REFUSAL TO WORK

Dominion, Volume 31, Issue 127, 23 February 1938, Page 16

REFUSAL TO WORK

Action Brought Against Watersiders PENALTY SOUGHT Loading Of The Port Gisborne The refusal of a gang of twelve men to load the Port Gisborne during the tea hour on January 13 was the basis of a claim brought in the Magistrates’ Court, Wellington, yesterday. Under Section 129 of the Industrial Conciliation and Arbitration Act a penalty of £5 was claimed from each of the men bj> their employers, Messrs. Gannaway and Company, Ltd., stevedores, of Wellington, who alleged a breach of the New Zealand waterside workers’ award. After evidence had been heard for plaintiffs and legal submissions made, the case was adjourned sine die pending judgment on the legal position. If necessary evidence will be taken for the defence.

Defendants were W. Anderson, D. Bramwell, A. Davie, J. A. Dooley, D. Duffy, T. Hassett, J. O. Mclntyre, N. Pulsford, A. C. Piper, H. T. Riley, W. Eeid and J. A. Young. \ The case was heard by Mr. J. H. 'Luxford, S.M. Plaintiffs were represented by Mr. W. P. Shorland and defendants by Mr. R. Hardie Boys. The workers were alleged to have committed a breach of clause 19 (b) of the New Zealand Waterside Workers’ Award, which provides as follows: — “Men shall work during meal hours if required to do so, and, except- as herein otherwise provided, shall be paid at the rate of double ordinary time for the full hour (breakfast, dinner, tea or supper) if the ship or job is not finished during the meal hour. If the ship or job is finishing during the meal hour, and the men work half an hour or less of such meal hour the full halfhour shall be paid for. If more than half an hour of the meal hour is worked and the ship or job is finishing during the meal hour, the full meal hour shall be paid for, “Notice to work a meal hour shall be given a quarter of an hour before thetime fixed for the commencement of the meal.” Mr. Shorland said the ship was being loaded on January 13 with frozen meat, and the loading was not expected to be finished* on that day.’ After outlining the bureau system of engaging waterside labour, the object of which, he said, was to apportion the work to the more eligible workers, Mr. Shorland said defendants were part of a No. 1 gang engaged by plaintiffs to load No. 1 hatch with frozen meat. The smallest amount of time must elapse between the time the meat left the refrigerating store and the time it went into the hold. Appropriate orders were given the men to work overtime. Later in the afternoon it became apparent that it would not be possible to load all the meat by, 10 p.m„ and it became necessary to Invoke clause 19 of the award, section (bj of which provided that men should work during meal hours if required to do so. At 6 p.m. the men would have been allowed an hour for a meal, and it was intended that they should go, and be replaced by another gang. The result of their refusal to work was that at 10 p.m. there was still meat on the wharf, and the crew had to be told off to ’work. Next morning the gang claimed they should be paid for the time the crew had put in, and there was some dispute over that. The Loading Programme. Hugh Andrew McLeod, st director of the plaintiff company, said that in arranging the programme it was important that the day’s loading be completed. Arrangements witli the freezing companies and the railways had to be forecast some days’ahead. None of the men actually worked during themeal hour.

When witness was asked w£ *s there any occurrence the next morning, Mr. Hardie Boys objected to the question as irrelevant. ■ Mr. Shorland: I am attempting to show the attitude of the men.

The magistrate: You.are quite wrong in attempting to do so by that means. To Mr. Hardie Boys, witness said the men first engaged were usually retained for the whole job. This was done by agreement, and was followed in this case. The one gang worked in the hatch on Tuesday and two on Wednesday. Work began at 8 a.mJ and until the dinner hour the men were shifting wool.Mr. Hardie Boys: That fact delayed the getting in of the mutton, did it not? Witness: Yes.

What was the knocking-off time on the Tuesday and Wednesday?—“i could not say about Wednesday, but on Tuesday it was five to ten.” r You referred to a programme of loading. That inytfjtes a responsibility to put on the wh®* as much cargo as can be loaded?—"xes.”

And at 3.45 p.m. you had given orders only to work from 6 to 10, and that had been done on the two previ ous days?—“Yes.” Was there anything left over from the Tuesday and Wednesday?—"No." Is the posKion that on the Thursday you got too much cargo on the wharf to work during ordinary and overtime hours?—“l don’t know about that.” Was Thursday the only night that cargo was left on the wharf?—"l suppose so.” Then is not the position that on rhe Thursday Gannaway and Co. got too much meat out of the freezer?—“l should think that to have only six bags on the wharf at 10 o’clock was fairly good judgment.” What quantity is it usual to load between 6 and 10’ —“I have known as much as six trucks to be loaded in that time, but fou r is the average.” Do you regard the men as bound by the order to work from 6 to 10, given before 4 o’clock?—“Yes.”

