INJURED WOODCUTTER

Dominion, Volume 29, Issue 69, 14 December 1935, Page 13

INJURED WOODCUTTER

Pieceworker or Contractor? COMPENSATION CLAIM Whether a man who cut fallen timber for removal from a paddock was an employee or a contractor was argued at length yesterday before the Arbitration Court in Wellington, when Rolph Joseph Morbeck Terrill, a labourer, of Masterton, claimed compensation for injury from John William Thornton, a carrier and wood merchant, of Masterton. The statement ot claim set out that plaintiff was working on a property from which defendant had the right to take fallen bush. He was cutting wood when the top of his thumb was amputated by the circular saw, so that he was oil work for 11 weeks. He claimed £195. The statement of defence admitted the facts, but maintained that plaintiff was in fact and law au independent contractor, so that, defendant was not liable for compensation. Amendment of Law. Mr. P. J. O'Regan, for plaintiff, said the question to be decided was whether the work being done by plaintiff was piece-work or contract work, his contention being that it was piece-work. Following confusion and injustice which arose, the law had been amended to make mining contractors and bush-fellers workers, but no such provision had been made to cover such work on farms. It was an increasing practice among farmers for draining, clearing and similar work to be done by what was termed contract, not with any intention of evading the law, because both parties generally believed that they were covered by the law till the matter came to be decided by law. In this case defendant had wanted some fallen logs cleared from a paddock and plaintiff offered to do the work. Plaintiff was to cut the logs into fencing posts, battens and fire blocks. Defendant did not want the whole job done at once as he would then have had more wood on his hands than he could dispose of. The arrangement was that plaintiff was to go on cutting till he was told to stop, and he worked for some time, when he was instructed to stop for a, time and was paid after the quantity he had cut was ascertained. He then went to work elsewhere and resumed on the timbercutting when instructed, working for four days, after which the accident occurred.

Plaintiff had a tractor, but the circular saw, the splitting axe, the sledgehammer and the wedges were the property of defendant. The test of the action was whether plaintiff, under the terms of the contract, could work when and where he liked. When an employer could tell an employee to stop work, or instruct him how to work, that was piece-work. This was exactly what happened in this case. Defendant actually stopped the work and started it again, and also instructed plaintiff how to work, giving orders as to whether he needed more stove blocks or fewer battens and so on. Contention of Defence. Mr. W. E. Leicester, for defendant, moved for a non-suit or judgment for defendant. The contract, he said, merely gave plaintiff “the right to cut timber,” which Was quite inconsistent with the theory that plaintiff was an employee of defendant. The only grounds on which it was suggested that plaintiff was subject to the orders of defendant were that advice was given as to where the cutting was to begin and that on one occasion defendant told plaintiff to “go easy on the house blocks.” There was not a tittle of evidence that there was control of plaintiff by defendant. Plaintiff worked when he liked and how he liked, and was not an employee, but a contractor. If plaintiff had been employed it was reasonable to think that defendant would have provided the tractor and paid for its operation, but in fact that was done by plaintiff. The evidence was all one way—simply that defendant told plaintiff that he had wood-cutting rights over some property and that if plaintiff liked he could cut the wood and defendant would pay him. Mr. O'Regan countered witji the contention that defendant could and did exercise control over the work, ns he stopped the operations when he liked, the first and certain test of piece-work. The court reserved its decision.

Mr. Justice Page, with Mr. W. Cecil Prime (employers’ assessor) and Mr. A. L. Monteith (employees’ assessor) heard the case.