E. J. CABEY.j

89

I.—9a.

To further gauge tho position an interpretation of clause 14 of our award was sought from the Court itself. The Court has filed tho following answer, dated 16th September, 1912 :— " The effect of tho Shops and Offices Act, 1910, was to alter the hours of work fixed by the award. So far, however, as related to hotels and restaurants governed by any award then in force, section 11 suspended the operation of tho Act until the expiration of tho period for which such award was made. On the expiration of that poriod the alteration in hours took effect; then clauso 14 of tho award came into operation, and the other provisions ceased to operate. The position, thorofore, is that, subjoct to legislative provisions on the subject, the hours of work, wages, and other conditions of work of the workers coming within tho scope of tho award have to be fixed by agreement between each employor and the individual workers employed by him." We take this answer to moan the Court of Arbitration holds that we have now an award the single provision of which is tho second paragraph only of clause 14 of our intorfered-with and apparently riddled award. Paragraph (6) of clauso 14 (tho single provision of the award) grants to workers under tho award not one solitary working restriction other than would othorwiso obtain in tho trado were thore no industrial union, no Court of Arbitration, or no award in existence. It grants to hotel workers in Wellington organized in an industrial union, loyal to the Act and Court, no more protection, no more regulation, no better or variod conditions of labour than obtains in hotels on the west coast where there is no industrial union of hotel workors in existence. Has the Court acted within the ambit of its jurisdiction ? Section 20 of the main Act gives the Court wonderful powers re dealing with industrial matters, but is not the insertion of clause 14 in the award, and the interpretation put on it by the Court, a violation of tho scheme and spirit of the Arbitration Act, as set out in sections 90 (d) and 74 quoted above ? Has not the Court exceeded its statutory powers ? Is this second part of clause 14 an award within the meaning of the Act; or, even if the Court later on holds that in addition to clause 14 the statute provisions, the hours, and holidays are now incorporated in the award in substitution of the former hours-of-labour clause of the award, would that strengthen tho judgment as an award within tho Act ? If a union applied to the Court of Arbitration for an award in regulation of labour conditions in its trade and the Court gavo judgment as follows, together with list of parties and term of award, this single provision—" Subject to any legislative provision on the subject, the hours of work, wages, and other conditions of work of all workers coming within the scope of this award shall be fixed by agreement botween each omployor and the individual workers employed by him " —would that be an award ? Finally, has the Court overridden sections 90 (d) and 74 of the Conciliation and Arbitration Act ? On these matters we ask your opinion and advice. Yours respectfully, for the union, E. J. Carey, Secretary. Opinion : Wellington Cooks' and Waiters' Award. Clause 14 of the award made on the 15th day of July, 1910, is the second-last clause of the award. The whole of the operative part of the award determining hours of work, wages, and other conditions of work is contained in the thirteen preceding clauses. The currency of the award is fixed by the last clause (15). Clause 14 was thorofore not necessary for the purpose of declaring the currency of the award. Its provisions—when they came into operation by the happening of the condition mentioned therein—cannot be said to fix the hours, wages, or conditions of labour at all, for it relegates all matters commonly dealt with by the Court to private contract. Now, this condition is a provision that " the provisions of this award shall continue in force until any change is made by legislation in any of tho conditions fixod by this award." And upon the happening of this condition, the clause goes on to provide that all the foregoing provisions of the award (that is, all the operative provisions except 15, the currency clause) shall cease to operate, and that thoroaftor during tho term of the award the following provisions shall bo in forco : " Subject to any legislative provisions on the subject, the hours of work, wages, and other conditions of work of all workers coming within the scope of this award shall be fixed by agreoment between each employer and the individual workers employed by him." Now, I think it is dear that tho offect of this clause (assuming it to bo valid at all) is, upon the happening of the condition, to destroy the award ; for an award which declares that the hours of work, wages, and other conditions of work shall be fixed by agreement between each employer and the individual workers employed by him is no award : itis tho negation of the purposes of an award. If, therefore, clause 14 has any legal effect at all, it is to qualify clause 16, determining tho currency of tho award, and to make the continuance of the award conditional upon another contingency —viz., that oxpressed by clause 14. Upon this assumption, then, the position would be that, immediately a change were made to take effect by the Legislature in any of the conditions of the award, the award would ipso facto determine, and the parties be at liberty to proceed for a new award. Under this head the question arises, Has any change boen made by legislation in any of the conditions fixed by the award ? It may be admitted that the Shops and Offices Act Amendment Act, 1910, does this, but the effect of section 11 of that Act must be considered. It provides that " Notwithstanding anything in this Act, any award of the Court of Arbitration relating to hotels or restaurants in force on the passing of this Act shall continue in force for the period for which it was made as if this Act had not been passed." The words " the period for which it was made " may, by virtue of the provisions of section 90 (d) of the Industrial Conciliation and Arbitration Act, 1908 (Consolidation) moan oither (a) the poriod specified in an award, (i>) the poriod specified plus the period until a new award has been entered into. The expression is the same as that contained in subsection (1) of section 74 of the Industrial Conciliation and Arbitration Act, 1908. I am of opinion that the intention of the Legislature was that the legislative provisions should supersede those of the award immediately upon the expiry of the specified period ; and the effect of the Shops and Offices Amendment Aot, 1910, in conjunction with the said proviso to section 90 (d) of the Consolidation Act, is this : that the legislative provisions took effoet on tho 2nd day of August, 1912 (that is, the day after the expiry of the specified period of the award—namoly, the Ist day of August, 1912). But by virtuo of soction 90 (d) the award continuod in force after that expiry, and therefore there was a change made by legislation in tho conditions of tho award of that date. Still, assuming tho validity of clause 14, the offect therefore would be to determine the award in toto as from tho 2nd day of August, 1912, and consequently to negative the offect of section 90 (d). In my opinion, therefore, if the clause is valid it puts an end to the award on the 2nd day of August, 1912. Tho further more important and difficult question remains : Is clause 14 a valid provision ? The matters which an award is to provide for are specified by section 90 of the consolidated Act, and the object andjeffeet of clause 14 being to put an end to the award it may be said to be a provision relating to the currency of the award. Without doubt clause 15 specifically provides for tho currency of the award ; and if it was intended to qualify this in an ordinary way, the qualifying proviso would have followed clause 15. It may, however, be put this way : that the duration of the award is to be two years, plus the period intervening beforo a new award is made, unless during this period legislative amendments are made, in which case the award shall remain in force only till the change is made by Legislature. That is the effect of the clause. Itis straining language to attempt to say that the award remains in force after this. The Court has a discretion to make or refuse an award (vide the Agricultural and Pastoral Workers' case). But if clause 14 is not to have the effect I have stated then the Court has a third course—namely, to bind the parties down to abide by conditions of private contract for a'specified period, and so prevent them from renewing their application for an award for three years, and so on ad infinitttm. Ido not think the Court has any such power ; it would stultify the Act, and be as absurd as to say that a Court of law could docline to decide between parties and declare that its determination of the suit shall bo such agreement as the parties shall come to. Clearly the Court of Arbitration cannot

12—1. 9a.