AWARD AND ACT.

Evening Post, Volume LXXXIII, Issue 71, 23 March 1912, Page 7

AWARD AND ACT.

ALLEGED BREACH OF GROCERS' N AWARD. ARBITRATION COURT HOLDS NO INCONSISTENCY. IMPORTANT APPEAL ALLOWED. "In our opinion the Magistrate was wrong in holding that the award and Act were inconsistent. The appeal is allowed, and the case is remitted to the Magistrate's Court to be dealt with there." — Judgment of the Arbitration Court in the case Le Cren (Inspector of Awards) v. Wairarapa. Farmers' Cooperative Association, Ltdl "The judgment, in his opinion, will lead to no end of litigation and strife, due solely to hasty and ill-conceived legislation, and which shows clearly the danger of Parliament passing legislation overriding the awards of the Arbitration Court." — Comment by Mr. Scott, employers' representative, as embodied in the judgment of the Court. This important decision of the Court was lodged to-day with the Clerk of Awards, Mr. Eustace Stocker. The parties in the case are E. A. Le Cren (Inspector of Awards), plaintiff, and the Wairarapa Farmers.' Co-opera-tive Association, Ltd., defendant. The appeal was on point of Jaw from the decision of Dr. A. M'Arthur, S.M., given on. 26th September, 1911, dismissing an action- in which appellant claimed £10 as a penalty for a breach, of clause 4 (a) of the Wellington grocers' award. The alleged breach was that" defendant in every week from 7th April, 1911, to 19th August, 1911, employed Eric Roy Murphy (as a driver only) in excess of the weekly limit of 47i hours, exclusive of the time required for necessary attendance upon horses and meal hours, contrary to section 4 (a) of the award. The award expired on sth April, 1911. AN ALLEGED BREACH. The salient points in dispute are set forth in the judgment. The- respondent was alleged to have committed a breach of the Wellington grocers' award (Book of Awards, vol. X., p. 57) by employing a. worker as a driver only in excess of the weekly limit of 47£ hours prescribed by clause 4 (a} of that award. The award was made in March, 1909, and the term fixed for the currency thereof expired on on the 7th April, 1911. In the meantime the Legislature, by the Shops and .Offices Amendment Act, 1910, had repealed subsection 4 of section 6 of the Shops and Offices Act, 1908. The respondent contended that the effect of this legislation was to bring the case within the scope of section 74 of the Industrial Conciliation and Arbitration Amendment Act, 1908, with the result that the provisions of the award must be treated as having been modified since the 7th of April, 1911, in accordance with the Shops and Offices Act, 1008, as amended by the Act of 1910. If th© award is to be treated as modified in this way, then the respondent would be entitled to work the driver in question up to the limifl. of hours fixed by the Shops and Onices Act, 1908. MAGISTRATE'S DECISION. Counsel (at the hearing of the original case) pointed out that the scheme of hours and conditions of labour for f racers' drivers, as laid down in the hops and Offices Act, was different from that laid down by the award. He contended that the Department was bound by the Act as a whole. The Magistrate interpreted the section as saying that up to the expiration of its period, all the provisions of the award were in force, but after that, and during its further subsistence, it became modified by the chops and Offices Act, which law was then in force. This, in his Worship's opinion, showed the necessity for getting a new award or securing the renewal of the old. COURT AND LEGISLATURE. When the appeal was being argued before the Arbitration Court, hi*. Honour (Mr. Justice Sim) said that the Legislature was pleased to take away the power to increase the hours fixed by Statute, and the Court, would refuse to reduce them. It waS useless for parties to ask that the hours be reduced. The judgment to-day held that section 74 of the Industrial Conciliation and Arbitration Amendment Act, 1908, applies only if, and bo far as, there was any inconsistency between the provisions- of an award and the provisions of an Act passed after the making of 6uch award. In determining whether there was any such inconsistency, the test to be applied, in the Court's opinion, was that suggested in the case of tne Federated Sawmill Employees v. Jamea Moore and Son, in the High Court of Australia (8 C.L R. 465, 500, 527, 544), namely, whether the proposed Act is consistent with obedience to the directions of both the Statute and the award, or, in other words, is it possible to obey the directions of the award without infringing in any way the directions of the Statute. If it is possible, to do so there ia not any inconsistency. Applying that test in the present case, it was clear that there is not any inconsistency between the award and the Statute. It was possible for an employer to obey the directions of the award with regard to the hours of wck of drivers without infringing in any way the provisions- of the Statute. Section 6 of the Act of 1908, which limits the hours of work for shop assistants, does not impose on employers the obligation of working their assistants up to the prescribed limits. It merely makes it penal to work assistants beyond those limit*. An award which still further limits the hours of work is, therefore, not inconsistent 'in any way with this statutory provision. The appeal (as noted at the head of the column) was allowed, tho respondent being ordered to pay appellant's costs of the appeal (£5 ss). COMMENT BY MR. The judgment continued ac follows:-— "Mr. Scott, while agreeing with the judgment of the Court as being strictly in accordance with law, feelaU himoelf compelled to point' out the great injustice that will be inflicted on account of the overlapping of the Shops and Onices Act and the Industrial Conciliation and Arbitration Act. Under the award the hours of d rivers are 47£ hours per week ; under the Act they are 52 hours per week. Under the award stable work is unlimited ; under the Act it is restricted to ono hour per day. Under the award overtime can be worked as required, provided overtime rates aie paid • under the Act overtime is roetricted to 90 hours in tho year, besides which, before overtime can be worked, a permit has to be obtained from the inspector of Factories (an impossible condition). Under the award the work can be spread over the twenty-four hours with proper safeguards ; under the Act work must cease at 6 p.m., with the few exceptions mentioned. It will thus be seen thai in connection with tlie hours of work employers and workers aie com' pelled in oomo cases to observe the hours prescribed by the award, and in others the piovisions of tho Act. and that neither employer nor worker is Bafe from prosecution. . . ." The furtlu-i continent of the empli^eis" representative will be read in tho beginning. Mr. H. H. Ostler appuaitxl fur appellant, and Mr. T, IS. WunUiu for ie> •poadent.