ARBITRATION COURT.

Dominion, Volume 1, Issue 169, 10 April 1908, Page 5

ARBITRATION COURT.

: —■&- \ / RESERVED JUDCMENTS. | The following reserved judgments of tlio Court of Ai filtration wore received 'yesterday by the Clerk of Awards (Mr. A. Stubbs)': — PAINTERS' AND DECORATORS' AJJYARD. LEG ALITY OF PREFERENCE.', Tho Court stated that tho case Inspector of Awards v. Luko Mounter—in which a broach of the Painters' and Decorators' award was alleged—involved an important point.. Respondent was engaged by R. and E, Tingey and Co., Ltd., as a sign-writer and glass embosser for a term of two years from May 27, 1907, and has been working for the company since/ that date. Tho award, which was made in June, 1907, pro-, vides, inter alia, that " all journeymen at presont working for .any employer and who are not members of tho workers' union shall beco'mo members within two weeks from ,th'e time of the award coming into 'operation:" Respondent had refused to join tho Union, and the proceedings wero brought to enforce the provisions of tho award. AVhcn tho caso camo beforo the Court, ■ Mr. Buddie,' who appeared for tho respondent, contended that his client was not bound by the preference clause, because in the first ,-place, as non-unionist members could not bo represented beforo a Conciliation Board or tho Arbitration Court on tho hearing of an industrial dispute, the Court had no jurisdiction to deal in : any award with the rights and duties of non-unionist workers, and in tho second placo tho claim to have a provision such as .that made could npt .be the subject of a dispute with regard to industrial matters as defined in Section 2 of tho Industrial Conciliation and Arbitra-tion-Act, 1905.

