Definitive Report - Report No 12, 1954

Case No 21 (New Zealand) - Complaint date: 01-NOV-51 - Closed

• Request from the New Zealand Waterside Workers' Union for the Reopening of Case No. 21 (New Zealand)

A. Summary of the Case

• Decision with Respect to the Original Case Presented against the New Zealand Government
  517. 517 Complaints presented by the New Zealand Waterside Workers' Union, the World Federation of Trade Unions and other organisations against the Government of New Zealand were examined by the Committee at its meeting of 10-12 January 1952, when it decided that the New Zealand Government should be asked to supply certain further information, and again at its following meeting (6 and 7 March 1952), when the Committee had this further information before it. At the latter session the Committee recommended the Governing Body to decide that the case did not call for further examination, and this recommendation was approved by the Governing Body when it adopted the Committee's Second Report at its 118th Session (Geneva, 11-14 March 1952).
• Request by the New Zealand Waterside Workers' Union that the Case Should be Reopened
  518. 518 At its meeting on 1 and 2 December 1952 the Committee was informed that Mr. R. E. Doré, an official of the New Zealand Waterside Workers' Union, had addressed two letters to the Director-General, dated respectively 15 April and 5 October 1952, in which he claimed that the reply to the complaints made by the New Zealand Government was untrue and requested, for reasons stated at length in his letters, that the case should be reopened.
  519. 519 The Committee requested the Office to ascertain whether Mr. Doré's letters contained new facts and evidence and to inform the Committee on this aspect of the matter, so that the Committee might decide what further action, if any, it should take in the case.
  520. 520 At its meeting on 20 and 21 February 1953 the Committee, before considering the question whether the above letters from Mr. Doré contained any new elements which might justify a reopening of the case, requested the Director-General to communicate with the complainant organisation to ascertain whether the said letters were written on behalf of and with the authority of the organisation. The Director-General wrote accordingly to the New Zealand Waterside Workers' Union on 24 March 1953. The Union replied by a letter dated 8 April 1953 and signed by its President, stating that Mr. Doré's letter of 15 April 1952 was written with the President's full cognizance and on the authorisation of the Union. With his letter he enclosed a further letter dated 12 April 1953 from Mr. Doré. The Office thereupon prepared the analysis of the complainant's communications as requested by the Committee (see paragraph 519 above).
• Analysis of the Complainant's Letters of 15 April and 5 October 1952 and 12 April 1953
  521. 521 The complainant put forward the following points relative to the Government's replies with respect to the different allegations contained in the original complaints.
• Alleged Restriction of the Right to Strike
  522. 522 Before the deregistration of the union the position was that claims by dockers for wage increases had to be submitted to the Waterfront Industry Authority and not to the Court of Arbitration under the Industrial Conciliation and Arbitration Act. It was not until a considerable time after this Authority had awarded the waterside workers an increase of three pence per hour that the Court of Arbitration, in January 1951, made an order awarding an increase of 15 per cent to workers in general. The employers refused to give the 15 per cent increase to the waterside workers unless their earlier increase of three pence per hour was first deducted from their current earnings. The union decided to work only a 40-hour week until the employers should agree to negotiate and the employers replied by saying that they must work a 59-hour week or not at all. In effect, therefore, the workers did not strike but were locked out.
• Allegations relating to the Ban on Union Meetings and on the Union Press
  523. 523 The Government's statement that only meetings relating to the prohibited strike were banned was, according to the complainant, untrue. Opposition Members of Parliament were refused the use of the Auckland Town Hall and, at a meeting in Hamilton, the Leader of the Opposition, Mr. Nash, was threatened with arrest if he mentioned the strike. The complainant contested the Government's statement that members and leaders of the striking unions were permitted to hold meetings among themselves in their usual places of meeting. In Auckland the police shut the doors of the trades hall on the men. In Nelson, Lyttleton, Dunedin, Napier, New Plymouth and other ports, the police prevented the men from meeting in their own meeting halls. These incidents were referred to in the newspapers. The Government would not allow the press to publish the facts which the unions involved wished to be made known. The trade union official writing on behalf of the complainant added that his mail from the United Nations was opened by the Government and that telephones were tapped, the Government passing legislation to enable it to act in this way.
• Allegations relating to the Dissolution and Deregistration of the Waterside Workers' Union
  524. 524 The complainant contended that, while the Government claims that the Waterside Workers' Union was deregistered under the Industrial Conciliation and Arbitration Act but was not dissolved, the Government had stated on many occasions that it would not allow this union to be reformed. He stated, in his letter of 15 April 1952, that the members were still prevented from reforming their union and, in his letter of 5 October 1952, that they still could not freely form a union of their own instead of a union formed and controlled by the Government. He declared that the Government registered " scab " unions in nearly all the ports and that, when members of the old union regained control of the union set up in Wellington, the Government registered a further opposition union contrary to the provision in the Industrial Conciliation and Arbitration Act " which lays down that two unions shall not operate in the same industry in the same locality ". Finally, he alleged that members of the Auckland Branch of the Waterside Workers' Union, including 1,800 ex-servicemen, were not being allowed to return to their jobs.
