UNION STEAMSHIP CO. LTD., 19 M.C.R. 100. [New Zealand.]

See also 2B. Apprentices.

8c. Industrial Union.

9c. Jurisdiction.

13A. Wages.

4.-DISMISSAL OF EMPLOYEE.

NEW SOUTH WALES.

He

Dismissal of employee-Provision requiring person charged to prove his innocenceEmployee entitled to the benefit of an award.After employment for some time as assistant, R. alleged that he was given the duties previously performed by a pastrycook, who had left defendant's employment, but R. was still paid at the assistant's rate. gave particulars of his duties to an industrial inspector, who informed the employer that a breach of the Pastrycooks, etc. (State) Award was being committed in not paying R. at the pastrycook's rate. The employer thereupon allotted him his former duties as assistant, and a fortnight after he was told that he should not have informed the inspector and was then discharged. Proceedings against the employer, instituted by the employees' union for a breach of s. 52 of the Industrial Arbitration Act 1912, for discharging R. for the reason that he was entitled to the benefit of an award, were dismissed. Observations regarding the statutory provisions by which the onus of proof of innocence is imposed upon a person charged with an offence. FEDERATED PASTRYCOOKS EMPLOYEES' UNION OF AUSTRALIA, N.S.W. BRANCH v. GARTRELL, WHITE LIMITED, 1924 A.R. 5. [New South Wales.]

5.-HOLIDAYS.

NEW SOUTH WALES.

Annual holidays-Award of one week's holiday without pay for one year's service.—— An appeal by the Employees' Association against the award of one week's holiday without pay to all employees with not less than twelve months' service, provided the union supplied a substitute at ordinary rates, on the ground that the right of employers of awarding annual holidays as a reward for faithful service and a stimulus to efficient labour should be preserved and continued in the industry, was dismissed. In re SHOP ASSISTANTS (METROPOLITAN AND NEWCASTLE) BOARD, 1923 A.R. 129. [New South Wales.] Same case on another point, 10. ence to Unionists.

See also 3D. Award.

6.-HOURS.

Prefer

NEW SOUTH WALES. Hours-Provision for five-day week during portion of the year-Agreement with body of employers.-The Court refused to insert

in a new award a provision for working a five-day week during portion of the year, which had been agreed to by the employees' union and a body of employers representing a substantial, though not an overwhelming, section of the trade. In re PAINTERS, ETC. (STATE) BOARD, 1923, A.R. 174. [New South Wales.]

Hours-Industry governed by Federal award -48 hour week in Tramway Traffic Service— Effect of election to proceed in the Federal jurisdiction. On an appeal by the employees' union against the award by Rolin, J. (1923 A.R. 69), restoring the 48 hour week in the Tramway Traffic Service, in accordance with the provisions of the Eight Hours (Amendment) Act 1922, it appeared that the union had secured an award for its members from the Commonwealth Court of Conciliation and Arbitration. Held, that the appellant union was not entitled to an award of this Court after electing to procceed in the Federal Court. By Curlewis and Beeby, JJ.: That this Court will not supplement the Federal Court's jurisdiction in regard to matters not within its scope when a union has elected to proceed in such jurisdiction. Award varied by providing that the prescribing of 48 hours per week instead of 44 should not prejudice the appellant union in any future proceedings in this Court on the issues involved. Appeal otherwise dismissed. In re GOVERNMENT TRAMWAY (TRAFFIC) Award, 1923 A.R, 179. [New South Wales.]

Hours-Increase of hours of textile workers -Health, comfort, or well-being of employees -Expert medical evidence.-An_application having been made to increase the ordinary working hours of employees in the textile industry from 44 to 48 per week, as prescribed by the Eight Hours (Amendment) Act 1922, the employees raised the issue that their "health, comfort, or well-being" justified fixing such hours below 48 per week, and tendered evidence regarding the conditions of employment in the industry. The Court held, that a prima facie case had been made out by the employees and ordered that the matter should stand over generally to permit of an independent expert being appointed by the Government to investigate the conditions in the industry, and give evidence. In re TEXTILE WORKERS (STATE) BOARD, 1923 A.R. 187. [New South Wales.]

Hours Ordinary working hours of burners in the brick and roofing-tile-Public interest. -Upon application by the employees' union for reduction of the hours of employment of burners in the brickmaking and roofing tile making industries, the Court held on the evidence that the public interest did not require such employees to work more than the standard 48 hours per week as prescribed in the Eight Hours (Amendment) Act 1922, and varied the awards governing the conditions of employment in the industry accordingly. In re BRICKMAKERS' (CUMBERLAND & COUNTRY) BOARD, 1923 A.R. 191. [New South Wales.]

