BUTCHERS' AWARD

Evening Post, Volume CXVIII, Issue 32, 7 August 1934, Page 5

BUTCHERS' AWARD

VALIDITY UPHELD

A BINDING AGREEMENT

COURT'S DECISION

The validity oi' tlio Wellington Industrial I/istrict Butchers' Industrial Agreement was upheld by Mr. B. Pago, S.M., in a reserved judgment delivered in the Magistrate's Cour,t today. The case was one in which tho Inspector of Awards (Mr. J. Georgeson) claimed from Frank Flipp, a butcher, of Kilbimic, a penalty of £10 for an alleged breach of the award by permitting two employees tQ work earlier than 6 a.m. Flipp was also charged under the Shops and Offices Act with employing an assistant.for moro than forty-eight hours in a week, and he pleaded not guilty. The inspector claimed from Bryeuton Bros., butchers, of RL'ddiford Street, two penalties of £10, alleging in one instance that they had permitted an employee to work before 6 a.m. and in tho other that they had employed workers after midday on a half-holiday. In the course of Ms judgment Mr. Page said that two questions had been raised; namely, the validity of tho award, and the interpretation of it, if valid. In regard to the validity of the award he traced the efforts mado to secure a new award consequent on the expiry of the previous one. Five successive applications for the dispute to bo heard by a council of conciliation, four by. the employers, and one by the Butchers' Union, had been made. Finally a conference was held between representatives of the Butchers' Union (assisted by the Federation of Labour) and of ■ tho employers (assisted by the Employers' Federation), and as a result an agreement on tho terms of the new aware] was arrived at. Ono valid application for an award remained, having been filed by an employer on May 30. The applicant had joined as respondents the union and what appeared to be the whole of the employers in the Wellington district. The two defendants were amongst the respondents, and were therefore cited as parties to the dispute. The applicant had duly nominated himself and three others as assessors, and, out of the persons nominated by the respondonts, the .Conciliation Commissioner had appointed the assessors for tho respondents. "Tho decision of the Court of Appeal in tho case of Inspector of Awards v. Hellaby had not at that time been given, "said Mr. Page, "and it appears to have been .generally thought that tho effect of section s ; of tho Industrial Conciliation and Arbitration Amendment Act, 1932, was. that tho assessors at a conciliation council could' bind tho parties to such agreement as tho assessors chose to make. The assessors nominated by the applicant were hot considered fully representative of the great body of employers, and after further negotiation it was arranged that the three assessors (other . than himself) nominated by the applicant would withdraw, and that ho would nominate in their place threo who were to have acted as ,assessors in the employers' application of February 22. These three were master butchers, one being tho president of tho Wellington Master Butchers' Association, ono tho secretary of the Wanganui Master Butchers' Association, and the third a prominent master butcher from Palmerston North. AGREEMENT APPROVED. "A conciliation council was then convened, at which tho various parties were represented. The agreement that had been arrived at was submitted and approved by the parties in open council as a settlement of tho dispute, and it was signed by all the assessors and filed in tho office of the Clerk of Awards. The Arbitration Court was subsequently moved to make of the agreomont an award. The employers were represented at such hearing and concurred in the motion, and an award was duly made in terms of the agreement. It is this award that is now being attacked by defendants. "The main ground taken is that the settlement of the dispute arrived at in tho course of tho inquiry before the conciliation council was a settlement arrived at by tho assessors and not by the parties." / Mr. Page said it.was true that the agreement in form purported to bo the agreement of tho assessors, but the terms in which, it was' couched were doubtless employed in tho believe that section 5 of the 1932 Act required the settlement to be arrived at by tho assessors. '■■ The decision in Hcllaby's case, referred to above,, had since dispelled that belief. There could be no doubt that the settlement was in fact the settlement arrived at by the parties. Tho defendants were not personally present at the conciliation conference, but tho same might well be said of hundi'eds of other master butchers in tho Wellington' district, yet all wero cited and could havo attended personally if they had chosen. They had left the conduct of their case, as usual, in the hands of their representatives. Before the Arbitration Court the employers, including defendants, wero again represented and again concurred in tho settlement and in the making of an award based on it. VALID AND EFFECTUAL AWARD. "Tho defendants contend further that if they had known tho law as laid down in .Hellaby's case and had known that the assessors could not bind them without their consent, they would have approached tho question of settlement in a different spirit," continued Mr. Pago. "That may bo so, but that is not a sufficient ground for setting aside ■an agreement that was in fact com© to. "The defendants further "say that they wero not all consulted regarding tho change made in tho assessors. Even if that fact wero established, it would not in my opinion prejudicially affect the agreement. The original assessors had been duly appointed as required by statute, and the substitution of three assessors more fully representative of the interests of the defendants, and. their colleagues was a concession made to them which they had no right to demand. The whole facts appear to tnc to be distinguishable from those in Hellaby's case and, in :my view, tho award based on the above agreement is a valid and effectual one." BREACH OF THE AWARD. Mr. Page said that the remajfning questions concerned the interpretation of the agreement. He thought that tho languago in clauso 1, "no worker shall be permitted to do any work . . . earlier .than .7 a.m.," was clear and unequivocal, and meant what it said. It was shown that on tho day in question two workers employed by the defendant Flipp were-at work at 5.35 a.m., and as their employment at that hour did not come within any of the exceptions specifically set out, a breach,, of tho award had been established. It wns duo to this defendant to mention that he appeared to have paid overtime for such work as was clone outside the hours permitted by tho award. In regard to Brycnton Bros., it was alleged that they employed a worker before 6 a.m. There was some conflict in the evidence on this issue. The two inspectors visited the shop fifteen minutes before 6 a.m. and found tho worker in-"the shop in .his -working clothes

and with a knifo in his hand. They considered that ho had commenced work. The defenco admitted that the worker was in the shop in his working clothes seven minutes before 6 a.m., but stated that ho was smoking a cigarette and sharpening his knife, and that he did not start work before C a.m. In his view the ovidence fell short of establishing this claim. The second claim made against Bryenton Bros, was that they employed four "set 1" workers (between 7 a.m. and 4.30 p.m.) after the hour of noon on tho weekly half-holiday. The evidence of the defendant and his man, supported by the time and wages book, was that these men were "set 2" men (between 7.30 a.m. and 5 .p.m.), and that they were therefore lawfully employed till 12.30 on the half-holiday. In his view, this charge had not been established. On tho charge under the Shops and Offices Act.in ,connectionj'with the 'employment of an assistant for moro than forty-eight hours in a week, Flipp was fined £1. ■ • , Mr. J. F. B. Stevenson said that Flipp had not committed an intentional breach; ho thought ho was.acting within the law.