• Allegations relating to the Seizure of Union Funds
  525. 525 The complainant contended that the Government's statement that the unions were allowed to draw on the seized funds for all lawful union purposes was not true. The Waterside Workers' Union was not allowed to draw any funds and still had not had any of its funds returned to it. The complainant forwarded a newspaper report, extracted from the issue of The Dominion dated 3 October 1952, of a court claim by the secretary of the Wellington Road Transport and Motor and Horse Drivers' and their Assistants' Union against the Public Trustee as receiver of their funds. The case was dismissed, the magistrate stating that funds could not be paid out in respect of payments not sanctioned by the competent Minister in accordance with the Union Funds Distribution Act 1951. This union, stated the complainant, was not on strike at all when it was deregistered and its funds were seized.
  526. 526 The complainant stated further that the officers of the Waterside Workers' Union were not consulted by the Government before the passing of the Union Funds Distribution Act and that in Wellington the members of the deregistered union voted unanimously to pass their funds to their present union in February 1952 but that no funds had been paid out to this union. Other unions did not need to be consulted because they drew their funds from the bank before they could be seized. The complainant contended, therefore, that it was quite untrue for the Government to state that the funds were distributed after consultation with the unions concerned and with the full concurrence of their members. Apart from the funds, the complainant asserted, the Government still held the cars, office equipment and other property belonging to the Waterside Workers' Union. The letter of 12 April 1953 again stated that the complainant's union funds were still in the hands of the Receiver.
• Decisions of the Committee at Its Meeting on 1 June 1953
  527. 527 The Committee, at its meeting on 1 June 1953, considered the various arguments put forward by the complainant with respect to the different allegations.
• Alleged Restriction of the Right to Strike
  528. 528 The Committee noted that the complainant gave further details in support of the contention that the work stoppage in the New Zealand ports constituted a lockout and not a strike, but that it did not appear that any new evidence was adduced in this connection to make it necessary for the Committee to reconsider its recommendation that, for the reasons indicated in its previous report, the prohibition of strikes in the New Zealand ports did not in this case imply " ipso facto an infringement of freedom of association ". Consequently the Committee took the view that there was no reason to communicate this allegation to the Government.
• Allegations relating to the Ban on Union Meetings and on the Union Press
  529. 529 The Committee observed that the Government stated in its reply to the original complaint that police action was taken to prevent union meetings only where the meetings were not ordinary meetings confined to members of the local union concerned and where the purpose of the meeting was to incite workers to take part in the illegal strike and that the unions continued to hold regular daily meetings throughout the period of the strike. In his further communications the complainant challenged this statement by the specific allegation that in five named and other unnamed ports the police prevented the union members from meeting in their own union halls. The remaining evidence offered did not appear to the Committee to add anything to the original complaints.
  530. 530 It appeared to the Committee that, even though certain further specific details were added to the allegations as originally made, it would serve no useful purpose, having regard to the fact that union meetings were no longer restricted, to communicate these allegations to the Government.
• Allegations relating to the Dissolution and Deregistration of the Waterside Workers' Union
  531. 531 The Committee had already reached the conclusion that, although a union must be registered if it was to enjoy the privileges conferred by the Industrial Conciliation and Arbitration Acts, including the right to conclude legally enforceable collective agreements and the exclusive right to represent workers at all stages of conciliation and arbitration procedure, the deregistration of this union was not tantamount to suspension or dissolution by administrative authority, in view of the fact that registration is not compulsory and that a union may operate without being registered. The Committee, therefore, had recommended that these allegations did not call for further examination.
  532. 532 It appeared to the Committee from Mr. Doré's letters that the Waterside Workers' Union still existed as a non-registered association, but that new unions had been registered in nearly all the ports. This fact, quite apart from the Government's declaration that the Waterside Workers' Union was not eligible for reregistration because of the violations of the law, could legally prevent the branches of the old unions being reregistered in these ports because, under Section 4 of the Industrial Conciliation and Arbitration Act, 1936, the Registrar of Industrial Unions shall refuse to register a society as an industrial union, except with the concurrence of the competent Minister, " where there is in the same industrial district an existing union registered in respect of the same industry to which the members of the applicant society could properly belong ". Mr. Doré referred to the new unions as " scab " unions but gave no evidence to show that they were not representative unions and unions to which the members of the old union could properly belong. Indeed, it appeared from his statement that the old members did join at least one of the new unions, in Wellington, in such numbers that they gained control of it.
  533. 533 The new point which the complainant did adduce, in the view of the Committee, was that when these members had so gained control of the newly registered union in Wellington, the Government then registered another opposition union. He contended that this was " against the Industrial Conciliation and Arbitration Act which states that two unions shall not operate in the same industry in the same locality ". In other words, he claimed that a union had been illegally registered in opposition to an existing registered union.