■ It . was; quito true, tho Court said; that tho rights of non-unionist workers could not be,affected by tile provisions of ail industrial agreement or by the recommendation of a Conciliation 1 Board, jvhich, when it became binding on tlio parties,, operated as'if it had been an industrial , agreement made by tho parties-themselves. An award of tho Court ' -had, however, a wider operation. It bound ■'by- foroo of tho-Act any' employer who entered into-business in the industry affected by tlio award after it had been made, an'd it also by force of the Act, extended to awl bound/every worker who was'/at any time, whilst-vit is in forco employed by any cm-' ployer ,on whom - the award was • ■ binding. Tho language of Section .8 was quite clear, arid.-'ito effect'was to make'an award binding oir overy worker employed by- any employer bound thereby, whether, such- worker was or was I 'not a member of-a Union,- 'and; whether such .worker . was in, the employment of. such employer at the date when the award camo into-forco, or. entered such employment afterwards. If, therefore, the Court had juris-diction-to mako ah award a provision/by which all non-unionist journeymen ■working for -an employer at -tho date when the -award came into forco .were, obliged 'to ■become memb'ers of the Union within a specified' time; then the provision now tiflder co'nslilcration was, binding on the respondent. •' •TKe, only question to bo determined was, th.e'Courtjbbntinued;.'whether tho. Court had jurisdiction--to insert such ,a provision in it-s award. It , had been held in 'the Court of Appeal that had jurisdiction', to direct in an . 'award that , employment ; should b"o given to unionists'in preference to-non-, unionists. ' That was .decided under the Act of /1694, which' did- riot provide, as-the Acts of .1900 and 1905 provide,' that ■" industrial matters should include tho claim of members of,a Union toxbo employed in preference- to non-members. It was held that a disputed claim' to preference 'was a disputo as-t.o tho status of-a- workman, that it, was, also a. dispute as to the employriient of persons' or/of a class of persons, 'and also '/camp; .wjtbin- tho, general definition: of. a lriatter relating to. tho' rights '■ privileges of'employers workmen.' It arneared te tlio Court that that , decision really covered ihp .-'present case. , The awarfl m . question, liowWer",'went further tliiirt did/the projiosed aiyard in''the'case decided by tho Court of Appeal, because iii'. that prdposf-d preference clause |did \iot, according.to the view of the' Court' ot 'Ajipeai, curuouiy. afipct tho legal .'rights of. the non-unionist ■ worker, •whereas in the present case liis rights were directly/'affected by imposing' on him tlio duty of joining a Union. Tho Arbitration Court did not think, however, that that. distinction affected tho 'validity I *of the award. Every aWrd which fixed a minimum wago was, ' binding on all classes, of, .workers, 'although the: effect was to , deprive a nonunionist of his right to work for a wago less than that fixed by ;the award. Tho fact.that -any i particular- provision of , an award affected; the rights of. non-unionists seemed therefore .to .be no'reason for saying that such. provisiori had been. ' mado; without .jurisdiction. ' ' ; , /' ... ,'- • The;Coprt.held that there was jurisdiction to insert' in -the award tho/provision- in question, jnd that the respondent was bound thereby. If the respondent'within fourteen days from the date, of tlio judgment did alii that was . necessary on his part, to' becomo a/member of tho Union, a breach would bo recorded, but if ho failed to,do so tho Court wo;uld consider at. tho next -regular sitting of .tlio .Court in Wellington-.'wlrat penalty should bo imposed. Tho respondent was ordered to pay tlio inspector's disbursements for/fees of Court.Mr.' D./M., Findlay appeared on behalf of, the Inspector of Awards, and Mr. Buddie for the respondent. .' '■ ' A SIMILAR CASE. ■ - Tho case, Inspector of Awards v. Arthur, R. : - Cattanach —analleged breach of ; the Painters' and Decorators' award—was, tho Court stated, similar •to tho caso 1 just cided. - ,'Respondont was. engaged by R.; and E. Tingey and Co., Ltd., as a sign-writer and glass; embosser for a 1 term of two ydars and six mbriths.'from ilay 27, 1907, and. had been in-the employment of the company since that date. . Ho had refused to join ;tho Union,' .and clairiied that, asN tho work in which ho /was-.engaged was designing decorative! glass work, ho was an art craftsman, and was nota: journeyman Within the meaning of Clauso 1 of -tho award. Tho' - award included,' inter alia, glaziers, sign-writers, (lecoratbrs, and all other journcymbn working at any. i branch of tlio'trade.; Cattanach was described in_ his agreoment with his omployer as a signwriter and glass embosser, and.the Court was satisfied that ho was a journeyman within tho meaning of tlio award, and was bound by 'its provisions. Ho had committed, a breach of award by refusing 'to' join' the Union,'and the Court would mako, tho same order in this caso as was made in Mounter's case.' ■' • Mr. D./M. Findlay appeared for the Inspector, ■ and the respondent conducted his own, case. , .'"- APPRENTICE OR JOURNEYMAN? The judgment in tho case Painters' and : Union v. Standidge and Co.—a chargo,of having paid a journeyman named' Trudgeon less .than tho award rate of wages during June, July, August, and September, 1907—was ■ also given It "was admitted, the Court stated,- that Trudgeon was paid only £2 per week {luring the ; period in quostiori, but it was claimed, on behalf of tho respondents, that Trudgeon, •was '.tlioir apprentice, and. that, therefore, thoy'/wero not bound to pay, him the wages prescribed .for a journeyman. A document .was produced, bearing tho date 4 May 25, 1903, . which purported to bind ' Trudgeon as. an apprentice'to. tho respondents for the 'term of five years from the date of the document,- the wages to be paid being those proscribed for apprentices by the award made in 1902. This document, although purporting to havo been made in 1903, was not executed -until January, 1906. It appeared that-.Trudgeon, who was.then about 20 years of age, worked for tlio respondents for two or,three days in January, 1906,- as a journeyman. He returned a few days afterwards and asked to be taken on as ail apprentice. An arrangement was made by which he was to'bo taken on as an apprentice for about two years. It was said that lie' had served only three years as an apprentice, and did not know the business of papc.rhanging, and wished to complete his apprenticeship. Tho dooumcnt already referred to was then prepared and executed.