And there is also an obligation on you to pay at least the two hours’ minimum for that period?—“Yes.” Re-examined, witness said the numtier of trucks waiting to be loaded from 6 to 10 would depend on the rate of work during the day. The programme w:is based on the whole day. “We Will Not Work.” Percy John Ballard, master stevedore in the plaintiffs’ employ, said lie gave the order to work the tea-hour at about 4.25 p.m. He stood at the opening of the hatch in the company of the hatch foreman. He said, “This gang works the tea-hour.” One man said, "No; I’m not working,” and walked underneath the beam. He was followed by several others saying, “No, no.” The foreman said, “We do not want to know who is not going to work, but who is going to work.” One man stepped out and said, “We will not work in the tea-hour.” At 5 o’clock the gang went off. Mr. Hardie Boys: Had there been

two refusals only, what would have been the position? Witness: The gang could have worKed short-handed. . Is there a general provision as to substitutes?—“Yes, but it is very rarely invoked in the meal-hour.” However, there would be circumstances in which some men could be excused from working ,the tea-hour f—“Some, but not more than one or two. That would be quite extraordinary. Will you tell me anything done by you at 5 o’clock to see if the men would work? —“I did not take steps at *> o’clock to find out the position.” Do you recall the time the men finished on the Tuesday night?—“No." Would you deny it was 8.30 p.m.. — “No.” Do you know the men worked overtime on the Wednesday night?-— I should say they most certainly did. Do you recall that the other gang working in No. 1 hatch on Thursday finished during the afternoon and went on to wool or cheese? —“It is quite possible.” Was there anything to stop you working two gangs on the Thursday in No. 1 hatch?—“Two gangs would not have been much use at that time. There was mA sufficient quantity to load to justify two gangs.” But it did involve another gang working while No. 1 gang was to have its tea?—“Yes.” The men swear there were five trucks when they went do tea at 5 o’clock?—“That is too great—l should say there were four.” Would you agree this gang put m more than four trucks from 6 to 10?— “I do not think so.” Is it true the men were told not to put a cover over the hatch, as the crew was going on with the loading?—"That may be right.” • Is it true the other gang worked in No. 4 hatch until after tea, and then went into No. 5 hatch to work cheese. “It doesn’t sound right to me, because we don’t put cheese in No. 5 hatch.” . Was any other gang in the whole ship asked to work the meal-hour during the whole of the loading?—“l do not think so.” . A s a matter of practice, is it not the custom to refrain from working the tea-hour on pay-day?—“l dispute that.” , Is it true that certain men are always excluded from working the tea hour?—“i do not know about that. I could not name a man who could not reasonably be expected to work the tea hour.” John Dooley, foreman stevedore, said he was present when the order to work the meal hour was given, and corroborated the evidence of the previous witness as to what took place. He was the last man to leave the hatch. ' Legal Argument.

Mr. Hardie Boys made four legal submissions. First that if the men were to be ordered back to work overtime, from 6 p.m. to 10 p.m., the order must be given not later than A p.m.; if they were ordered back for the tea hour, the order must be given not later than 4.45 p.m. But the only provision in the whole award under which the men could be required to work both meal hour and overtime, was contained in clause 15, namely, that when it was expected to finish a ship or job at 6 p.m., or immediately after, the order to work to a finish must be given at 4 o’clock. The second submission was that the order given shortly before 4 o’clock constituted a bilateral contract’ to work from 6 to 10. That could not be affected by anything said at 4.45 p.m. Thirdly, the employer waived compliance with the order to work the meal hour. He acquiesced in the men’s refusal to work by accepting their labour after 6, and again the next morning. < The magistrate: I am not at all impressed with that line of argument. It was still valid to carry out a prior contract to work after 6. The fourth submission, that the breach was trivial, would be made if it was desired to hear the evidence of the men, said Mr. Hardie Boys. ’

Mr. Shorland submitted that an award affected the ordinary legal relationship between master and servant only in respect of the matters it provided for. There was a clear necessity for the -employer to provide for emergencies as they arose. The purpose of clause 15, to which Mr. Hardie Boys had referred, was to provide that the work should be carried on to a finish. As for clause 19, if the submission of the defence were correct, there would be no need for it in the award at all.

The magistrate said that at first glance it 'seemed that the defence raised was unanswerable. He would examine the legal question and decide whether it would be necessary to hear evidence for the defence.