Definitive Report - Report No 2, 1952

A. A. The complainants' allegations

• Analysis of the Complaints
  11. 11 The complainants make the following allegations:
      • (a) Following the declaration of a lock-out in the New Zealand ports, the Government violated trade union rights by arbitrarily declaring a state of emergency on 21 February 1951 and by promulgating on 22 February 1951 the Waterfront Strike Emergency Regulations.
      • (b) Under these regulations, the Government in particular prohibited public meetings, prevented the union having access to radio broadcasting, prohibited certain trade union publications, opened mail and tapped telephone conversations.
      • (c) The Government took measures intended to bring about the dissolution of the union by deregistering the union and by seizing a sum of £20,000 belonging to the trade union and the trade union archives.
  12. Analysis of the Reply and Supplementary Reply
  12. 12 In its reply dated 11 December 1951, the Government put forward, in particular, the following arguments:
  13. 13 The suspension of work in the ports constituted a strike within the meaning of the law, and the Government, in order to ensure the maintenance of public order, was obliged to proclaim a state of emergency and to forbid the continuation of the illegal strike.
  14. 14 By virtue of the emergency measures which were taken, public meetings and publications were forbidden only in so far as they related to the prohibited strike. The Government gave no instructions to open mail or tap the union's telephone communications.
  15. 15 The Waterside Workers' Union was deregistered under the provisions of the Industrial Conciliation and Arbitration Act on account of the illegal strike, but the trade union was not dissolved. Under the emergency regulations, the Government was authorised temporarily to seize the funds of the union in order to prevent them being utilised for the purposes of the strike.
  16. 16 At its first session (10-12 January 1952), the Committee requested the Director-General to obtain further information from the New Zealand Government on the two following points:
  1. (1) the alleged banning of union meetings ;
  2. (2) the position with regard to the trade union funds seized after the cancellation of the unions' registration. With regard especially to the latter point, the Committee expressed a wish to have further information concerning the disposal of these funds following the revocation of the Emergency Regulations.
  17. 17 In its reply dated 25 February 1952, the New Zealand Government gave the following details concerning the two questions referred to it:
      • (a) Trade Union Meetings
  18. 18 Members of the striking unions, including the strike leaders, were permitted to hold meetings among themselves in their usual places of meeting in so far as the Government was concerned. The Government knows of only one instance where a municipal authority refused to continue to make its hall available through fear of damage to its property, but in this case the striking unionists had no difficulty in securing the use of other premises. Police action to prevent or stop meetings was taken 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. Only seven such occasions are known to the Government where trade union meetings or public meetings organised by trade unions were prevented or stopped. The Government adds that the main waterside workers' unions continued to hold regular daily meetings of their members throughout the period of the strike and any of the union members could address these meetings without hindrance. The Government took no action which would prevent any trade union from continuing to hold its usual meetings for its lawful purposes.
      • (b) Position regarding Trade Union Funds Seized by the Authorities
  19. 19 The Government explains in its reply that the union funds were seized solely to prevent their use in furtherance of an unlawful strike. The unions concerned were allowed to draw on the funds for all lawful union purposes such as salaries of office staff, office expenses, etc. Following the revocation of the Emergency Regulations, the distribution of the funds seized was provided for by Act No. 20 of 1951. The text of this Act was attached to the reply. The Government emphasises that the Act provides for the equitable distribution of the funds affected in accordance with the wishes of the members of the unions concerned. The Act itself was passed after consultation with officers of the unions affected and with their concurrence in its provisions. It appears from a document attached to the reply that the funds of various unions whose registration was cancelled have been transferred to occupational organisations set up for the same purpose in the same localities.

