APPRENTICE LAW

Evening Post, Volume CXVIII, Issue 53, 31 August 1934, Page 10

APPRENTICE LAW

IMPORTANT TEST CASE

FULL COURT DECISION

£500 DAMAGES CLAIM

Legislation in New Zealand relating to apprenticeships was reviewed in three long judgments of Judges of the Full Court which were delivered today in a. case" of considerable. general importance. The plaintiff was George Homy Burton, an iipprentic-.1, and the defendant tho Precision Engineering Co., Ltd., Wellington. Burton was suspended by the company, and claimed £500 damages for breach of ccuiraet. Legal propositions were raised on betalf of the defence and the case was removed into the Full Court for argument on the questions cf law. By a majority decision—Mr. Justice Ostler and Mr. Justice Johnston for end the Chief Justice (Sir Michael Myers) against—the Full Court has held: (1) That by reason of the general order of the Court >jf Arbitration of August 4, 1926, amending all apprenticeship orders, the Apprentices Act of 1923 and its amendments apply to the contract; and (2) that tho plaintiff's remedies for the enforcement of the contract are restricted to tkt remedies provided by the Act. On July 8, 1939, the defendant company, which is engaged in tho engineering trade, entered into a contract of apprenticeship with the plaintiff and. his father whereby it agreed to employ the plaintiff for five years, to teach him the trade, and to pay him certain wages. The plaintiff was suspended by the defendant on September 18, 1933. * JURISDICTION SAVED. The first question of law for decision was whether the Act still applied to the contract. Mr. Justice Ostler said that in his opinion it did. Although the award was cancelled, the Apprenticeship Order made on December 30, 1924, was not cancelled, and there was no practical difficulty in reading1 the provisions of the award referred to into the order and, as part of the order, into the contracts to which the order applied. The Court of Arbitration, in his opinion, had jurisdiction to hear and determine the defendant company's application for tho cancellation of its contract with the plaintiff. Its jurisdiction was saved by the general order. The question then arose whether, notwithstanding that the Apprenticeship Act, 1923, applied to the contract, the plaintiff could sue in the Supreme Court for damages for a breach of or for the repudiation of the contract. His Honour took tho view that the plaintiff could not do so -without first getting the amount of damages fixed by a Magistrate as provided under section 15 of the Apprentices Amendment Act, 1930, or under section 56 of the Finanoe Act, 1932, if the employer made an application under that section for the cancellation of the contract. BOUND BY THE ACT. Mr. Justice Johnston, in a separate judgment, also camo to the conclusion that the Act still applied to the parties to the action and their contract. At the time the contract was entered into, said his Honour, an order of Court had been made and was in force directing that tho Act apply, inter alios, to all employers in the enginperin£ industry. The defendant camo within that class and in his Honour's view of the significance of the order was bouud by the Act whether ho had been stepping in or out of industrial awards or not. As a. matter of fact it appeared that at the time he entered into the contract ho was not subject to an award at all and, therefore, it was by virtue only of the order tho Act applied to him and his contract. However, whether lie was subject to the Act by. section 3 or by order under that section, his contracts, made while so subject, were for the period of their duration subject to the Act. DISSENTING VIEW. Tho Chief Justice took the view that as from April 17, 1932, the* date of the cancellation of the award, the Apprentices Act, ,1.023, a.nd its amendments ceased to have any application to tho apprenticeship contract or to the parties. His Honour said he agreed with the President of the Court of Arbitration (Mr. Justice Frazer) in ro Otago Motor ' Engineering Trade Apprenticeship order' where he stated that it would be illogical to construe the Act in such a way as to leave the minority of employers bound by ' the provisions of the Act and of an apprenticeship order made thereunder while the majority were no longer subject thereto by reason of the cancellation of the award. Put in .other words, when the award or industrial agreement ceased to exist, the foundation of the application of tho Act had gone and there was nothing to support the superstructure. ' There was no doubt considerable force in the argument on behalf of the defendant, his Honour concluded, that the parties to -the apprenticeship contract were restricted to the statutory remedies proscribed-by the Apprentices Act and its amendments, and that if these Acts ceased to apply there was no other remedy. But on the best consideration that ho was able to give to tho case he did not accept that view. All that the Apprentices Act, 1923, and its amendments did, he thought, was to provide that so long as the Acts applied to a particular contract tho parties should have no other remedies than the Acts themselves prescribed; but, if the Acts ceased to apply but tlio contract remained in its essential features, he saw no reason why- a party thereto should not have available to him tho ordinary remedy in damages if the other party committed a breach of contract in'respect of thoso essential features.

Mr. F. W. Ongley and Mr. C. H. Arndt appeared for the plaintiff and Mr. J. F. B. Stevenson for the defendant.