  534. 534 In these circumstances the Committee decided that this allegation should be communicated to the New Zealand Government for its observations.
• Allegations relating to the Seizure of Union Funds
  535. 535 The Government had stated in its earlier reply that the distribution of seized union funds was determined by the Union Funds Distribution Act 1951, after consultation with the unions concerned, and that the funds were distributed to trade unions in the same localities respecting the same categories of workers. When examining the original complaints the Committee, " in view of the fact that the distribution of the funds was made after consultation with the unions concerned and with the full concurrence of their numbers," considered that " the Government has given a satisfactory reply in regard to this question ".
  536. 536 At its meeting in June 1953 the Committee observed that the further communications from the complainant challenged the Government's statement. He claimed that no officials of the Waterside Workers' Union were consulted, that the funds of the deregistered union in Wellington were not distributed as demanded by a unanimous vote of the members and that, in fact, the Receiver still had the funds and other property of the Waterside Workers' Union in his custody. As evidence in support of his arguments, he forwarded the account of proceedings brought against the receiver which was contained in the issue of The Dominion dated 3 October 1952.
  537. 537 In these circumstances the Committee decided that these allegations should be communicated to the New Zealand Government for its observations.
• Communication of the Complainant's Further Communications to the Government
  538. 538 In accordance with the decisions of the Committee at its meeting on 1 June 1953 the Director-General, by a letter dated 13 July 1953, transmitted the complainant's communications of 15 April and 5 October 1952 to the New Zealand Government, explaining that, while the Committee had taken no decision to reopen the case, it had decided that the Government should be requested to forward its observations on two of the points raised in those communications, namely, with reference to the alleged wrongful registration of a trade union in Wellington in opposition to an existing union and the alleged retention of union funds.
  539. 539 With reference to the question of the trade union funds the Director-General received a further communication from the complainant on 14 July 1953 enclosing a press cutting from the issue of the New Zealand Evening Post dated 3 July 1953. This cutting contained a report of an action brought in the courts by officials of the deregistered New Zealand Waterside Workers' Union against the Federation of Labour and the Wellington Labourers' Union. Judgment with costs was entered for the defendants. The Federation then sought to recover its costs from the newly registered Wellington Waterfront Workers' Union which disclaimed liability, as did the North Island Waterfront Workers' Association to which it would appear to belong. The newspaper account went on to refer to a proposal that the organisations mentioned above should see the Public Trustee to see " whether some of the remaining frozen money belonging to the deregistered union could be used to settle the account ". This, in the view of the complainant, was clear evidence that the money belonging to the deregistered union was still in the Receiver's hands. The Director-General transmitted this communication to the New Zealand Government by a letter dated 24 July 1953.
• Subsequent Communications from the Complainant Dated 10 August and 28 September 1953
  540. 540 The Director-General received a further communication from the complainant dated 10 August 1953 and relating, among other things, to the alleged continued retention of the deregistered trade union's funds. The Director-General transmitted this communication to the New Zealand Government by a letter dated 26 August 1953.
  541. 541 The New Zealand Government forwarded its observations to the Director-General by a letter dated 22 September 1953.
  542. 542 Finally, on 28 September 1953, the complainant sent yet another communication to the Director-General. With this letter he enclosed copies of accounts furnished by the New Zealand Public Trustee, in his capacity as Receiver, in support of the allegation already referred to concerning continued retention of union funds.
  543. 543 A considerable part of this last-mentioned communication from the complainant dealt with the question of alleged interference with the exercise of the right of union membership. In particular, the complainant stated that, by virtue of the provisions relating to " Bureau Registers " contained in S. R. 1951/288 (Amendment No. 10 to the Waterfront Industry Emergency Regulations 1946), the shipowners had the sole right to say who was going to join the waterside workers' unions in New Zealand. He contended that this was contrary to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and, in particular, to the provision in Article 2 of Convention No. 98 relating to acts designed to promote the establishment of workers' organisations under the domination of employers or employers' organisations. One of the results of this, he alleged, is that the terms of collective agreements are dictated to the workers by the employers. Referring in particular to a recent waterfront industry agreement, he stated that it was forced on the workers and that, when it came before the Waterfront Authority for ratification, the judge said he could not understand how the workers had come to such an agreement. He added that only eight members of the deregistered union in Auckland had been allowed, after rigorous screening, to resume their old occupation after having been barred from it for over two years.
  544. 544 This communication was transmitted to the New Zealand Government by the Director-General by a letter dated 14 October 1953. The Government forwarded its observations thereon in a cable received by the Director-General on 17 November 1953.
• Analysis of the Government's Communication Dated 22 September 1953 and Cable Received on 17 November 1953
  545. 545 The Government confined its replies to the two specific points on which its observations were requested, the allegation that the Government registered a union in Wellington in opposition to an existing union contrary to the Industrial Conciliation and Arbitration Act 1925, and the allegation that the funds of the deregistered union had not been distributed after consultation with the unions -concerned but were still held in the Receiver's custody, and to the point raised in,the complainant's communication of 28 September 1953 with respect to the right of workers to join trade unions of their choice.
