STRIKE AFTERMATH

Evening Star, Issue 22709, 24 July 1937, Page 27

STRIKE AFTERMATH

PETROL LORRY DRIVERS CHARGES AGAINST COMPANY INTERPRETATION OF AWARD The Arbitration Court has given its judgment in the case in which the Labour Department proceeded against the Vacuum Oil Company Proprietary Ltd., Christchurch, for two breaches of the award in connection with failure to pay overtime. The sum of £lO was claimed for each alleged breach, but the case was regarded really as an application to the court for interpretation of the award in question. The case was heard in Christchurch on July 3 before Mr Justice O’Regan in association with Mr W. Cecil Prime (employers’, representative) and Mr A. L. Monteith (employees’ representative). It followed a strike of petrol lorry drivers in Auckland, .and the decision bears on the question raised during the strike. Mr R.T. Bailey represented the Labour Department, and Mr W. J. Mountjoy the defendant company. The defendant company was charged with two breaches of the award; — namely, (1) that between December 25, 1936, and June 26, 1937, it employed divers drivers 44 hours a week without the payment- of overtime, in contravention of clause 6 of the Northern, Taranaki, Wellington, Nelson, Marlborough, Canterbury, and Otago_ and Southland motor and horse drivers award, dated December 21, 1936 ; and (2) that within the same period it employed drivers during the meal hours and failed to pay them overtime rates as required by the award. The court held that the company had contravened the award in regard to the first charge, but as the proceedings were really an application for interpretation, and as the court was satisfied that there was no deliberate breach no penalty was imposed. The second charge was dismissed. , COURT’S JUDGMENT. Dealing first with the second of the alleged breaches, the Northern, Taranaki, Wellington, Nelson, Westland, Canterbury, and Otago and Southland motor and horse drivers’ award, the judgment of Mr Justice O’Regan stated, contained, inter alia, the tallowing provision: “ One hour shall be allowed for dinner if feasible No worker shall be required to work more than'five hours continuously without being given an opportunity to have a mean” ' , , „ The meaning of the foregoing extract, the judgment continued, was the subject of an interpretation by the court on the application of the inspector of awards, Wellington, in March, 1931, and it was held that if it were impossible to allow a driver an hour for his meal, a shorter time might be allowed, but, if during that time, the driver were relieved of duty, the meal time could not bo reckoned as part of his daily hours. Further, however, if it were impossible to allow him any time off, tho clause required nevertheless that he should have the opportunity to have a meal. That provision* was held to be mandatory, in that it contemplated a case in winch the driver had to take his meal while on duty. Drivers of petrol wagons, in virtue of the provisions of the Explosives and Dangerous Goods Act, 1920, had to remain continuously in charge of their vehicles, and the combined effect of these provisions with those of the extract quoted was held to he that they were on duty during the time allotted them for meals. Hence drivers of petrol wagons were in a position different from that of drivers of horsedrawn vehicles, in that the meal-time was reckoned in the working day, and the court held further that if the daily or weekly hours of petrol drivers were not exceeded, the payment should be at the ordinary rate. As a result of the Industrial Conciliation and Arbitration Amendment Act, 1932, the award lapsed. On April 12, 1933, following, the court promulgated the Wellington Industrial district (except Hawke’s Bay and Rangitikei district) motor and horse drivers’ award, the provisions of which regarding meals were set out as follows:—“ (e) Ordinarily one hour shall be allowed for dinner, but this time may be curtailed as the employer may require, provided it shall not be less than half an hour. (f) No worker shall work more than five hours continuously without an interval of at least half an hour for a meal, (g) It shall be a compliance with sub-clause (e) of this clause if a driver of a petrol-tank wagon, when absent from the employer’s depot at lunch time, and when at a distance of two miles or more from the employer’s depot, shall stop the vehicle for an interval of half an hour .and partake of his meal.” It was submitted for the defendant company, and the court agreed, that the effect _of the foregoing provisions was to relieve employers of the obligation to pay drivers of petrol-tank wagons for the time occupied at their midday meal. Sub-clause (g) was prefaced by the words: “It shall be a compliance with sub-clause (e),” etc. The effect of these prefatory words obviously was to alter tho provisions which weio the subject of interpretation by the court in 1931. As a matter of fact, since the provisions last quoted had come into operation meal-time payments had, generally speaking, ceased. Further, those provisions had been embodied in the current award. Here it should be noted that, instead of the words “ a compliance,” as in the preceding award, the words used were “ sufficient compliance,” which made the meaning clearer and more emphatic. Tho court was satisfied that the combined effect of clauses (g) and (h) was that if tho employers of petroltank wagon drivers complied with subclauso (h) they were thereby relieved from the obligations of sub-clause (g) ; that was to say, they were under no obligation to pay for the time occupied by the driver in taking his meal. It followed, of course, that the defendant company had committed no breach of the award, and'the case was dismissed. FIRST CHARGE. Clause 2 of the Northern, Taranaki, Wellington, Nelson, Marlborough, Canterbury, and Otago and Southland motor and horse drivers’ award prescribed that, except where otherwise provided, a week’s work should not exceed 44 hours [(exclusive of the time for necessary attendance to horses or motor vehicles). If the daily hours exceeded nine or the weekly 44 overtime was to be paid. There was a proviso to the clause, however, to tho effect that in the case of drivers employed in industries or by establishments where any less, number of hours per week was in operation, either by order of the court or by operation of statute, the weekly hours of work for those drivers should bo such less number of hours, but with the right to work on Saturday where necessary, as long as such number of hours was not exceeded.

On September 1 last the court made an order* by consent, providing that the maximum number or hours (exclusive of overtime) to bo worked in any week by workers in factories occupied by tho defendant company and other oil companies named in the said order should not exceed 40, to be worked on five days of tho week with certain exceptions. The defendant company had in.this country 32 depots, of which only five were registered as factories, and the company’s total staff was 447, of whom the factory workers comprised little more than 14 per cent. The order, of course, had application only to factories, and accordingly the depots which were not factories need not be considered in connection with these proceedings. For the plaintiff it was submitted that tho combined effect of the proviso was that drivers employed by oil companies in connection with their factories could not bo required to work in any one week longer than 40 hours without the payment of overtime. Mr \V. J. Mountjoy, counsel for the defendant company, contended that the hours of workers in the oil marketing industry had not been rertricted to 40 per week, “ except for a very small percentage of employees ” who worked in factories for the companies. Tho court agreed, and had already made it clear that only factories had to be considered, inasmuch as the court’s order of September 1 last could have no application except to factories. It was the court’s view, however, that drivers employed by an establishment need not necessarily he factory workers to come within the proviso. It was sufficient if they were employed in an establishment where, in virtue of tho order or statutory authority, the hours in operation were less than 44. In such circumstances the daily and weekly hours of drivers should bo those of the establishment. The court had made a personal inspection of the defendant company’s premises, and was _ satisfied that the establishment, in virtue of the order, did work 40 hours, and hence that the proviso applied. It was clear that tho petrol supply pumps from which drivers of petrol tank wagons drew their supplies were not in themselves factories, and hence, when apart from factories, the order had no applica'ion. The position was otherwise, however, where tho pumps were actually situated in, or were contiguous to, factories, and the drivers drawing supplies therefrom were employed and controlled by the occupiers of such factory establishments, inasmuch as. the order and the award applied there, with the result that the hours were regulated accordingly. The defendant company, then, had contravened the award, but the court was satisfied that there was no deliberate breach.