S.M. COURT.

Bush Advocate, Volume XXII, Issue 34, 10 February 1910, Page 6

S.M. COURT.

INSPECTOR OF AWARDS v. FRANKLIN. The judgment was a very lengthy one. After outlining the facts and setting * out the law on the subject, the judgment proceeded : To hold, as was contended for by plaintiff, that any and every refusal by workers to obey orders, or that any and every- dismissal of workers, even though the industry is governed by an award, is, in the one case, a strike, and in the other, a lock out, unless the opinion of the Conciliation Commissioners or the Arbitration Court has been lirst obtained, would be to paralyse every industry in the Dominion. Notwithstanding clauses' llx and 19 of the award, I do nob think that it is intended to vest in the employer, alone, the right to determine whether sheep are wet or dry. In order to take away from a worker , bound by an award, the right to resist an unreasonable order, as, for example, an order to shear wet sheep, the terms of the award would require to be clear ana explicit. Here the so-called exclusive light of the employer to determine the wetness or dryness of sheep abolit to be shorn, can only be gathered by Implication, and the true construction of the award is that no such right exists. In order to determine the reasonableness or otherwise oi the action of defendant's agent, one has first to determine, therefore, whether the sheep were wet or dry when the order to continue shearing was given. If the sheep were wet, that action was unreasonable. The men would have been, therefore, within their rights in refusing to shear, and .the manager's act in dismissing them for so refusing,* would constitute a lockout. On the other hand, if the sheep were dry, the manager's act in insisting on the snearing opeartions being continued was lawful, and the concerted action of the men in refusing to obey the order to continue shearing, and in leaving their employment, amounted to a strike. In determining whether any particular act of circumstances amounts to a strike or a lockout, one has to look 1;o the respective intentions of each party (see per "Sim, J., in Inspector of Awards v. the Consolidated Goldfields of New Zealand, VIII. Awards ; 243), and that party, whether worker Jpr employer, who is merely doing in -a reasonable way a lawful act consonant with the terms of the employment cannot, in my opinion, be penalised under section 5 of the amending Act, even although he acts before reference is made either to the Conciliation Commissioners or the Arbitration Court. Were the sheep, then, wet or dry on the morning of the 4th November? There is a serious conflict of testimony on this point between the witnesses called for plain■fciff and those called for defendant. Shearing commenced on the 2nd November, 1909, the shearers having arrived the day before. The shearers concerned are those named in the information, all of whom, save Campbell, were called as witnesses for the plaintiff. When the shearers arrived on the evening of the Ist, there were about 550 sheep collected in the shed. 'The shearers examined these sheep and although one of them, a man named Deighton, said they were damp, 'the shearers' representative, one Berkahn, was of opinion, before shearing was started on the 2nd, they were dry, and it was decided to start shearing. No complaint was made by the shearers, or any of them, as to wetness, until about 6 o'clock on the morning of the 4th November. All the sheep put in on the evening of the Ist were not shorn on the night of the_second, when 'the shed was again tilled up. On the morning of the 3rd about 160 more sheep were got in. The number of sheep placed in the shed up to the morning of the '4th, when the complaint was made, was, therefore,, about 1150 or 1200. The state of. the weather in the locality, at the time, I have arrived at after carefully considering the evidence of all the witnesses, especially that of defendant and Messrs Wells, CCovejoy, and Stuart, the latter of ;whom are three local flockowners independent of defendant, whose holdings are quite close, and whose evidence there is no valid reason for disbelieving. The ~ 31st October was 7showery. The Ist November was v>vindy and cloudy, but there was no 'rain. It was a good drying day. The s2nd November was fine, bright, and Ssunny. The 3rd November was fine first thing, but dull the rest of the day, with slight showers in the .morning, whiph came on occasionally between half-past eight and about a to ten. There Avas also one slight shower in the afternoon about J2 o'clock. This lasted a few, minutes sand consisted of only flying scud. The4th was a fine day. Mr Wells stopped shearing on the 3rd November at dinner time because "lie had no more dry sheep and rain had meantime fallen, but the sheep got in On that night were then dry and fit to shear on the 4th, and he shore ■all that day. Mr Stuart was able to shear each day without a break from the 2nd to tlie morning of the 6th,

