WORKMEN AND COUNCIL.

Gisborne Times, Volume VI, Issue 158, 16 July 1901, Page 3

WORKMEN AND COUNCIL.

CONTRACTORS AND WORKMEN’S RIGHTS.

ACTIONS AGAINST WAIAPU COUNCIL.

At the Magistrate’s Court yesterday, before Mr W. A. Barton, S.M., several very important cases, adjourned from the Port Awanui Court for argument in Gisborne, were dealt with. The plaintiffs

(who were represented at Awanui by Mr

Geo. Lysnarj were : J. Richardson and others, claim £9B 12s ; Patrick Whelan and others, claim £B6 17s ; George Brown, as sub-contractor, claim £52 10s, making a total of £237 19s. In the latter case

Mr Lysnar was instructed by Mr DeLautour. Mr L. Rees appeared for Mr George Cottrell, to whom the second contract had been assigned. The claims were for wages due under a contract let by the Waiapu County Council to Patrick Mooney, contractor. He had taken two contracts from the Council, one for £479, in respect of the Maraehara road, and the bther, known as the No. 2 contract, in respect of the Hikowai road, for .£630. Prior to completing the first contract Mooney assigned the second contract to George Cottrell, of Tokomaru, but prior to assigning he had received over £3OO under the first con-

tract, which he did not apply to liquidating wages claims arising under No. 1 contract. The men working for Mooney under the first contract (amongst whom wero the plaintiffs) gave- notice to the Council to protect them in respect of further ad- j vances on account of the contract. It is alleged that the Council ignored this notice, and made a subsequent- payment to Mooney of £l5O. The men claim that this amount should havo been held in trust for them, in view of tho notice given, and that its payment to Mooney rendered | the Council liable in respect of it. Honce the action. The Council had paid .£l2O into Court in connection with tho matter. At tho argument yesterday Mr Geo. Lysnar appeared for all the plaintiffs excepting the sub-contraetor, Mr George Brown, of Kawakawa, for whom Mr DeLautour appeared. Mr L. Bees ap. peared for Mr George Cottrell, while Mr Nolan appeared for the defendant Council. The contention of Mr Lysnar was that the Council was wrong in paying over : the sum of £IOO to Mooney after receipt of notice of default from the workmen.

Mr Nolan said the question was whether the second contract was liable for wages due on the first contract. It was common sense to think that the Council could not possibly be made liable for wages due on the tirst contract in respect of money payable under the second contract, under this procedure, at any rate. He quoted the definition of the term “ workmen ” as laid down by the Act, and cited other sections in the Act in support of his argument. Unless it was specifically laid down, a very serious injury indeed would accrue to workmen employed on another contract if tiie workmen engaged on the first contract neglected to take advantage of their rights to obtain their wages. The first contract was for .£479. and the Council retained the statutory amount, viz., £l2O, which it had paid into Court. The last payment made by the Council in respect of the first contract was in February last. It was absurd to say that because- a workman was engaged on one contract he could come in and claim under No. 2 contract. He admitted that if there was a surplus accruing to Mooney from No. 2 contract after payment of claims in respect of it, thru the workmen engaged on No. 1 contract would be entitled to participate. The money could not bo attached under the

present procedure. Mr L. flees said his contention was much the same as Mr Nolan’s. The matter to him was hardly susceptible of the construction placed upon it by Mr Lysnar. Mooney had a contract from the Council, which was assignable at law. On the 21th April last he assigned it for valuable consideration to Geo. Cottrell. If there was any money on the completion of No. 2 contract coming to Mooney on account of of it, then the- workmen engaged on the first contract and the creditors of Mooney were entitled to it. Whether there would be a surplus he did not know, but he hoped there would be. The position to his mind did not require any argument. The Council had acted in good faith in the matter. They had entered into a contract with Mooney, who by sub-letting to Cottrell had placed Cottrell in Mooney’s shoes, as far as the legal aspect of the ease was concerned. The Council were entitled to retain 25 per cent., but they were compelled to pay it to Mooney by his representative Cottrell at the end of the statutory period. He submitted that on the facts one contract had nothing to do with another. It was patent that nothing in connection with these claims could in any way disturb tho position of Mooney’s assignee, Cottrell.

Mr Lysnar said the assignment had really nothing to do with tho matter. This was quite clear by the Act, and by other cases which could bo quoted. His Worship thought the point at issue was whether workmen engaged on No. 1 contract could claim in respect of a second contract.