• Allegation regarding Registration of a Union in Opposition to an Existing Union.
  546. 546 The Government stated that, since the deregistration of the New Zealand Waterside Workers' Union, two industrial waterside workers' unions had been registered under the Industrial Conciliation and Arbitration Act in respect of the port of Wellington-the Wellington Waterfront Workers' Industrial Union of Workers, registered on 19 May 1951, and the Wellington Maritime Cargo Workers' (Permanent) Industrial Union of Workers, registered on 27 August 1951.
  547. 547 The Wellington Waterfront Workers' Industrial Union of Workers was registered subject to section 2 (4) of the Industrial Conciliation and Arbitration Amendment Act 1939, which requires the consent of the Minister before an industrial union can be registered in respect of a given industry and locality where an industrial union previously existing in respect of that industry and locality has been deregistered by the Minister under the powers conferred upon him by section 2 (1) of the same enactment in the event of a discontinuance of employment. With respect to the union mentioned the Minister did give consent to registration as required by section 2 (4) of the Act of 1939.
  548. 548 The Wellington Maritime Cargo Workers' (Permanent) Industrial Union of Workers was also registered subsequently when the Minister's consent had been obtained, again in accordance with section 2 (4) of the 1939 Act. In this case regard had to be paid to section 4 (1) of the Industrial Conciliation and Arbitration Amendment Act 1936, which, the Government stated, " prescribes in effect that where application is made for the registration of an industrial union and there is in the same industrial district an existing union registered in respect of the same industry, to which the members of the applicant society could properly belong, the Registrar shall not register the applicant society as an industrial union except with the concurrence of the Minister ". The Minister did give his concurrence to the registration. His reason for doing so was that, while the union first registered had as members workers engaged in waterside employment of the usual " casual nature ", the union subsequently registered had as members workers who had reached agreement with the employers concerned upon employment on a permanent basis and the payment of a weekly wage.
  549. 549 The Government concluded, therefore, that the registration of the Wellington Maritime Cargo Workers' (Permanent) Industrial Union of Workers, at a time when another registered union for that industry and locality was in existence, was not contrary to the legislation in force as alleged by the complainant.
• Allegations relating to the Seizure of Union Funds
  550. 550 The Government stated that the Public Trustee, so far as it had been possible to do so, had distributed the funds held by him as Receiver in accordance with the Union Funds Distribution Act 1951. But a certain amount of the funds had had to be reserved by him to meet the unions' legal expenses in connection with a number of unsettled claims under the Workers' Compensation Act 1922, and to meet possible claims by members of the unions whose whereabouts were unknown. In particular, some of the material assets of the Waterside Workers' Union had not yet been realised, including a motor-car and a house occupied by the secretary of the union who was having difficulty in arranging the necessary finance. Bearing in mind that the gross assets of the New Zealand Waterside Workers' Union amounted to over £37,000 (not including branch union assets) and that its last known membership was 6,832, the Receiver had to ensure that he was in a position to meet all just claims which had been made and those which might be made. A substantial number of workers who were members of the union had left the industry but were entitled to share in the distribution and many of these whose whereabouts were unknown had not yet put in their claims, but a reserve had to be held to meet these potential claims. Final distribution could not be made until all assets had been realised and outstanding liabilities met. In the meantime interim payments had been made to branches of the New Zealand Waterside Workers' Industrial Union of Workers for distribution to members-a distribution of 30s per member made in July 1952 and a distribution of 10s per member made in May 1953. Interim payments had also been made to the Wellington Waterfront Worker's Industrial Union of Workers £1,691 in June and July 1952, £1,687 10s. Od. (on the basis of 30s per member in) September 1953, and a distribution of £4 5s. Od. each to individual members in May 1953. As individual claims were lodged and verified, payments were being made continuously to members of the New Zealand Waterside Workers' Union and its branches, many of whom were no longer employed in the industry. All the above distributions had, where applicable, been made pursuant to the notifications from unions (one of which was the Wellington branch of the New Zealand Waterside Workers' Union). In respect of that Wellington branch alone, it was still necessary to hold £5,490 to meet ;claims not yet made by members and the over-all position was typical of that prevailing with respect to other branches of the New Zealand Waterside Workers' Union.
  551. 551 Regarding, in particular, the points raised by Mr. Doré with respect to the funds of the Wellington Road Transport and Motor and Horse Drivers' and their Assistants' Industrial Union, the Government made the following observations. This union was deregistered on 10 April 1951 for reasons similar to those which led to the deregistration of the New Zealand Waterside Workers' Union, namely, discontinuance of employment by members of the union likely to cause serious loss and inconvenience. The gross value of this union's assets was £6,397. Of this, £4,002 had been distributed under the Union Funds Distribution Act 1951, and the balance was held for distribution when certain legal points regarding its distribution should have been resolved. About 500 members of the deregistered union did not become members of the new union of drivers formed after the strike and they were entitled to a refund of contributions paid in advance as well as to any additional share in the assets. Three hundred and fifty-five of these former members of the deregistered union had still not made claims in spite of many advertisements advising them to do so.
