DUTIES OF DONKEYMEN.

Auckland Star, Volume LVI, Issue 293, 11 December 1925, Page 8

DUTIES OF DONKEYMEN.

ON COASTAL VESSELS,

WHAT IS "CUSTOMARY"?

APPEAL AGAINST " MAGISTRATE'S DECISION. An appeal against a decision of Mr. E. C. Cutten, S.M., was before the Arbitration Court this morning. His Honor, Mr. F. V. Frazer presided, having ■with his Messrs. W. Scott and H. Hunter, assessors.

The appeal arose out of a case heard at the Magistrate's Court, when the 'Labour Department, fpllpwing the refusal of donkeymen and firemen on coastal vessels to work valves or machinery, claimed penalties against the Federal Seamen's Union for breach of award, and also took proceedings against C. B. Fittes and W- T. Young, president and secretary of the Federation, for having instigated a strike. The /whole question centred upon the meaning of the works "as is customary," which appeared in a clause in the award, the Xabour Department contending that the operating of valves on vessels was customary work <|? donkeymen and firejpen, while the union submitted such was not customary. It was admitted that a circular had been sent out to the men, informing them that they were not to operate valves, and that the "donkeymen and firemen had carried out the instructions in the circular. The cases occupied three days, and the magistrate (Mr. Cutten) imposed a penalty of £100 upon the Federated Seamen's Union for breach of the award, and fined Fittes and Young each £5 for instigating a strike,

It was against the decision the appeal commenced this ruqrnjng was lodged, Mr. Northcroft appearing for all three appellants, and Mr. Berendsen for the Labour Department.

In addressing the Court, Mr. Northcroft said that the circumstances which gave rise to the appeal resolved themselves very largely intp fl. question of interpretation, It was in the award, of 1924 that the words "looking after engines as is customary" were included. Mr. Northcroft first submitted that when those words were put in there was no customary duties of donkeymen or firemen to look after engines. At that time the words "a3 customary" did not define anything, because there was nothing customary. He , also claimed that the injuction to "look after engines" idid not impose any obligation, as the words simply infant overlooking, ojjing, examining, and generally exercising supervision without operating valves.

•Mr, Northeroft drew attention to, rule 109 of the Northern Steam Ship Company, which provided that valves were to be opened or closed by the engineers, or at their specific directions, or in their own presence. Taking the langauge as literally "ac customary" could not be taken to mean operating valves, because at the moment of making the award those duties were not being done by firemen or donkeymen. Hβ was unable, - though he had made an exhaustive search, to find in this particular case, whether custom meant the custom of the engineer, donkeytnan, fireman, ship employer, or any particular post.

Dealing with the fines imposed upon Fittes and Young for instigating a strike, Mr. Northeroft said ho could find nothing in the magistrate's decision clearly defining the strike. On the other hand, it was perfectly clear that the magistrate was embarrassed, and after attempting to define the "strike," had eventually abandoned the attempt and found that there was delay and inconvenience, and had held this was instigating a strike. Counsel submitted that the decision of the magistrate was not a correct one, and that there had been no strike at all.

In supporting the magistrate's decision, Mr. Berendsen said that he wished to state the plain fact'that on the evidence of' the seafaring witnesses thpmselres it was shown" that it had been $he custom of certain workers, both when at sea or in port, to do certain work in connection with the operating of valves and machinery. Not only had the custom obtained before, but also after the 1024, award, until the instruction riot to do guch duties was issued by the Federation. The refusal of the men tc operate the valves was done in combination, and they either partially broke their terms of employment, or they broke their contract. This, following upon the issue of the circular, he held was instigating a strike, The case was not based upon the,,work carried out in port only, but upon the work at sea also. When in port only certair auxiliaries were running. The rule providing for donkeymen operating valves and machinery only under the specific directions or in the presence of the engineers, Mr. Berendsen considered only applied to occasions when the engineer was not on board. He also pointed out that the words used were "as customary," not "if customary." Notwithstanding the merits or otherwise of the union's contention, he submitted that by taking the action they did an offena had been committed. There was nothino dangerbus about the work of operating valves, it "was not unlawful work, and there was nothing in the rules governing donkeymen and firemen makino- if unlawful for them to look alter machinery "as was customary." He quoted admissions made by witnesses that they had worked valves up to tlv time of receiving the circular issued by the Federation. The Council reserved its decision.