Mr Lysnar quoted from tho Interpretation Act, of 1888, section 4 of tho Contractors’ and Workmen’s Liens and other sections in support of his, argument. Unfortunately, tho Act did not contemplate one contractor having two contracts with the one employer at the same time, and this case was peculiar in that respect. Ho quoted section sof the Act of 1892 to prove that a workman was entitled to a share of money in respect of work done by him and arising from that work, which was payable to any contractor or sub-contractor by whom he was employed. On tho 29th May last the Council had paid £l5O to Mooney, after receipt of notice by tire workmen of default on Mooney’s part. The money was paid to Cottrell, but in the eyes of the law in this particular instance Cottrell was Mooney for the time being, and the money was therefore paid to Mooney. Tho Council had no right to pay that money out after receiving tho notices referred to. Ho cited sections 11 and 12 of tho Act to corroborate his statement. If the money had been paid to a sub-contractor or workmen under the second contract, it would have been a different thing. His Worship said that, after payment of all liabilities in respect of contract No. 2, if there was any surplus remaining it would be divided amongst the men claiming in respect of the first contract. That was indisputable. Tho workmen employed on No. 2 contract were entitled to to paid in full before the workmen in No. 1 contract could have any say in the matter at all, otherwise it might so happen, if workmen engaged on a first contract could attach moneys due on a second contract, the workmen on No. 1 contract might bo paid in -full, while those connected with No. 2 might get nothing. They might absorb all the proceeds of the contract.

Mi- Lysnar went fully into the subject : he contended that Mooney had received over .£3OO under the iivst contract, and was compelled by section 0 of Hie Workmen's Wages Act of 1593 to iirst pay his workmen.- As he had not paid the workmen under the first contract out of this money lie (Mr Lysnar) presumed that lie had paid the wages duo under the second contract, and therefore the workmen .under No. 1 contract who had not been paid were entitled to a lien on the money due and payable to Mooney by the Council under the second contract, especially as the Council had received notice of lien before they paid the £l3O. Mr Lysnar also quoted from a ease recently decided by the Court of Appeal, as showing that the workmen wore entitled to a lien over the whole of the moneys, or any money due to the contractor by the employer. Mr DeLautour submitted that where a contractor and sub-contractor bad a common employer, the sub-contractor had a right against all moneys becoming duo to the contractor by the employer during the course of any employment. This was a unique case. It had never occurred before, whore one contractor had two or three contracts from a Council paying workmen from one at the expense of the other. The question was whether the Court- should hold the employer liable for paying over money after he had received notice. lie then proceeded to argue on the rights of ins client, Brown, who was a sub-contractor in the matter ; after which His Worship said that owing to the importance of the case he would take time to consider his judgment, and would probably deliver same on Thursday next.

A man named Garland Haino was killed at the Bellevue mine, Mount Sir Samuel (W.A.), by a fall of earth.

A scaffold at some now building in Liverpool street, Sydney, collapsed on June AS, seriously injuring one of the workmen, who were precipitated to the ground.

The column of the morning newspaper' is the merchant’s nostrum. It is his pulpit. It is Ins stump. 1-rom that he addresses the public at large. Advertising is the channel through which the merchant speaks to the people he desires to address. —Ogden.

The Mayor of Fcilding has written to Mr T. F. Martin, solicitor .to the Municipal Association, asking for an opinion as to whether it is absolutely necessary to start tin abattoir in Fcilding. The Marawatu County Council has declined to cooperate in any abattoir scheme, explaining that practically no butchers in the county would uscjhe abattoirs.

Mr Massey, member for Franklin] speaking on the Industrial Conciliation Amendment Bill, referred to the general prosperity of the colony. Ho stated emphatically that the reason why New Zealand had been so prosperous was that owing to the South African war there had been a steady demand for everything which the colony could produce. The Government, he declared, had no more to do with that prosperity than fish had in making sea-water salt, (Laughter). The Stale will possibly become its own coal merchant. It is an experiment that is likely .to affect private enterprise, and lower the price of fuel, provided the Government coal miners can be induced to work as hard, for reasonable wages, as the miner who works for private coalowners. Presumably, if the Government is capable of supplying fuel at less rates for its own use, it will also supply coal to ordinary consumers, gradually ousting the coal-owner, and creating a monopol v by under-selling. Another step in the direction of State it seems likely .that the Government maybecome the universal provider for the country. It might do worse.—Fre e Lance.