B. B. The Committee's conclusions

• I. Allegations relating to the Restriction of Trade Union Rights
  20. 20 It is clear from the allegations made by the complainants and from the Government's reply that the measures complained against were taken following a labour dispute which arose between the Waterside Workers' Union and the employers in the New Zealand ports. The complainants call this stoppage of work a lock-out and consider, consequently, that the measures taken against the trade unions were arbitrary. The Government, on the other hand, maintains that it was a question of an illegal strike which, paralysing all trade in the ports, threatened the islands' supply lines and, therefore, threatened public order.
  21. 21 It is accordingly necessary to consider whether the complainants have offered sufficient evidence that the Waterfront Strike Emergency Regulations infringe trade union rights.
      • (a) Alleged restriction of the right to strike
  22. 22 Under the Regulations, the Government has prohibited the stoppage of work in the ports which it has declared to be an illegal strike. The legislation concerning conciliation and arbitration in force in New Zealand (the text of which was annexed to the Government's reply) provides that trade unions which become registered in accordance with the Acts-a purely voluntary procedure on their part-thereby enter into an undertaking not to have recourse to strikes in consideration of the advantages accorded to them under the Act, for example, legal recognition, the right to conclude legally enforceable collective agreements, the exclusive right to represent the workers at all stages of conciliation and arbitration procedure, etc. It would not therefore appear that, in the present case, the prohibition of strikes in New Zealand ports implies ipso facto an infringement of freedom of association.
      • (b) Alleged restrictions on the freedom of union meetings and of the trade union press
  23. 23 In consequence of the prohibition of the strike in the ports, the aforesaid Regulations prohibit all acts intended to promote, support, extend or assist the strike. To this end, it provides for the prohibition of certain meetings and certain trade union publications. The Regulations lay down penalties, on the one hand, for any person who incites or persuades another person to take part in the prohibited strike (Article 12) and, on the other hand, for any person who makes any public statements with regard to the dispute (Article 15). Finally, the Regulations authorise the Government to prohibit public meetings which are calculated to disturb public order (Article 16). The right to organise trade union meetings and to express opinions through the press or otherwise is clearly one of the essential elements of trade union rights.
  24. 24 It appears, however, from the very specific supplementary reply given by the Government that only public meetings likely to disturb public order or meetings called for the purpose of inciting workers to take part in an unlawful strike have been prohibited, by virtue of the Emergency Regulations issued by the Government to deal with a serious situation resulting from the stoppage of work in the ports of the country. On the other hand no obstacle appears to have been placed in the way of meetings of members of the striking unions, who have been able to meet freely in their usual premises throughout the dispute.
  25. 25 In view of the fact that the right of trade union meeting, which is certainly one of the elements constituting freedom of association, has not been questioned, even during the period of emergency, the Committee considers that the Government has given a satisfactory answer on this point.
• II. Allegations relating to the Dissolution and the Seizure of the Funds of the New Zealand Waterside Workers' Union
  • (a) Deregistration of the Waterside Workers' Union
    26. 26 By a Notice of 28 February 1951 the Minister of Labour deregistered the New Zealand Waterside Workers' Union. This measure was based on Article 2 of the Act of 18 July 1939 amending the Conciliation and Arbitration Act. This provision gives the Minister this power whenever " a discontinuance of employment has caused or is likely to cause serious loss or inconvenience ". The deregistration of a trade union is not in itself equivalent to the suspension or dissolution of a trade union by administrative authority. In fact, it is clear from the Conciliation and Arbitration Act, 1925, that registration, as already mentioned, is not compulsory. A trade union map be constituted and may operate without obtaining registration. The Government points out in this connection that certain trade unions have not actually had recourse to registration in accordance with the Conciliation and Arbitration Act. A trade union which becomes deregistered does not, on that account, cease to exist.
    27. 27 In these circumstances the Committee does not consider that this allegation calls for further examination by the Governing Body.
  • (b) Seizure of union funds
    28. 28 The seizure of the funds of the Waterside Workers' Union was based on Article 7 of the Emergency Regulations which provides, in particular, that in the case of a strike to which the Regulations apply or where a union is deregistered by virtue of Article 2 of the aforesaid Act of 18 July 1939, the Minister of Labour may appoint a receiver, nominated by himself, in respect of the funds of the trade union or of any affiliated association. In accordance with paragraph 11 of Article 7, the receiver holds the funds which have been seized as a trustee until such time as Parliament decides with regard to their final disposal. By a Notice of 26 July 1951, the Government ended the state of emergency and revoked the Emergency Regulations with the reservation, however, that this should not invalidate the effects of the various measures taken or acquired rights, interests, titles or trusts. The deregistration of the Waterside Workers' Union, a measure taken under the Conciliation and Arbitration Act, was not affected by the abrogation of the strike regulations, and this organisation, because of the violations of the law of which it had been guilty, was no longer eligible for re-registration.
    29. 29 In reply to the request made on behalf of the Committee for supplementary information with regard to the distribution of the union funds seized after the cancellation of the unions' registration, the Government stated that their disposal has been determined by Act No. 20 of 1951 after consultation with the occupational organisations concerned. It is clear from a document attached to the reply that the funds have been distributed to trade unions in the same localities representing the same categories of workers.
    30. 30 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 members, the Committee considers that the Government has given a satisfactory reply in regard to this question.