Wednesday, the third, included. Mr Lovejoy had a similar experience to that of Mr Wells. In addition he handled some of defendant's wool shorn on the afternoon of the 3rd and found it dry, and inspected the sheep then in the shed and found them dry, He, however, did not handle any of the sheep brought in on the afternoon of the 3rd. Now, let us look at the working of defendant's sheep in the shearing shed between the mornings of the 2nd and 4th -November, both inclusive, and it must here be remarked this evidence was for all practical purposes uncontradicted. On the morning of the 2nd, the wool of the 550 sheep, which had been put in the shed the night before, was dry. This fact is corroborated by the shearers' representative, Berkahn. All these sheep had not been shorn on the night of the 2nd, when, as we have seen, the shed was again filled. We must assume these last sheep to be dry because no complaint was made as to their wetness, although the shearers

shore all day on the 2nd. However, we have already found that the 2nd was ali that could be desired for shearing purposes. The last lot of sheep was placed in the shed on the afternoon of the 3rd, after a slight shower. A start was not made on these sheep till o minutes after 5 p.m., and although some of the shearers deposed the last few sheep they shore were wet, yet, no complaint was made, the reason given being that it was so close to knockoff time—half-past 5. However, a start was made on the morning of the 4th without any complaint being made as to wetness. After a few sheep had been shorn, however, a complaint was made subsequent to the taking -of a vote of the shearers, when by a majority of 4 to 2, they decided the sheep were wet. The minority consistd of Messrs Campbell and Sattrup. As a result of this vote, the sheep were turned out from 6 till about half-past nine a.m. Now defendant describes the 4th as a beautiful, fine day. In this she is corroborated by Messrs Wells, Stuart, and Lovejoy, who, notwithstanding the occasional showers the day before, were all able to continue operations during the whole of the 4th, though they suspended operations on the afternoon of the 3rd. The reason defendant shore all day on the 3rd was that he had dry sheep to operate on, whereas Msesrs Wells and Lovejoy were wtihout dry sheep after midday on the third. Now, the shearers all deposed that when the sheep were again placed in defendant's shed at half-past 9, they were as wet as they had been before being turned out. The witness Sattrup stating that "he ran his arm along the fleece and that he could then wipe the water off with a knife." Now this witness, although his vote /3 and that of Campbell, may not have been tantamount to an affirmation of dryness, yet he would not give his vote to declare th esheep wet, whilst the sheep had only been subject to one or two slight showers on the 3rd. After the vote, the sheep Avere turned out on a fine day, the fourth, and remained out for three hours, and yet, Sattrup's evidence is that, after being so turned out, the sheep were dripping wet. This circumstance alone, taints his evidence with the vice of exaggeration, and, when Ave consider the evidence of the Avitness Turnbuil, Avho is not Avorkiug for defendant, Avas not cross-examined, and avlio stated that the minority voter, Campbell, as Avell as Berkahn, informed him after they had left the shed that if it had not been for one man there would have been no trouble at all, very grave doubts, in-

