APPEAL BROUGHT BY UNION

Press, Volume LXXVII, Issue 23401, 7 August 1941, Page 5

APPEAL BROUGHT BY UNION

MAN EMPLOYED BY MILK BAR

MAGISTRATE’S JUDGMENT QUESTIONED

Whether a man employed regularly to scrub out a milk-bar,, working on an average one hour and a quarter a day, and paid £1 Is a week, should be regarded as a weekly worker under the Hotel and Restaurant Employees Award, and be paid accordingly, was argued before Mr Justice Tyndall, m the Court of Arbitration yesterday. The case was an appeal by the Hotel and Restaurant Employees’ Union (Mr K. G. Archer) against a judgment of Mr G. G. Chisholm, S.M., in the Magistrate’s Court on July 11. Mr Chisholm’s judgment was in a claim bv the union against R. A. McEwin, milk-bar proprietor, Colombo street, for a penalty of £lO for each of four alleged breaches of the award. The union alleged that the defendant had employed George Alexander Milne as a night porter, without paying him award wages, had failed to keep a time and wages book, failed to keep a holiday book, and employed as a night porter a man not a member of the union. Mr Chisholm found that the cleaning work done by Milne was not subject to the award, and gave judgment for the defendant He did * not accept the proposition of the union that the work done by Milne, was, in itself, enough to constitute him a night porter under the award, and was of the opinion that no breach of the award had been committed. Mr R. A. Young opposed the appeal for McEwin.- With Mr Justice Tyndall were Mr W. Cecil Prime (employers’ representative) and Mr A. L. Monteith (employees’ representative). Mr Archer contended that the Magistrate’s judgment was erroneous in law. The substantial question was whether Milne was a worker under the award.

The award provided for a large number of classes of workers, but except in one or two instances did not define their duties. It followed that the duties of a large number of workers must be defined by the custom in the trade. Employment was weekly employment, and no employee was to. be engaged at less than the weekly rate prescribed. Provision for Cleaning Cleaning, said Mr Archer, had always been recognised as part of the work of a tearoom worker, and cleaning done at night was the work of a night porter. This explained why cleaners were, not specifically mentioned in the award. The whole scheme of the award was to prevent casual work of this sort, and the cleaning

could be done by a general band, who could start an hour earlier and then carry on serving in the bar. The union contended that it was trying to uphold the principle of weekly employment, which it had fought for and gained, and which had been accepted by both parties. The respondent's attitude was obviously an attempt to break down this principle. Mr Young submitted that there had been no complaint by the man or by the Labour Department, but only by the union. ‘‘The claim is puerile,” he said, “and if these were not such trying days it would be treated as''childish.” The whole appeal must fail, because the Magistrate had held as a matter of fact, that the' man was not a night-porter, if for no other reason. The worker was defined by what was done, not by- where it was done. If the appellant’s case succeeded, thousands of such cases could be brought all over the Dominion. The Court reserved its decision.