  552. 552 With regard to the cutting from The Dominion of 3 October 1952, the legal action therein mentioned was one in which the secretary of the Wellington Road Transport and Motor and Horse Drivers' and their Assistants' Industrial Union claimed repayment of £428 alleged to have been expended by him on union business subsequent to the appointment of the Receiver. The Receiver considered that this was not a debt which he should meet out of union funds and the court upheld his view. The Government could not understand how this could be interpreted by the complainant as bearing out his statements concerning the non-return of union funds.
  553. 553 With regard to the cutting from the New Zealand Evening Post of 3 July 1953 the legal action mentioned was a libel action brought by certain officials of the New Zealand Waterside Workers' Union against the New Zealand Federation of Labour and won by the latter. The North Island (New Zealand) Waterfront Workers' Association was registered in August 1952 and sought to affiliate with the Federation of Labour, which raised the question of payment of its legal costs. Subsequently the Receiver was consulted and he rejected the idea that the Federation's claim should be met out of the union funds in his custody on the ground that it was not a debt due from the union.
  554. 554 In its reply by cable received on 17 November 1953 the Government added that responsible officials of the North Island Waterside Workers' Association had assured the Government that they were satisfied with the manner in which the Public Trustee was handling the distribution of the funds of the deregistered unions and repeated its previous assertion that the principles embodied in the Union Funds Distribution Act were agreed to, before its enactment, by the deregistered New Zealand Waterside Workers' Union.
• Allegation concerning Interference with the Exercise of the Right of Trade Union Membership and Anti-Union Discrimination
  555. 555 This allegation, raised in the complainant's latest communication dated 28 September 1953, was covered by the cable received from the Government on 17 November 1953.
  556. 556 The Government stated that, while the rules of waterside workers' unions, like all other registered unions, must be approved by the Registrar of Industrial Unions, this approval is for the purpose of ensuring that they provide for a democratic system of management and there is definitively no interference with union affairs either by employers or the Government. Under the New Zealand system of compulsory unionism workers must join an appropriate union and the position in the waterfront industry is the same as that in other industries; the employer has the right to determine whom he shall employ and such workers are then legally bound to join the appropriate union. The waterfront industry regulations show that unions have an absolute right to negotiate wages and other conditions of employment and, if they fail to reach agreement, to have the matter determined by the Waterfront Industry Tribunal. North Island and South Island waterside workers' associations representing practically all the waterfront unions in New Zealand had recently completed negotiations with the New Zealand Port Employers' Association for a new agreement providing for a substantial improvement in their conditions of employment. The representatives of the two negotiating workers' associations, before accepting the agreement, submitted it to a secret ballot of all the members of the constituent unions, who approved it by a very substantial majority. The Government was assured that the Judge of the Tribunal which ratified the agreement made no remark to the effect that he could not understand the workers' acceptance of such an agreement and considered that in this agreement, the employers conceded rather more than they were justified in doing having regard to wages and conditions in other industries. In conclusion the Government stated that the latest allegations were random and irresponsible and did not represent any body of opinion, the deregistered New Zealand Waterside Workers' Union being defunct and having no following.
• Decisions of the Committee at its Meeting in November 1953
  557. 557 At its meeting in November 1953 the Committee further considered the position in the light of the New Zealand Government's communication dated 22 September 1953 and of the cable received from the Government on 17 November 1953, which have been analysed above.
• Allegation regarding Registration of a Union in Opposition to an Existing Union
  558. 558 The complainant alleged that a union was registered in Wellington, when there was already a registered union in existence, contrary to " the Industrial Conciliation and Arbitration Act which states that two unions shall not operate in the same industry and in the same locality ". In reply the Government admitted that two unions were registered in Wellington but stated that this was not contrary to the Industrial Conciliation and Arbitration Act as alleged and forwarded the relevant legislation in support of its contention. The first union, the Wellington Waterfront Workers' Industrial Union of Workers, was registered on 19 May 1951. The Industrial Conciliation and Arbitration Amendment Act, 1939, requires the Minister's concurrence before a union can be registered in an industry and locality in respect of which a previously existing union has been deregistered. The complainant made no allegation against the due registration of this union according to the law so that it did not appear necessary for the Committee to consider this point. A second union was registered on 27 August 1951, the Wellington Maritime Cargo Workers' (Permanent) Industrial Union of Workers. In view of the earlier deregistration of a previously existing union in Wellington in the same industry, this union, like the Waterfront Workers' Union, could in any case not have been registered until the Minister had concurred in accordance with the Act of 1939. But, as a previously registered union was now in existence, this second union could have been registered only if, in addition, the provisions of the Industrial Conciliation and Arbitration Amendment Act, 1936, relating to the registration of more than one union at the same time were complied with.
