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ARBITRATION COURT.

ENipRCEMiENT OASES.

After the "Star" went to prees yesterday the following additional business -was transacted in ,the Court of ArbitrationThe Court dealt with a number of enforcement cases., •Mγ. Shanaghan appeared for the Department of Labour. A QUESTION OF HOLIDAYS. T. W. Marks was charged with a breach of the butchers' award Jn that he did fail to close hie premises on November 11, being-the statutory ihaM4ioliday Deiendant admitted *he offence, but ■pointed out tJiat he had closed all day on.November 0, being the King's Birthday. Mr. Grosvenor, secretary of the Employers' Association, said this case had 'been brought against Mr. Marks as representing the traded and <wae regarded in the light of a test case. He would point out tha-t it had been cuetomary from time immemorial to close premises on ,#e birthday.of.' ihe ruling sovereign in lieu of the usualhalf-holiday. Hie Honor said iffot where the.language of the law wa* plain, time imimemoriaj was no argument. If it were,.:it might be -used to justify-low ■wages.for everi The case would be treated by the Court as an application for interpretation.' A conviction -would be entered, tmt no. penalty would (be imposed. ' „ payment cub;;' wages. . ■ E. P. of pleaded, guilty, to a charge, of paying wages at intervals exceeding a, fortnight, as prescribed in the award. Mr. Fallon appeared for the accused, end- related special cdrcumstanceß, in view of which a nominal penalty of £2 and coats was imposed. PAYMENT OF OVERTIME. The Bartholomew Land and Timber Company, of Putaruru, represented by Mr. Grosvenor, were charged with having during, the .winter months last year worked men on Saturday afternoons ■without paying overtime, and also with paying wages at longer than fortnightly intervale. The d&fenco was that the men were worked on Saturday afternoons at their own request, and in exchange for half-an-iiour .extra in bed in the morning. Uβ Court imposed a fine of £3 and coats, on each charge.' , . . A TECHNICAL BREACH. W. Chadwick, of Pahl, for whom Mr. W. J. Napier appeared,:admitted a tec-h-I nlca.l breach of the Timber Workers' Award, in that he had : employed a "tailman" to do "headman's" work without paying- him the prescribed wage. The defence was that tie headman left β-ud-donly, and the <tailmau had to fee put on I under supervision dn the emergency. The Court iniposed a fine of £2 and coste. . "WHAT IS OVERTIME* J. H. Adams and Co. were charged with a breach of the boilermakers , award, raising an important point as to what constitutes overtime. . Mr. R. McVeagh, who appeared for tiha respondents, explained that ithey Jiad to execute repairs oq the- boiler o£ th<j p,s> ; W&katere fox the Northern Steamship Company against time. Accordingly they worked night and day with wiree shiftsTrr-one {working ton 7.30 a,m. to 6 p.m., one from 5.30 p.m. to midnight, and one from ■midnight to 7.30 a.m. It was contended that respondents ought to" pay oyertkne •rates to the shifts working; between 5.30 p.m. and 7.30 a.m., but he (Sir. McVeagh) would argue that the dominant idea oi the award was that Si hours on five days' in the week and 4J hours on one in the week were to be paid for at ordinary rates, and overtime wae only to be paid for any time worked in excess I thereof. ' The Court reserved its decision. OTHER CASES. George E. White, haardresaer, for emplo3'ing a non-unionist, was fined £2 and costs. H. Bolitho, hairdresser, for employing a unionist otherwise than through the secretary of the union, was fined £2 and costs. For a similar breach, Colsan and Co. were convicted, but in view of special circumstances no fine was imposed.. F. Cleal, hairdresser, for employing an apprentice on the King's (Birthday, was fined £3 and costs. The Coulthard Timber Co., Helensville, for paying yardman's wages to a loggetter, were fined £2 and costs. Hardley and Hardley, for employing a man at other than award rates, -were fined £6 and costs. The Court adjourned β-t 5 pan. until 10 a.m. thia morning. On resuming to-day the Court 'heard compensation cases. A. MAHON V. WAIHI GRAND JUNCTION CO. In this case, Annie Mahon, of Papakura, widow, claimed from the Waihi Grand Junction Company the cum of £400 compensation as.a result of the death by misadventure of her son Francis Mahon, a miner in the employ of the Company, who, employed as a braceman, was crushed to death on 18th May last by a flywheel when 'assisting to start a compressed air engine. Mr. W. J. Napier appeared for the applicant, and Mi. Stan ton for the Company. Mr. Napier, in opening, explained the, circumstances under which the fatality occurred. It wems that the men ", dn " the. engine-room nave crib time from 4 to 4.30 a.m., during which time the air compresser engine stops running. On the morning of May 18th Mahon, in assisting the engine-driver to start the engine again by turning the fly-wheel, was caught in it and crushed to death. Applicant was the mother of deceaeed, who regularly contributed towards her support, his average weekly wage being £2 lls., and the average weekly payment to his' mother 7/6. Katherine Mahon, sister of deceased, aged 12 years, was also' partially dependent upon him. The" claim against the Company was for-£4OO, to be apportioned as to two-thirds .to the mother and the residue to the sieter. The defence filed was a denitt.lof liability on the ground that the "injury to Francis Mahon was not caused by accident arising out of and in course of his employment, that it was attributable to the eeriou3 and wilful misconduct of deceased, and that at the time of the accident deceased was not immediately employed by the respondents. For the claimant a quantity of evidence wus led to establish the general facts enumerated above, and to endeavour to show that Mahon was fulflllinga normal and usual function as a braceman in going to assist the engineer' to start the air compressor engine at the end of crib time by turning the flywheel, and that such assistance was frequently required. Mr. Stanton cross-examined with a view to showing that such assistance was not customary, that it was unnecessary, and 'that it would not b e expected by the engineer, Further, he established. thnt\ it was not compulsory for bracemen during crib-time to be 4 - *>m ebKsoinpressor rosmui er at any