Hours during which firemen are required to remain on call-Two-platoon systemOvertime-Appeal from award. By an award made on 1st June, 1923 (1923 A.R. 83), employees of the Fire Brigades Board were required to be in attendance at the various fire-stations in the Sydney Fire District for 120 hours, and were entirely relieved from duty for 48 hours each week. Upon appeal, the employees claimed an average of 84 hours weekly for total relief from duty, as well as for service, which meant in effect the adoption of the two-platoon system. The evidence at the hearing showed that the housing system adopted by the employer, whereby provision was made for housing employees at or near the fire-stations, resulted in efficiency as well as economy. The Court dismissed the appeal. A claim for overtime having been raised for the first time on appeal, was not entertained. In re FIRE BRIGADES EMPLOYEES (STATE) BOARD, 1923 A.R. 218. [New South Wales.]

Hours-Appeal from award-Breaking of shifts-Overtime.-An appeal was made by the employees' union against certain clauses in the award for locomotive drivers, firemen, cleaners, etc., made on 23rd August, 1922, rescinding and replacing the previous award for such employees, on the grounds, (inter alia) that (1) employees were not guaranteed a full week's pay for each week started; (2) the practice of breaking the employees' shifts was permitted; (3) when employees were not "booked off" in accordance with the award's provisions they should be paid for the day upon which such booking off happened; (4) overtime rates should be time and a half in lieu of time and a quarter. Held, that as the whole appeal was really and substantially a claim that the rates of pay should be dealt with and fixed as if there had never been a previous award, and as if the circumstances of their employment had never been considered, the appeal should be dismissed. By Edmunds and Curlewis, JJ. : As to grounds 1, 2, and 4, the conditions of the railway service having always been as they are at present, the presumption is that when the rates were fixed all the circumstances were given consideration, and the amounts awarded were intended to give a fair remuneration in view of all the conditions obtaining in the occupations covered by the awards. As to the third ground, leave should be reserved to the employees to reapply for consideration of this matter, if they can suggest a practical remedy which is not merely a claim for more pay. By Beeby, J. : Leave should be reserved to the employees to apply for reconsideration of wage and overtime rates. Wages for ordinary hours should be fixed on the understanding that overtime is to be paid for at time and a half rates. In re GOVERNMENT RAILWAYS (Loco. ENGINE DRIVERS) AWARD, 1923 A.R. 225. [New South Wales.]

Hours Restoration of 48-hour week in the printing indutry, subject to the observance of precautions against lead poisoning—

Health, comfort or well-being of employees— Eight Hours (Amendment) Act 1922, s. 3.— An application by the employers in the printing trades industry for an increase of the ordinary working hours of employees from 44 to 48 per week was resisted by the employees' union on the ground that owing to the risk of lead poisoning, the health, comfort, and well-being of the employees justified the retention of the shorter hours. The medical evidence submitted was to the effect that the enforcement of proper working conditions would be more beneficial to the health of employees than the shorter working week. The Court thereupon invited the medical experts to draw up a code of rules for the proper working of the industry, and ordered that in shops which observed such rules, the week's work should consist of 48 hours and in other shops 44 hours. In re CoмPOSITORS, ETC., MALES (CUMBERLAND AND NEWCASTLE), STEREOTYPERS AND ELECTROTYPERS (CUMBERLAND AND NEWCASTLE), LETTERPRESS, MACHINISTS (CUMBERLAND AND NEWCASTLE), AND PRINTING EMPLOYEES, FEMALE (CUMBERLAND AND NEWCASTLE) AWARD, 1924 A.R. 59. [New South Wales.] See also 11c Strike.

7.-INDUSTRIAL BOARD.

NEW SOUTH WALES.

Industrial Board-Application for variation of constitution-Lorry and motor waggon drivers. Following upon the interpretation given in In re Engine Drivers, ctc., General (State) Award (1923 A.R. 192), that the terms "motor lorries " in that award included steam-propelled lorries, application was made by the Federated Engine Drivers and Firemen's Association for the variation of the constitution of twenty-four industrial boards, by adding thereto the words excepting drivers of steam waggons or steam lorries.' Held, that the term lorry or motor waggon driver" in the industrial boards' constitutions is used without discrimination in respect of motive power, and includes the drivers of such vehicles whatever the power may be. The application should be dismissed, but the applicant union should not be prejudiced by such dismissal, if its effect is to create an unjust position by bringing present members of such union within the scope of other unions, In re AERATED WATERS, ETC. (STATE) BOARD. 1923 A.R. 193. [New South Wales.]

66

8.-INDUSTRIAL UNION.

