DISMISSED

Evening Post, Volume CXXXIX, Issue 31, 6 February 1945, Page 7

DISMISSED

STABILISATION CASE

PAYMENT OF FACTORY GIRL O.C. WANGANUI, This Day,

The involved nature of provisions in the Economic Stabilisation Emergency Regulations, 1942, was commented on by Mr. J. H. Salmon, S.M., in the Magistrate's Court, Wanganui, when dismissing an information brought by the Inspector of Factories against J. J. McCaskey and Son, Ltd., clothing manufacturers, Wanganui and Wellington. The -firm was charged with a breach of the regulations, in that it employed a girl aged 17, Miss N. Moore, at its Wanganui factory on or about August 8 last, and paid her a weekly wage of £3 10s, of which £1 18s Id was in excess of that which should have been paid under the regulations.

Reviewing the evidence, the Magistrate stated in a written judgment, that before opening its Wanganui factory in April, 1944, the defendant company had invited applications from machinists and girls willing to be trained as machinists, the wages being stated at £3 10s to £4 10s a week, with overtime for those who preferred it. When engaged by the company, Miss Moore had experience amounting to 21 months and 10 days. She proved herself to be a proficient machinist!

The company was bound by the Dominion Clothing Trade Employees' Award, but had never employed apprentices or improvers as such. Ii employed machinists, paying them according to their efficiency, regardless of age. "This is the practice followed by the defendant company both in its Wellington and Wanganui factories," the Magistrate added. "It appeared! that the defendant had introduced into its Wellington factory a bonus system, with the result that some of the employees increased the amount of their remuneration considerably. In its Wanganui factory the defendant introduced the belt system, which enables all its employees to earn a good | wage for the same amount of work. I The garments are cut in the Wellingt ton factory and sent to Wanganui, where they are sewn. The finishing and trimming are done in Wellington, where the garments are examined and corrected. The practice of the defendant company in employing machinists only does not appear to have been in conflict with industrial laws. PENAL STATUTE. "The clause of the regulations constituting the alleged offence (Regulation 34), and Regulations 32 and 33 ! which precede it, present a remarkable piece of draughtsmanship," the Magistrate added. "Regulation 32 attempts to provide methods for ascertaining, in various circumstances, the 'basic rate of remuneration,' which means the rate of remuneration paid for the same i work, or the same class of work, on the date these regulations came into ! force, December 15, 1942. Once you i have arrived, with considerable difficulty, at the basic rate of remuneration for a particular employee in his i own particular position, * or for parjticular employment at a certain class lof work, then any increase upon such ! basic rate, except as provided in this j part of the regulations, is declared to ibe irrecoverable.

. "Then follows sub-clause (3) constituting the offence. That provides that every person commits an. offence against these regulations who pays or accepts on account of the remuneration for any position or employment any sum that is irrecoverable by virtue of this part of the regulations.

"The defendant company was not carrying on business in Wanganui on December 15, 1942, and the prosecution has, therefore, looked at the award then in force and at the rates of remuneration paid by the Wanganui Woollen Mills, Ltd., to an employee of the same age and experience as Miss Moore as on that date, and because it has found the nearest analogy among apprentices of that age, it has assumed a certain basic rate of remuneration. I am not satisfied that this method or that this assumption is correct.

I "These regulations are highly penal. iA- breach by a company or other corporation is punishable by a fine not exceeding £500, and, if the offence is a continuing one, to a further fine not exceeding £20 for every day during which the offence continues. It is trite law that a penal statute must be strictly construed. These regulations are deemed to be an extension of the statute." "THE SIMPLE COURSE." After quoting legal authority on this point, the Magistrate stated that any doubts he had entertained as to whether a case had been made out by the prosecution were confirmed and substantiated by the affirmative defence raised. The prosecution was probably not aware of the fact that the defendant company was carrying on the same business in Wellington prior to and at the date of these regulations coming into force.

"Had it know nthis," the Magistrate added, "the simple course would have been to have inquired whether the defendant on that date had been employing any person in a similar position or employment in the same class of work, and, if so, what remuneration had been paid. This is one of the first tests contained in the involved provisions of Regulation 32. The defendant has shown that on the date when these regulations came into force it was employing in its Wellington factory a number of machinists at various rates of remuneration (all, I believe, in excess of the award rate), and that the defendant also conducted a bonus system.

"Several of the machinists so employed were paid £3 10s a week or more, and when bonuses were added it will be seen that the remuneration of a number of these machinists was considerably in excess of £3 10s a week, or even in excess of £4 10s a week. Now, 'remuneration' is defined by Regulation 31 as meaning 'salary or wages and includes time and piece wages and overtime and bonus and other special payments, and also includes allowances, fees, commission, and every other emolument, whether in one sum or several sums, and whether paid in money or not; and also includes travelling expenses. . . .'

/The inclusion of bonuses in ascertaining the rate of i-emuneration is also insisted upon in Regulation 32. The defendant's counsel has referred to one specific machinist in the Wellington factory because this girl was, like Miss Moore,.highly proficient as a machinist though only in her teens. I think it is unnecessary to select this example, though I agree that it is a complete answer to the charge. The information must be dismissed."

When the case was heard in Wanganui a week ago, Mr. H. A. Gatward appeared for the Inspector of Factories, and the defendant company was represented by Mr. D. W. Virtue (Wellington).