  559. 559 The relevant section of the 1936 Act is section 4 (1), which is as follows:
  4. 4 (1) Where at any time after the passing of this Act application is made for the registration of any society (including a trade union) as an industrial union of employers or as an industrial union of workers, and there is in the same industrial district an existing union of employers or of workers, as the case may be, registered in respect of the same industry (whether or not the maximum number of members of that union is limited by its rules or otherwise), or there is in the same industrial district an existing trade union which was registered as such before the first day of May 1936, and to which the members of the applicant society could properly belong, the Registrar shall not register the applicant society as an industrial union except with the concurrence of the Minister.
  560. 560 It appeared to the Committee from this provision that, the Wellington Waterfront Workers' Industrial Union of Workers having been registered on 19 May 1951, the registration of the Wellington Maritime Cargo Workers' (Permanent) Industrial Union of Workers on 27 August 1951 was lawful provided that the Minister gave his concurrence to such registration. The Government stated in its reply that this concurrence was given. Consequently, the Committee considered that the complainant had failed to offer sufficient proof of his allegation that the registration of the second union was " contrary to the Industrial Conciliation and Arbitration Act " and that the giving of Ministerial consent to the registration of a second union for the reasons given m the Government's reply, without this involving deregistration of the already existing union, involved infringement of trade union rights.
  561. 561 In these circumstances the Committee considered that, so far as this allegation was concerned, there was no ground for it to recommend that any further action should be taken.
• Allegations relating to the Seizure of Union Funds
  562. 562 The complainant disputes the Government's statement, in its reply to the original complaints, that the distribution of seized union funds was determined by the Union Funds Distribution Act, 1951, after consultation with the unions concerned, and that the funds were distributed to trade unions in the same localities respecting the same categories, in consequence of which statement the Committee had previously taken the view that the Government's reply was satisfactory.
  563. 563 It appeared both from the recent letters of complaint as well as from the Government's reply that some, at least, of the funds of various deregistered unions were still in the custody of the Receiver. Before considering further this aspect of the question, especially in view of the reasons given by the Government in its latest reply with respect to the Receiver's need for a reserve fund to meet contingent liabilities, the Committee referred to certain of the provisions of the Union Funds Distribution Act, 1951, which were relevant to its consideration of these allegations. Under section 13 of that Act provision is made to enable the members of a deregistered union or branch to pass a resolution, by a three-quarters majority of the members present at a meeting for that purpose and entitled to vote, to the effect that its funds shall pass to another registered union or branch in respect of the same locality and industry, subject to the right of any person who was a member of the old union but not of the new one to apply for individual payment to him of an amount representing his share. In the absence of such a resolution, the funds must, under section 11, be shared out among the members of the original union or branch. In both cases provision is made for the repayment or adjustment of subscriptions paid in advance by members. But section 14 of this Act also requires the Receiver to pay debts and claims due and payable by the deregistered unions or branches and to meet certain other necessary outgoings out of the seized funds.
  564. 564 When the Government replied to the original complaints the Committee, when reaching its conclusion that the Government's reply was satisfactory and that the seized funds had been paid, after consultation with the unions concerned, to other unions in the same localities respecting the same categories, had before it a list of five deregistered unions or branches, provided by the Government, which had notified the Receiver of resolutions to pass their moneys to other organisations in accordance with section 13 of the Union Funds Distribution Act, 1951. It appeared to the Committee, at its meeting in November 1953, as it had appeared when it examined the original case, that there was no reason to doubt the Government's statement on this point that payments were made in accordance with the resolutions passed by the organisations concerned. But it was also evident to the Committee that disposal by way of resolution was not the only way in which the funds could be distributed and that any disposal might be subject to certain contingent financial liabilities.
  565. 565 It appeared to the Committee from the Government's reply of 22 September 1953, read in conjunction with its earlier reply, that, while a substantial portion of the seized funds had been repaid-some to new unions or branches pursuant to notifications received of resolutions to that effect passed by the deregistered organisations, some to individual members of the old organisations by way of direct distribution or share-out, some to members of the old unions who had filed individual claims-the Receiver still had substantial funds in his custody. In respect to the latter funds, as the Government pointed out, the Receiver had, under the provisions of the Union Funds Distribution Act, to be prepared to pay out of them various debts of the old unions, unsettled claims under the Workmen's Compensation Act, and claims to a share-out or to repayment of contributions paid in advance by workers who were members of the old unions and had not joined the new ones and who had not yet filed claims and were in many cases still untraceable (in the case of the Wellington branch of the Waterside Workers' Union the Government stated that it was still necessary to reserve £5,490 to meet individual members' claims alone). There was the final consideration that some assets of the deregistered unions had still not been realised. Finally, it appeared to the Committee that the cuttings from The Dominion and the New Zealand Evening Post were relevant to the extent only that they confirmed that moneys were still held by the Receiver, a fact which the Government admitted.