A. NEW SOUTH WALES.

Industrial union-Application for cancellation of registration-Power of Court to determine "industrial interests "' of unions.Two industrial unions had as members professional officers in the employment of the Metropolitan Board of Water Supply and Sewerage. An application by the Board for the cancellation of the registration of one union, or alternatively a direction that its

constitution be amended to exclude from membership employees of the Board, with a view to removing the inconvenience alleged to result from the representation of the same interest by two unions, was dismissed. Quaere, as to whether the Court has power under s. 14 (5) of the Industrial Arbitration Act 1912 to determine as between two unions the "industrial interests of such unions involved in claims made upon the Board in respect of its professional officers, and to give directions that representation in regard to such claims should be exercised by one of the unions only. Assuming that the Court had such power, it should be exercised only on proof of a serious mischief incidental to the special circumstances of the case. In re WATER SUPPLY & SEWERAGE EMPLOYEES' (METROPOLITAN) BOARD & PROFESSIONAL OFFICERS' ASSOCIATION OF N.S.W., 1923 A.R. 155. [New South Wales.]

B. WESTERN AUSTRALIA.

Rules of industrial union-Strike-Resolution ultra vires-Voting of funds to relieve distress-Injunction. The rules of the defendant union provided that no part of the funds or property of the union should be paid or applied for or in connection with or to aid or assist any person engaged in any strike; and also that before any sum exceeding twenty-five pounds was paid out in pursuance of a resolution carried at a general meeting of the members the question of payment should be referred to a ballot. In August and September, 1922, there was a strike of printing employees. On 7th September, 1922, at a meeting of the defendant union, a resolution was passed to the effect that a sum up to £250 be voted to the disputes' committee to recoup it for any amounts paid out to relieve distress. The question of payment was not referred to a ballot. The plaintiff, on behalf of himself and all other members of the defendant union, commenced this action against the union and its officers, claiming a declaration that the resolution and all payments out of the funds of the union to aid or assist the strikers were ultra vires, and injunction, an order for repayment and an account. Held, that upon the passing of the resolution the plaintiff was entitled to invoke the aid of the Court to restrain the defendants from giving effect to it.

SCHOE V. WESTERN AUSTRALIAN BRANCH OF THE PRINTING INDUSTRY EMPLOYEES' UNION OF AUSTRALIA, 1923 W.A.L.R. 141. [Western Australia.]

New Zealand Waterside Workers' Federation shall at all times do all that is reasonably possible to secure that any member thereof without work will accept any work offered to him which is of the kind usually taken by such worker, and that every member thereof shall carry out his obligatons to the employer." The proceedings were taken under ss. 13 and 14 of the Industrial Conciliation and Arbitration Act (Amendment) Act 1908. Held, that the clause did not impose any legal liability or obligation-a breach of which renders members of the executive or the executive or possibly even the union liable to a penalty for breach of the award. INSPECTOR OF AWARDS v. SYMON, 19 M.C.R. 14. [New Zealand.]

66

99

Industrial union- Membership — Member obtaining a "clearance '-Allegation that he had rejoined union-Claim for subscriptions-Estoppel.-Defendant was a member of a trade union and on 22nd August he received from the secretary of the union a clearance," that is a certificate which showed that all his dues to the union were paid up to that date and also ended his membership thereof. He stated that he did not afterwards renew his membership or pay anything into the union. The secretary swore that in the following November defendant paid him 2/- and promised to return the "clearance." The method of becoming a member of the union provided by the rules was by written application to the treasurer secretary and the payment of 2/6. On a claim for arrears of subscriptions since the alleged payment of 2/-. Held, that even if the statement of the secretary had been proved it would not make defendant's reentry valid in the absence of payment of subscription or acts sufficient to estop defendant from denying his membership and that the union was estopped from claiming that he was a member thereof. AUCKLAND & SUBURBAN LOCAL BODIES' LABOURERS & RELATED TRADES INDUSTRIAL UNION OF WORKERS v. KRONAST, 19 M.C.R. 81. [New Zealand.]

Industrial union Status as member conferring preferential right to employment"Defence or fighting fund" Levy-Ultra vires and irregularly imposed-Purported confirmation-Refusal by member to pay— Wrongful expulsion-Mandamus-Injunction -Damages.-An incorporated industrial union which wrongfully removes a person's name from its register of members and prevents that person from participating in the benefit of an industrial agreement between the union and employers under which members of the union have a preferential right of employment commits as against that person an actionable wrong, entitling him not only to a mandamus and an injunction, but also to damages. Flowers v. Wellington Wharf Labourers' Industrial Union (13 G.L.R. 453); Osborne v. Greymouth Wharf Labourers' Industrial Union (30 N.Z.L.R. 634; 13 G.L.R. 569); Chaplin v. Young (31 N.Z.L.R. 214; 14 G.L.R. 435), and McGregor v. Young (1920