deed, is cast on the evidence of the other shearers. But further, the two sous of defendant, Frank and James, each state that on the two occasions when the representative, Berkahn, called on them, once in the engine shed and once in the wool room, to give the result of the two ballots as to the continuance of shearing, he expressed his sorrow at the result, stated, in his opinion, the sheep were dry, that it was ail the fault of one man, and if he could be of any assistance in getting more shearers he would be happy to assist. Berkahu admits that these two interviews took place, but states he did not make use of the language attributed to him by the Messrs Franklin. The evidence of the witness Turnbull is clear on this point, and is that "Berkahn said lie was the men's representative. The row was about the sheep. He was sorry he had to go, because it was a good shed, and he did not want to lose it. The row was about wet sheep. He did not say why the row occurred. If it had not been for one man there would have been no trouble at all.*Here again Berkahn admitted the conversation but denied the details. The one man to whom Berkahn referred was the shearer Deighton. James Franklin's evidence is that Deighton was intriguing with the other shearers from first to last and dominated the situation. It is only, one some such hypothesis, that the conduct and evidence of the shearers, viewed in the light of the surrounding circumstances, is capable of explanation. So far, then, from the sheep being wet on the morning of the 4th, I am forced to the conclusion they were dry. The conclusion therefore follows, that the act of defendant's manager did not amount to a lockout, whilst the men's conduct, acting as they did, in concert, constituted a strike. I was referred to the remarks of Sim, J., in the Inpsector of Awards v. Blackball Miners' Union (IX. Awards, p. 56). That case was, however, the case of a demand made by the min ers, through their union, inconsistent with the terms of employment, and, it is to be observed that, in the case of the Inspector of Awards v. Gisborne slaughtermen (VIII. Awards 146). Sim, J., at page 150 concedes the positions that if an employee acts unreasonably in carrying out his duties, the employer is justified in dismissing him, whilst as to the remarks of Sim, J., in Inspector of Awards v. Mangahua gold miners (Vlll. Awards 243), the object of the defendant's manager in the present case was not to force the men to comply with an order inconsistent with the term of employment, but he was merely insisting on the men obeying a reasonable command, well within th scope of their duties to their employer. In my opinion judgment should go for the defendant, and as she has been called on to defend an action of her manager, which, in the result, has been found to be not only justifiable, but reasonable, I think that plaintiff should be ordered to pay defendant's costs. Judgment accordingly.

YESTERDAY. (Before Mr S. McCarthy, S.M.) Dannevirke-Herbertville Coaching Company v. H. Key worth, claim £B, amount due for eight weeks' accommodation for the stallion Lord Bobs and a hack. Mr Lloyd appeared for the plaintiff company and Mr Fitzherbert for defendant.

J. Flinn, clerk to the company, deposed that the amount claimed was due and owing to the company. The charges were fair and reasonable. No special arrangement was made with him regarding the charges. Such arrangement may have been made with the manager. The charge was for a loose-box and some feed which had been supplied to defendant. Witness had asked defendant about the account, but he had given an evasive answer.

The defence was that a specific contract had been entered into by the company with defendant to supply him with a loose-box at 10s per week for the season. The company had terminated that contract at racetime, and consequently defendant now refused to pay. Mr Fitzherbert called defendant, who deposed that he had made an arrangement with Mr Prenter for a loose-box at 10s per week for the season. On the morning of the races Mr Flinn came to him and said he (witness) would have to get out. Witness declined to recognise Flinn. Subsequently Mr Prenter came to him and repeated the request to leave as they wanted the box. Witness asked where he was to go, but Mr Prenter said he did not know. Witness went to look for another box, and when he came back he found his gear thrown out of the box. He got another loose-box at 2s 6d per week. The charge of £1 was exorbitant.

To Mr Lloyd: Witness had not tried to get into another stable. Mr Hunter had not told him that he would not have him at £3 per week. He always bought his own feed, biit he did not know whether it was paid for or not.

To Mr Fitzherbert: He had never been sued for debt before; he always paid everyone. P. Vaile, livery stable-keeper, deposed that 10s per week was a failprice to charge for a loose-box without feeding. J. Eaton, livery stable-keeper, deposed that 15s per week was a fair price for a box for a week. He would not have a stallion on his place at 10s per week, and he had refused to have a stallion in his stable this season.

Mr Lloyd at this stage asked leave to call Mr Prenter in rebuttal on the question of the specific agreement which defendant said had been made. Mr Fitzherbert objected, but his Worship held that the evidence was admissable.