WORKER’S STATUS

Press, Volume LXXVI, Issue 23001, 22 April 1940, Page 11

WORKER’S STATUS

UNDER WHICH AWARD? - % * DEFINITION BY COURT OF APPEAL DOCTRINE OF SUBSTANTIAL EMPLOYMENT (PRESS ASSOCIATION TELEGRAM.) WELLINGTON, Aprl 19. Decisions by the Court of Arbitration to the effect that even s’’ght employment on a weekly basis overrides all other considerations in other awards formed the basis of an Appeal Court case in which judgment was given today. Arthur Bruce Wilson, of Culverden, a clerk, had claimed from Dalgety and Company, Ltd., £ll3 4s Gd, representing the difference between his wage as a clerk from July, 1938, to the end of 1939, and the wage he would have received under the Northern, Wellington. Westland, Canterbury, Otago, and Southland Retail Grocers’ Assistants’ and Drivers’ Award, dated August, 1938. When the case v;as heard it was stated that the defendant company did not cater or supply the general public apart from its own particular clients, and no invitation was held out to the public. Only a relatively small percentage of the retail business consisted of the supply of groceries to farmer clients. ; Wilson’s status, while in the employ of the defendant company, was regarded by himselt and the company as that of a clerk. Including his clerical work in connexion with groceries, the percentage of time spent by him m dealing with groceries in proportion to the whole of his duty would be be ; tween 2 and 3 per cent, working time. Judgments by the Full Court to-day agreed .{hat Wilson was not entitled to succeed as he did not fall within the provisions of the above-mentioned award. Judgment was entered for the defendant company. The Chief Justice (the Rt. Hon. Sir Michael Myers), in his judgment, found that the plaintiff Wilson was a member of the Canterbury Stock and Station Agents’ Clerical Workers’ Industrial Association of Workers, and was not a member of the New Zealand Federated Shop Assistants' Industrial Union of Workers. , , ... His Honour discussed the principle to be applied to resolve difficulties which arise when a worker is a member of more than one union and affected by more than one award or industrial. agreement. Ruling on Conflict "But all that I have so far said, though it is sufficient to determine this case on its actual facts, would not solve the problem if a worker, in fact were a member of the Grocers’ Assistants’ Union as well as of the Clerical Workers’ Association. Some principle or test must then be applied to resolve the conflict arising from the existence of two unrelated awards or -industrial agreements, or’ of one award and unrelated industrial agreement. "The only reasonable and satisfactory principle or test to be applied on such a case has always been, and still is, recognised by the Court of Arbitration to be, what is called the doctrine of ’substantial employment, and it is undisputed and indisputable, that, if that is the correct test, the plaintiff cannot succeed, inasmuch as his employment is overwhelmingly that of a clerk, and comes under the Clerical Employees’ Industrial Agreement. “It is not necessary to refer to the numerous decisons laying down and applying that test. It is sufficient to say that it has already been recognised as existing, unaffected by the 1936 act by the Court of Arbitration, whose awards must be assumed therefore (at least in the absence of express language to the contrary) to incorporate this doctrine of ‘substantial employ“ffis' Honour said he had found the case most interesting, /and he believed it would prove a most important one.