due, and he therefore had no jurisdiction in respect of it; and that, as to the balance of the claim, the complainant was not "efficient within the meaning of the award. Upon appeal by complainant to the Court, by way of case stated, the respondent bank raised two preliminary objections:-1. That as to the first-mentioned portion of the claim, no appeal lies by case stated from a mere refusal to exercise jurisdiction; and 2. That as to the balance of the claim, no appeal by case stated lies on a question of fact. Held, that 1. The question of the time within which proceedings must be brought under s. 49 (2) of the Industrial Arbitration Act 1912, is one of jurisdiction, and appeal by way of case stated does not lie in a case where an Industrial Magistrate has held that he has no jurisdiction (Johnson v. Gibbings (16 N.S.W.L.R. 27), applied). Although the wording of s. 55 of the Industrial Arbitration Act 1912 differs from that of s. 101 of the Justices Act 1902, the intention is to confer a similar right of appeal to that given under the latter Act to the Supreme Court. 2. The appeal to the Court provided by s. 55 of the Industrial Arbitration Act 1912, relates only to questions of law; no appeal by case stated lies on a matter of pure fact. Preliminary objections by respondent upheld. MORISON v. BANK OF AUSTRALASIA, 1923 A.R. 199. [New South Wales.]

Contract of service-Industrial Arbitration Award-Jurisdiction of Police Court to enforce payment of wages fixed by award-Masters' and Servants' Act 1892.-See MASTER AND SERVANT, col. 318.

B. SOUTH AUSTRALIA.

Mandamus-Refusal of jurisdiction—Decision-Industrial Code 1920, s. 52. On the hearing of a submission in respect of wages and conditions of work under the Industrial Code 1920, an application was made by the employees for a declaration of the monetary value per week of certain alleged allowances On 13th February, 1923, the President of the Industrial Court after having heard the evidence and inspected the works, gave reasons for judgment. In these reasons he stated that the allowances were camp allowances, and that s. 5 of the Code expressly excluded him from making an assessment of such allowances. He also found that the works were a camp. Liberty to speak to the minutes of the award was reserved, and on the day when the reasons for judgment were given counsel for the employers applied for a case for the opinion of the Supreme Court whether the allowances were allowances of which the Industrial Court was required to declare the monetary value. On 15th February, 1923, there was further discussion before the President whether a case should be stated, and it then appeared that the President did not regard the conclusions in the reasons for judgment as final, but as open to further discussion and alteration. On this discussion the President was of opinion that the question he had been asked

to state was not a question of law, and that the employers had the remedy of mandamus. Counsel for the employers expressed a doubt whether a refusal to excuse jurisdiction could be called in question. The President said he did not propose to make any award, order or decision, and on counsel contending that this constituted a decision in the circumstances, the President stated that he did not think it was a decision binding on the Supreme Court, and said he thought he would be exceeding his jurisdiction if he assessed camp allowances. On 23rd February, 1923, the award was finally made, and included no declaration as to the monetary value of any allowances. Held, on these facts, that the President had come to a decision, and that mandamus would not lie. R. v. INDUSTRIAL COURT ; Ex parte THE HUME PIPE COMPANY OF AUSTRALASIA LIMITED, 1923 S.A.S.R. 358. [South Australia.]

C. NEW ZEALAND.

Award of Arbitration Court-Provision as to work and pay of Waterside Workers— Jurisdiction of Arbitration Court-Prohibition -Certiorari.—The New Zealand Waterside Workers' Award, made 17th November, 1922, provided-cl. 23 (a): Any man starting work must finish the particular ship or job for which he is engaged, or any other ship or job to which he may be transferred as provided by this award, before accepting other employment." Cl. 23 (b): Men employed on ships, wharves, or lighters for six hours continuously in any one day (other than Saturdays), or for three hours continuously on a Saturday (except in either case on the first day of the ship's working), may, at the expiration of the above mentioned six hours or three hours, as the case may be, be ordered back for a later hour or for the following day without payment for the intervening time or any portion thereof." The plaintiffs applied to the Supreme Court for a writ of prohibition to prevent the Arbitration Court enforcing the award, or, in the alternative, for a writ of certiorari. Held, 1. That although .s 96 of the Industrial, Conciliation and Arbitration Act 1908, provided that 'No award, order, or proceeding of the Court shall be liable to be reviewed, quashed, or called in question by any Court of judicature on any account whatsoever," yet that section must be read subject to the proviso that the award, order, or proceeding so protected from examination was an award, order, or proceeding within the jurisdiction of the Arbitration Court, and that certiorari would go to bring into the Supreme Court an industrial award in respect of an excess of jurisdiction. Clancy v. Butchers' Shop Employees' Union (1 C.L.R. 181) followed. Blackball Miners v. Judge of the Arbitration Court (27 N.Z.L.R. 905; 10 G.L.R. 633) distinguished. 2. Per Salmond, J., and Reed, J.-That prohibition would not go to restrain the Court of Arbitration from enforcing an ultra vires award where no proceedings were being presently taken either in that