particular,place on the mine properties. They could go where they pleased during crib-time, so long as, they did notleaye the precincts of the mine. ;r. .:■ \. h Mr. Stanton, addressing ihe; Court, said he would refer to, the construction to be placed upontbe evidence which been given. The accident had taken place ip. crib^time,.,and deceaseS was in the air-, compressor room, not because any duty arising out of the conditions of his employment took him there, but of his own choice, and for his own comfort. Counsel said he could not of course contend that the mere faat of an accident occurring in crib time absolved the employers from liability, but there were other cases in which the employer would not be liable, and -such a case would occur when an I accident occurred as a result of an act' committed by a servant outside of the sphere of his employment In this case the" evidence had clearly shown that deceased was engaged as a braceman, and that the duties of a braceman would not take him to the air-compressor room. But it had been further shown that if he was in that room he should only assist at the engine under certain, specified conditions and in an emergency. It wag for the claimant to establish that ' there had . been an emergency and that the conditions had been complied with. He submitted that they had failed entirely to do that, and therefore that the employer was absolved from liability in this case. In support of his argument Mr. Stanton quoted a large number of English and local cases. He said it would .be intolerable if employers could be made liable for accidents befalling a servant through the performance ,of unauthorised acts not coming within the sphere of his employment. Referring to the amount payable in compensation, if the Court decided that there was liability, Mr. Stanton submitted that the full amount payable under the Act was £368 11/, but on the basis of a six years' purchase not more than £120 should be awarded. In a case decided some time ago in Auckland, where the p.ayment was 5/,. a week, the compensation awarded waß £50,- and -he submitted in this' instance that £75 would be ample compensation.

Mr. Napier conterided'that even though a man might be engaged at eomething outside the ordinary sphere of bis employment, unless he were acting perversely his employer would be liable. If he were acting in the honest belief that ilie was serving his employer's -interests, the employer would be ' liable. Jfc. thie case the men were quite entitled to go to the i air-compressor room at - four o'clock- in the , morning for crib time. There was no specified place, and they were entitled to go to a waring comfortable and well-lighted room, The act of deceased- could not, therefore, be attributed to gross and wilful misconduct; as alleged. Wiji. regard to ihe amount of compenEation,vhe submitted >that claimant was a widow |n poor, health, and she had to keep her young daughter. She had lost 7/C a week by the death of her son, and he thought a fair basis would, be, a sum which could purchase an annuity equivalent to that amount. A six years' purchase basis would be very harsh, seeing that in England the basis had often been taken at twenty or twenty-live years. The Court reserved its decision.

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ARBITRATION COURT. Auckland Star, Volume XL, Issue 93, 20 April 1909

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