to grant them respectively preference of service or preference of employment over non-unionists, but nowhere in the Act is there any specific provision granting monopoly of work or employment.