  566. 566 In view of the explanations given by the Government it appeared to the Committee that in fact, as the Government stated, " so far as it was possible to do so the funds held by the Public Trustee as Receiver had been distributed pursuant to the Union Funds Distribution Act ", and that interim payments were being made to the unions entitled as well as payments to individual members, but that a very substantial number of individual members' claims still awaited satisfaction when they were made, for which purpose the Receiver had to retain the necessary moneys. The Committee considered that the Government was, therefore, adopting the most reasonable attitude that it could in the light of the existing facts when it stated that it was impossible to effect the final distribution until all the assets had been realised and the outstanding liabilities met, and that there was no reason to doubt the Government's intention to conclude the distribution in accordance with the Union Funds Distribution Act as soon as this could be done.
  567. 567 In these circumstances the Committee, while expressing the hope that the balance of the funds of the deregistered unions would be distributed as soon as possible, considered that, so far as these allegations were concerned, there was no ground for it to recommend that any further action should be taken.
• Allegations relating to Interference with the Exercise of the Right to Trade Union Membership and to Anti-Union Discrimination
  568. 568 With respect to these allegations the Committee noted that the Government, stating in its cable received on 17 November 1953 that employers in the waterfront industry, who compile the Bureau Registers referred to by the complainant, have the right to determine whom they shall employ and that such workers are then bound to join the appropriate union, denied that there is any interference with union affairs either by employers or by the Government, but did not deal specifically with the allegations of the complainant in his letter of 28 September 1953, as well as in earlier letters, to the effect that members or former members of the deregistered union were being discriminated against so that only very few of them had been readmitted to employment. The Committee, therefore, took the view that, before it made its recommendations on these allegations to the Governing Body, it would be desirable to ask the Government for information as to the criteria used by the employers in deciding under their statutory powers who shall be entered on the Bureau Registers and, more particularly, as to whether affiliation or former affiliation with any of the deregistered unions is taken into account in such decision and, having regard to the precise statements made on this point by the complainant, as to how far members of the old unions have now been given employment in the waterfront industry.
• Communication of the Committee's Decision to the New Zealand Government
  569. 569 The Director-General communicated the above decision of the Committee to the Government of New Zealand by a letter dated 4 December 1953, and the Government forwarded further observations on the points mentioned in a letter dated 21 January 1954.

B. Analysis of the Government's Reply Dated 21 January 1954

• Allegations relating to Interference with the Exercise of the Right to Trade Union Membership and to Anti-Union Discrimination
  570. 570 The Government recalls that, at the beginning of the waterfront strike in 1951, it issued numerous invitations to the members of the deregistered waterside workers' union to return to work and have their dispute determined by conciliation and arbitration. On 7 April 1951 the Minister of Labour wrote to all members of the deregistered union, enclosing application cards for readmission to waterfront work and inviting them to fill them up, conditional on acceptance of conciliation and arbitration for the settlement of disputes and on secret ballots being taken on any strike issue. Preference for re-employment on the waterfront was given to members of the deregistered union up to 20 April 1951, after which date other workers were permitted to apply. To prevent victimisation the Government granted members of the deregistered union a right of appeal to the Port Conciliation Committee against non-selection by employers for the Bureau Register, provided that there were vacancies in the Register. This right of appeal ceased to exist once the Bureau Register strength at a port first reached the limitation fixed by the Port Conciliation Committee. In July 1951 1,450 applications were received at the port of Wellington from members of the deregistered union. Fifty-one of them were not selected by the employers, but 23 of these (including Mr. R. E. Doré) appealed successfully to the Port Conciliation Committee.
  571. 571 At the present time members of the deregistered union have an equal opportunity with other workers of selection by employers for inclusion in the Bureau Register at each port and, states the Government, there is no discrimination because an applicant was a member of that union. The criteria used by the employers in determining who shall be entered on the Register are the applicant's physical fitness, age, character and general suitability for the performance of the work. New conditions recently negotiated between employers' and workers' organisations embody these criteria and the employers' association has agreed to meet union representatives at each port to receive any representations from the union regarding men to be enrolled on the Register. It has also been agreed that applicants who are otherwise suitable will be required to submit to an examination by the employers' medical officer.
  572. 572 The Government attaches to its reply a copy of the Annual Report of the Waterfront Industry Commission for the year ended 31 March 1952. This Annual Report contains statistics showing that, out of a total Bureau Register strength of 6,010 at the various ports, 2,609 or 43.41 per cent were members of the deregistered union. The Government adds that, although no later figures are available, it is known that members of the deregistered union are still being admitted to the Bureau Registers, together with other applicants.

C. C. The Committee's conclusions

• Allegations relating to Interference with the Exercise of the Right to Trade Union Membership and to Anti-Union Discrimination
  573. 573 The complainant's main contention is that the employers, by virtue of Amendment No. 10 (S.R. 1951/288) to the Waterfront Industry Emergency Regulations, 1946, have the sole right to decide who shall and who shall not be employed in the industry, and, therefore, who shall join the waterside workers' unions. A rigorous screening is carried out to the prejudice, according to the complainant, of members of the deregistered unions, only eight of whom have been re-engaged. The Government states that there is no interference with the workers' right of association but that employers in the industry, as in the case of other industries, have the right to decide whom they will employ.
