PETROL DRIVERS' DISPUTE

Press, Volume LXXIII, Issue 22136, 5 July 1937, Page 10

PETROL DRIVERS' DISPUTE

HOURS OF WORK AND MEALTIME

INTERPRETATION OP AWARD

CASE ARGUED BEFORE COURT

Decision was reserved in a case heard by the Arbitration Court on Saturday having a bearing on the recent strike by oil company drivers at Auckland. The prosecution against one company was taken to obtain an interpretation of the two principal points over which the dispute occurred: the payment of overtime for work in excess of 40 hours and the payment of overtime for meal-time for drivers on runs away from the depots. The Court held a special Saturday sitting to hear the case. The prosecution was taken against the Vacuum Oil Comany, Ltd., by an inspector of the Labour Department, the claim being for the two following alleged breaches of the Northern, Taranaki, Nelson, Marlborough, Canterbury, and Otago and Southland Motor and Horse Drivers' Award, 1936: That the company employed drivers of petrol-tank waggons 44 hours a week without payment of overtime; that the company employed drivers during the meal hour and failed to pay them overtime rates. The two breaches were alleged to have taken place between December 25 and June 26. Mr Justice O'Regan presided. Associated with him were Messrs A. L. Monteith (workers* representative) and W. Cecil Prime (employers' representative). Mr R. T. Bailey conducted the case for the department and Mr W. J. Mountjoy for the oil company. v. a. «, Mr Mountjoy submitted that the Court should consider the case on broad lines, since it was actually J matter of interpretation and affected oil companies throughout the Dominion. Mr Bailey disagreed, emphasising that the department claimed foi a breach of the award. His Honour pointed out that the case was a pro-e----cution for breach of an pward Drought to secure an interpretation, and that to give a decision the Court would have to interpret the award. ? Mr Mountjoy admitted Mr -Bailey s statement that the facts were that the company's drivers had worked 44 hours a week and had not been pa>d overtime for hours in excess of 40. and that the men had not been tiaid fcr the half-hour meal-time when driving on runs two miles or more from the depot.

Legislative Position

Mi- Bailey quoted relevant award clauses, providing for a 44-hour week, but with the provision that drivers employed in an industry where any lesser number of hours is worked should work the phorter hours. He said that the premises of the defendant company were registered under the Factories Act. and bv an amendment to the legislation last year the hours of work had been reduced :n factories to 40. The Arbitration Court had made an order under the Factories Act provisions that the maximum hours to be worked in factories occunied by the oil companies should be 40, with a five-day week. No doubt it would be contended that the men were not working in 'or about a factory, Mr Bailey said, and so not subject to the shorter hours. If there were any doubts, section 29 of the Shops and Offices Act, 1922. gave the inspector power to determine the point, and stated, inter alia. "Where a person is employed by the same employer in more than one of the establishments of a shop, office, or factory, such persons shall be deemed to be exclusively employed in that establishment in which he is chiefly employed." Evidence would be called to show that the premises of the dedendant in Moorhouse avenue were registered as a factory. Questioned by the Court, Mr Mountjoy said that he would disagree with the contention of the department that everything surrounding a factory or in relation to it constituted a factory.

Opinion Quoted

Mr Bailey submitted several judgments on the points he had raised and in definition nf a factory. Dealing with the second alleged breach he quoted the award provision, that there is sufficient compliance with the mealtime provision for petrol-waggon drivers, when absent from depot at lunch and two miles or more from the depot, if the vehicle is stopped for half an hour to allow for lunch. There was "no corresponding provision in the previous award, he said. Mr Bailey also quoted an Arbitration Court opinion on similar meal-time clauses in previous awards. The opinion of Mr Justice Frazer was that the driver, having to stay by his waggon and having to be on guard, was not free from duty while having the meal, and should be paid for as part of the working time. If his ordinary weekly rate of hours was exceeded he should be paid overtime. The defence would no doubt set up the plea of custom in rebuttal of the charges, but, he submitted, the industrial unions had taken steps to establish their objection to the practice, the secretary of the Wellington Drivers' Union having complained about it in March to the department and the secretary of the Christchurch Union having also complained about that time to the local office. In addition, he would call evidence to show that one company was at present paying overtime and another had been paying for a considerable period.

Evidence of Drivers

Mr Bailey called four petrol-wag-gon drivers to give evidence—William Farquhar Macdonald (Atlantic Union Oil Company), Roy Edmund Ford (Shell Oil Company), Ernest Percy Cox (Vacuum Oil Company), and Alfred Molen (Vacuum Oil Company). Macdonald said that when away from the depot and entitled to take mealtime he was paid for the time, receiving overtime irrespective of total hours worked. Ford said that previous to a week or two back he had been given time off instead of pay for the meal-time. A week or two ago the men had been told to work to the ordinary knocking-ofl time instead of taking the time off. Cox said he was out on the country run often five days a week, had his meals on the truck, but was not paid for the time. He worked occasionally in the factory, he said when cross-examined. If things were slack it was the general practice for drivers to work in the factory. Molen said that the drivers received definite instructions to show the halfhour meal-time on their time-sheets, but did not get paid for them. He often gave a hand in the factory. Francis Cornelius Allerby, secretary of the New Zealand Drivers' Federation, said that he had complained to