There had, the Court pointed out, been eases in which the Court had held that a worker who had riot served a full apprenticeship, and who was not a competent journeyman in his trade, might bo apprenticed for tho balance of the proper term, > but it was necessary for the parties who relied on such an arrangement to bo Sble to prove clearly that it had been made'bona fide, and not for tho purpose of ovading tho provisions of an award with regard to tho minimum wage. In the present case, tho respondents had failed to satisfy the Court of this, and thero wore grounds for suspecting that the apprenticeship wa"s simply a devico . for ovading payment of tho minimum wage prescribed by the award. These grounds might bo summarised shortly thus: (a) The document produced did not st'ato correctly 1 tho arrangement said to have been made. .Tho term of the supposed apprenticeship • was to bo two years and some months, and not five years, as stated. The wages wero to be £2 per week, and not those, stated in the document; .(b) tho respondents were unablo'tb give any definite information in con- . noction with tho previous apprenticeship of threo years which Trudgcon was supposed to have sorved; (c) Trudgeon, before entering \into the arrangement, .had been working for .different employers at full wag6s, and seemed to be quito capable of earning tho Wages of a competent journeyman; The Court found, therefore, that the respondents had failed' to provo that the apprenticeship was a bona fide arrangement, and held that the respondents had committed a breach of award by paying Trudgeon less than'the award rate of wages. It imposed a penalty of £5, to be paid to tho Union, and allowed the Union £3 3s. for costs, .with' disbursements and .witnesses' expense's to be fixed by the.Clerk of Awards. Mr. D. M. Findlay appeared on behalf of the' ! Union, arid Mr. Herdman for the respondents. I . TYPOGRAPHICAL AWARD. RATE FOR LABOUR DAY. ' Judgment, in -the cases Inspector of Awards v. Blundoll Bros;, Ltd., the"N.Z.-Times" Co., Ltd.,' and the Wellington Publishing Co., Ltd. (which were heard together) is as follows:— I '. The Court said that the same question was involved in each case as to the construction of Clause 3 of tho Wellington 'J;pograpliical Award in connection with machines, 'i'he clause provided that any operator or apprentice required to work,on Christmas Day or Good Friday shall be paid at -liable rates,"" and if required' to work on ; New Year's, Day or Labour Day shall bo raid at time and a half rates or at: a corresponding rate for piecework. / .The respondents employed their linotype operators at the weekly wago prescribed by Clause 4 of the 'awa d. They -were required ,'toi work and ,-did work on Labour Day, but'were paid:only, half time iri. addition to,: their weeldy' wage for ' the work done on Labour-. Day.. Tho question which tho Court had ( to ..determine was whether the operators fought been ,paid atthe :'rate vof.'time; and a' half for this work in addition to tho weekly wage. The Court pointed out that it had not boon the custom of employers, to make any deduction • from ■ tlio weekly, wage: for time •lost through holidays, - and,- the right of weekly hands to: be paid, for. thp. specified holidays was oxpressly, recognised" by -the provision iri' Clause.. 3' to the effect that if the holidays .were given all operators shall be;paid for them' at time, rates. The position, therefore, was this:.; An operator was entitled to be paid' his full Weekly;, wage for the week in which any of the specified holidays . occur, although, he did 'not do. any work on that' particular holiday. If, howeyor,'Jie; was required to work on sucli holiday, -..then lie was, entitled, the' Court thought, to ho paid at the specified rate for the.wo'rk done on that, day.;,in addition to his weekly wage. Thus, if lie .worked on Labour' Day, he ; was'entitled to be paid at the, rate : of timo'i and- a half: for. such work in addition to liis weekly wage. -To' hold otherwiso and accept*' the. construction' which tho respondents' had .'invited "the: Court to put, oil tho clause would lead-to this l result: Ari operator who was a weekly,-wagbhand was entitled to bo' paid ?his. full weekly wage Without ■ doing any work on .Labour Day, and,-if,ho Forked oir Labour Day; lie Would bo A paid for the'work doiio - day one. half only of tJie rato which lie was paid for ..work dono on other days. \The construction contended, for by tho respondents .' would also ' produce a remarkable difference , betiyeen ; tho rate , to bo paid to weekly hands and 'pieceworkers for work doiio on Labour Day.' A pieceworker was; not ' entitled to be paid in respect of holidays save fpr work done on such holidays; For work done'oil Labour Day a pieceworker was entitled, therefore,to :bo paid in terms of tho 1 award at a. rato .corresponding to time and''a half, but, according to tho construction, ! a weekly, hand was : only, entitled to bo paid at the rate of, half time in- addition -to ■ his weekly wage. Iri other words,' a pieceworker was entitled to be paid at least three times as much as a' weekly hand for the vory samo work when it'had'been done' on Labour Day. It appeared to "the Court that a construction 'which 1 produced such results as these could riot bo the proper construction to be, put on the language of- the-award, and ■any c.ustom to pay in accordance with such a construction was inconsistent with the provisions of, the " award. A custom could not be relied oil if it wa3 inconsistent with the provisions of an award. , ' ' Tho Court; hold, therefore, thai tho respondents . had committed a breach of , award by paying the workers in question at tho rate of half time only, in addition to their weekly wage,; for ,work done on Labour Day, but, as the cases had been -brought to have tho question settled, it would not impose any penalty. Tho respondents would, how.over, be inquired to pay, the 1 costs of : the proceedings, which were fixed at £5 55., with disbursement's'. arid witncsscs's expenses to be fixed by the' Clerk of Awards. Those costs wore to bo paid by the'three respondents in equal shares. Mr. D. M. Findlay appeared for tho Inspector, and Mr. Herdman for the respondents. \ ■ i