  574. 574 The pertinent section of the aforesaid Amendment No. 10, to which the complainant draws special attention, is section 27, dealing with the question of " Bureau Registers ", the text of which is as follows:
  27. 27 (1) No person whose name is not on the Bureau Register for any port shall be employed to do any waterside work at that port unless there is no person whose name is on the register available to do that work and ready and willing to undertake it.
  2. (2) No person who is not in permanent employment as a waterside worker at any port shall be employed to do any waterside work at that port unless there is no person in such permanent employment available to do that work and ready and willing to undertake it.
  3. (3) The Commission [i.e., the Waterfront Industry Commission established under the Waterfront Industry Emergency Regulations] shall cause to be kept for every port a Bureau Register, on which shall be entered the names of such waterside workers as may from time to time be directed by the New Zealand Port Employers' Association Incorporated.
  4. (4) The name of any worker shall be removed from the Bureau Register if:
     • (a) he fails to join a union before the expiration of seven days after the date on which his name is placed on the register;
     • (b) he ceases to be a member of a union at any time after the said period of seven day;
     • (c) the removal of his name from the register is directed by the New Zealand Port Employers' Association Incorporated.
  5. (5) Every person whose name is on the bureau register for any port shall be entitled to become a member of a union for that port on application made in accordance with its rules, and in so far as the rules of any union are inconsistent with the provisions of this subclause they shall be null and void.
  575. 575 The Committee notes from the foregoing that, as both the complainant and the Government declare, the employers decide who shall be entered on the register and so possess, apart from the exceptional circumstances mentioned in subclause (1), the sole right to be employed. It is also to be noted that the first preference is to be given to persons in permanent employment. In this connection it will be recalled that the Government states, in its reply to the allegation concerning the registration of a union in opposition to an existing registered union (see, especially, paragraph 548 above), that the registration of a new union in Wellington-the Wellington Maritime Cargo Workers' (Permanent) Industrial Union of Workers-when there already existed a registered union for Wellington port workers, was consented to by the Minister because the new union catered for permanently employed workers while the existing union catered for casual workers.
  576. 576 The Committee considers that the requirement, under the system in force in New Zealand, that a docker's name must be entered on the Bureau Register for permanent employment-admittedly an improvement from the worker's point of view as compared with the old system of casual labour-does not in itself imply interference with the right of association provided that no anti-union discrimination is exercised in the compilation of the Bureau Register.
  577. 577 But it is precisely on this question of discrimination that the complainant states there is discrimination exercised against members of the old unions. In his latest communication he declares that eight deregistered workers in Auckland have now been given employment, after being barred for over two years, following a rigorous screening, before a committee consisting not only of employers but also of representatives of the new union, which he alleges to be employer-dominated. In his letter dated 15 April 1952 he alleges the exclusion from employment of members of the Auckland branch of the deregistered union, including 1,800 ex-servicemen, who have spent their whole lives as port workers. In his letter of 5 October 1952 he states again that " our men are still denied the right to go back to their jobs on the wharves ". In his letter of 12 April 1953 he makes a similar allegation. The Government, in its latest reply, deals further with the question of alleged discrimination. In particular the Government states that the criteria used by the employers in deciding under their statutory powers who shall be entered on the Bureau Registers are the applicant's physical fitness, age, character and general suitability for the performance of waterside work and that the union at present catering for waterside workers has negotiated an agreement with the employers in which these criteria are embodied and in which it is also agreed that applicants who are otherwise suitable will be liable to an examination by the employers' medical officer. According to the Government these are the only criteria and there is no victimisation by the employers on the ground of former membership of the deregistered union, in support of which statement the Government not only recalls the invitation issued to members of that union to fill up application forms for readmission to work in April 1951-which invitation 1,450 members of the old union in Wellington accepted in July 1951, 1,399 being selected for the Registers and 23 more being enrolled on appeal to the Port Conciliation Committee-but also refers to the report of the Waterfront Industry Commission for the year ended 31 March 1952 containing the latest available statistics which show that, at that time, 2,609 members of the deregistered union were among the total of 6,010 persons enrolled on the Registers for all the ports. Finally, the Government adds that members of the deregistered union are still being enrolled, along with other applicants.
  578. 578 In view of the Government's detailed explanations, corroborated by statistics the Committee, while emphasising the importance it attaches to the principle that no discrimination in respect to employment should be exercised against members of the deregistered union, nevertheless considers that the complainant has not offered sufficient evidence to show that such discrimination is in fact being exercised, and that, with respect to this allegation, therefore, there is no ground for it to recommend that any further action should be taken.

The Committee's recommendations

1. 579. In all the circumstances, therefore, subject to the observations made in paragraphs 567 and 578 above, the Committee recommends the Governing Body to decide that there is no ground for any further action to be taken in this case.