the Labour Department about mealtime pay and overtime, but had received no reply. Later, the department had replied to the request about the 40-hour week. To Mr Mountjoy he said that he had not complained to the companies. , , __ In his statament in defence, Mr Mount joy submitted that the section of the Shops and Offices Act dealing with the right of an inspector to determine the nature of. an establishment had no bearing on the factories registered by the oil companies. It was only where shops and offices were included in the installation that the inspector could determine the point. There were no shops in the oil company installations affected by the case. It was submitted that no breach had been committed by working the drivers 44 ho\irs, as it was considered by the defendant that the Drivers' Award gave authority and right to the oil companies to work drivers for 44 hours. The number of workers employed in the oil industry factories in New Zealand was only a small percentage (16.68) of the total employees engaged. It could not be argued that when the court fixed the hours of workers employed in the factories occupied b- oil companies at 40 a week, it had determined the hours of employment of all workers engaged in the industry. To succeed, the plaintiff would have to show that the hours of work of all engaged in the industry of marketmg motor spirit and oil had been fixed by the Court at 40. The defence claimed that such could not be done and that it was not the case. The Court fixed the hours of employment of only the workers in the oil factories, and it was submitted that the fixing by consent of the parties of the hours of a few workers employed in a few factories occupied by the various oil companies did not fix the hours of work" of all the employees of the companies. The drivers employed, not being 'factory workers, were not restricted by the 40-hour order of September 1, 1936. The drivers were definitely held not to be employed in factories, but were outside workers.

Work of Outside Carriers

In support of his contentions, Mr Mountjoy submitted long lists giving the numbers of workers in the companies and the nature of their work. It would be anomalous, he argued later, to restrict the oil companies to a 40hour week, when common carriers who performed cartage work for oil companies could employ workers at 44 hours. The four main companies let out a great deal of their work to those common carriers. He suggested that if any great difficulties arose it might be necessary for the oil companies to set UP an organisation to do such work by common carriers. They were not anxious, of course, to have to do that. Defending on the second alleged breach, Mr Mountjoy said that when the Wellington drivers' award was made provision was made to overcome the need to pay a man for half an hour while he ate his meal on the vehicle, and the clause operated satisfactorily. Workers had not been paid for that time by the oil companies except in an exceptional case. It was submitted that the suggestion that a driver be paid for such time was merely an endeavour to obtain something in addition to what was required to be paid under the award. The language of the relevant clause was clear, and no provision was made for payment. The employers' view was that the clause was intended to overcome the giving of one hour for a meal and payment for such time while the meal was had in such circumstances. The employers' present interpretation of the clause had been fjenerally accepted by the Workers' Union ever since its inclusion in the Wellington drivers' award.

E\ 2nce for Defence

Lionel Wallis Gilbert (warehouse representative for the Vacuum Oil Companv) Richard Ernest Larcombe (for the Shell Oil Company), and James Brown (terminal superintendent for the Atlantic Union Oil Company) were called by Mr Mountjoy to confirm the accuracy of the figures he had quoted. Gilbert said that in a general sense no drivers worked in the factories, but on occasions when they had spare time they were worked about the factories to save them loosing it although not necessarily in factory work. When asked by Mr Bailey whether he had received a request from the Christchurch Labour Department about non-payment of overtime, the witness said he had written back stating that the matter was already in the hands of the department at Wellington. In reply to Mr Monteith, he said he had not included all clerical workers in the factories in the lists of employees supplied to Mr Mountjoy, excluding those not directly engaged in work associated with the factory. Larcombe also stated that he had excluded some clerical workers, including in the list those associated with the factory work. In reply to Mr Bailey, he said he knew the office attached to his firm's factory was classified as a factory. Brown said that the witness Macdonald had been paid overtime only when his time was in excess of 8 J hours. Until the day before the present hearing, witness did not know of the difference in the previous and the existing award, and had continued to pay the drivers for lunch tmie. In his reply, Mr Bailey submitted that the hours worked by common carriers had no bearing on the case, nor did Mr Mountjoy's figures. The wages paid to ordinary carriers would not affect the position. He believed that if they were found to be entering into competition and cutting prices, the Minister for Transport would soon attend to it.

Mr Justice O'Regan, when stating that decision would be reserved, said that it would be given at the earliest possible moment.

DRIVERS' STRIKE IN AUCKLAND

DEPARTMENTAL DELAY IS SUGGESTED

For some time oil companies had been waiting for the Labour Department to deal with the two principal points over which the oil company workers went on strike in Auckland recently. This was indicated by Mr W. J. Mountjoy, the secretary of the Wellington Employers' Association, during the hearing of an Arbitration Court case in the city on Saturday, in which the Court was asked to give a decision on the same two matters. When Mr R. T. Bailey (who conducted the case on Saturday for the Labour Department) had thanked the members of the Court for allocating a special sitting for the hearing, Mr Mountjoy (appearing for the defendant company) also expressed his appreciation and that of witnesses. "We have been waiting for some considerable time for this matter to be considered by the department," he said. "Any delay has been caused by the department having to consider the subject ." Mr Bailey: Not the department in Christchurch. "The difficulty in Auckland came while we were waiting on the department's consideration. Probably this action will remove any cause for further friction." Mr Mountjoy added.