EMPLOYERS WIN.

Dominion, Volume 4, Issue 1170, 4 July 1911, Page 2

EMPLOYERS WIN.

KING'S BIRTHDAY QUESTION. DEPARTMENT'S " UNFORTUNATE ATTEMPT." "PLAYING IS NOT WORKING." The judgment of the Arbitration Court in the test case, Inspector of Awards v. Wardell Bros, and Co., of Wellington, was issued yesterday through the Clerk of Awards. Proceedings in this case were instituted at tho instance of the Minister for Labour to determine the merits of the recent disagreement between the Department of Labour and (he grocers of Wellington as to whether the shops of the latter should have been closed 011 tho Wednesday afternoon previous to tho King's Birthday (June 3), which fell on a Saturday, and on which date they closed. The allegation was that tho ilefendants (Messrs. Wardell Bros, and Co.), in keeping open on Wednesday alternoon —the statutory half-holiday under tho Shops and Oliices Act, l'JUS—and notwithstanding tho fact that they closed 011 tiio Saturday, committed a breach of the Wellington Grocers' Award, which states, inter alia:

"An ordinary week's work shall consist of fifty-two hours. Employers shall arrange the working hours of their respective businesses that ordinary working hours shall on four days of the week Ixi between 8 a.m. and (i p.m.; on tho day of the statutory half-holiday between tho hours of 8 a.m. and 1 p.m., and 011 tho day of the. late night between tho hours of 8 a.21. and 10 p.m." The f;uestion is whether in the circumstances tho defendants were guilty of a breach of award. "It was contended by the inspector," said his Honour, "that Wednesday must Ik? treated as being for the purposes of the award tho day of tho statutory half-holiday in any week, whether or not it was also the statutory closing day in any particular week under the Shops and Offices Act. It appears to us that this contention is not sound. The expression 'the day of the statutory half-holiday' used in tho award must be treated as' meaning tho saino thing as 'the statutory closing day' used in the Shops and Offices Act, and. in order to ascertain what; day is tho day of the statutory half-holiday reference must be made to tho provisions of that Act. In Wellington the statutory closing day under the Act is Wednesday, nnd that day, therefore, in ordinary circumstances, is the day of the statutory half-holiday under the award. Section 10 of Hie Act, however, gives every occupier of a shop the right to substitute for Hie statutory closing day such one of the. special days mentioned in that Section as falls in the samo week. II an occupier, in exercise of that right, closes his shop on such special day,. then that special day is for him the statutory closing day under the Act, and also the day of the statutory half-holiday under the award. Tho birthday of the reigning Sovereign is one of the spccial days mentioned in Section 10 of the Act, and tho defendants were entitled, therefore, to observe the halfholiday 011 that day instead of on Wednesday. In order to succeed in the present case it was really necessary for tho inspector to prove that what the defendants did amounted to an offence under the Shops and Offices Act, but admittedly it was not that.

"The breach alleged in tho statement of claim is that the defendants employed an assistant afte* 1 p.m. on the day of the statutory half-holiday, and did not pay him overtime. Tho right to be paid overtime arises under Clause 2 of tho award only when tho 52 hours per week have been exceeded. For the purposes of ascertaining whether they liave been exceeded or not, a holiday is not to bo treated as n working day. and the King's Birthday, which is a holiday under the award, must; bo excluded from the calculation of the working hours. A right to overtime in the present ease could only arise• if could bo 'treated"as a;•"ro'rlnng''*day?*sß' K as to mako the hours of work to exceed 52.

."The Court has had occasion to decide that'.sleeping is not' working for the purposes of'.an award. . It, is necessary now to decide that playing'on a holiday cannot be treated as working, unless, indeed, the worker conberned happens to have tho advantage of an award such as the Wellington ■ butchers, which provides that holidays are to count as working days. Tlie Grocers' Award does not contain any such provision, and a grocer's assistant, therefore, is not entitled to claim that when away enjoying a holiday he is to be treated as working in his employer's shop. That is the view on' which all parties have acted sinco the first award was made in 1902 until-the present case arose, and it is unfortunate that any attempt has been made to disturb the existing practice on the subject. The only, excuso for the attempt appears to be an interpretation given by this Court recently in connection , with the Wellington Drivers' Award, in which it was laid down that the provisions of Section 19 of the Shops and Offices Act did not affect the construction of that award. T>nt that interpretation is 1 not an authority as to the meaning of the Grocers' AVard. Tho •Drivers' Award was made to bind employers as employers of drivers, and not as occupiers of shops, and fixed' the hours of work without any reference, express or inmlicd, to the Shops and Offices Act. The Grocers' Award, on the other hand, binds employers as emnloycrs of shop assistants. The hours of work were fixed with express reference to the Shops and Office* Act. and the meaning of the exnresMon 'the day of the statutory lialfholidav' can only bo ascertained from a consideration of the provisions of that Act. These provisions were thus incorporated pro tan to into the award, which must be interpreted in the light of those provisions." Judgment was therefore given for the defendant with 3s. costs. Air. T?. A. Borland, Inspector, apneared for the Labour Department, and Mr. T. S. Weston for the defendants.