HOLIDAY PAY

Grey River Argus, 3 May 1938, Page 4

HOLIDAY PAY

FOR TIMBER WORKERS Question Before Court Legal argument on the ellects the Westland Timber Workcts Award in relation to holidays, occu"”<i M,-ssr “ (employers’ assessot), and A. - Leith (employees’ assessor), In <- Arbitration Court yesterday nrtcinoon. Mr W. Douglas Taylor appear-

ed for the plaintiff, the West mt n Timber Workers’ Union, and Mi - A. Kitchingham represented lh< <1 fendant s. . The first case stated Iron he Magistrate’s Court, was against the Unified Sawmills Ltd, m respect of failure to make payment to A. H , of wages for Sunday, April 2.), IJ3(, being Anzac Day. The question lor determination was whether, in t circumstances and in v|ew of the terms of the Westland ’Umber Yaids and Sawmills Employees’ Award, 1936 the defendant Company haft committed a breach of the provisions of Clause 4A of the Award, by nonpayment of wages for Anzac Day. The second and third cases agams (he Omoto Sawmilling Coy. Ltd and Hahn Bros, were in respect °1 lai - ure to pay Henry Campbell and Alfred Heisenbuttel respectively wages in respect of Boxing Day, W36. Ihe question for determination in each case was whether in so doing, the defendants had committed a breach of the Westland Timber Yards and Sawmills Employees’ Award (Clause 4A). On the suggestion of Mr Hannan, who stated that two of the cases referred to Boxing Day, and one to Anzac Day, the cases were taken toget her. In reply to Mr Monteith, Mr Hannan said ‘that on the Anzac Day m question, the day fell on a Sunday, so that there were really two Sundays in the week. Mr Taylor said that the actions arose out of the question of the proper construction of the New Zealand Timberworkers’ Award. He would refer the Court to Clause 4, which set out the holidays to be mven and to be paid for at ordinary rates. In the case against United Sawmills, Anzac Day, 1937, fell on a Sunday, and the question for determination was whether a worker who was paid for 40 hours in that week, was entitled to payment for Anzac Day His Honour: Was any work done on that day ? Mr Taylor: I understand there was not. , , , His Honour: If work had been done, double pay would have to be given. The question at issue was whether in fact— Sunday not being a working day—double or ordinary rates of pay were payable. Mr Prime pointed out that Anzac Day was specifically mentioned as a holiday. Mr Taylor said that his case was thfff whether the named days, whether they were working days or otherwise or whether they were Sundays, hau to be paid for. His Honour: Those named days have to be paid for whether there is work or not. There is no mention of Sundays, so that there would be no payment except when work is done on a Sunday. . . I Mr Taylor said that was a point in all cases. Paragraph Six of the statement in Hahn’s case showed that. Heisenbuttel worked for 14 hours on the Monday and Tuesday in, Christmas Week, and that the mill was closed on December 22nd, at about. 3 p.m. Although work had been offered Heinsenbuttel he had declined, as it was wet, and he was .ordinarily an indoor worker. Defendants paid him £1 4s Od for Christmas Day, and he did not work on Boxing Day and had received no wages for that day. In counsels opinion, Heisenbuttel's refusal to work on the tramway in the open was justified in view of the facts. In reply to Mr Prime, Mr Taylor said that payment had been made for Christmas Day, but not for Boxing Day. Mr Taylor added that the case against United Sawmills showed that Henry Campbell had worked 32 hours from Monday to Thursday, at eight nours per day. Friday, Christmas Day, was paid for at the ordinary rates under the Award. To Mr Prime: He had been paid for 40 hours. I

Mr Taylor said that the question was whether he was entitled to pay for Boxing Day, one of the days named in the Award. He submitted that the employers may require the worker to work for more than 40 hours in a week by paying overtime, under Clause 2A of the Award. Mr Prime: Is it suggested that the men come, in these cases, under Clauses 2B or 2C of the Award ?

Mr Taylor: No. Clause 2A contains provision for a 40-hour week to be worked if possible on the first five days of the week, at not more than eight hours a day. He submitted that under the Clause, the employer was entitled to call the men to work outside of the first five days. His Honour: There is nothing to authorise more than 40 hours. The Award may allow a spread of the work. Mr Taylor: Yes.

Mr Prime: What was the practice ? Mr Taylor: To work from Monday to Friday inclusive. A worker could be required to work on more than five days in the week. Mr Prime: Except that if it is possible to work on only five days they should do so.. Mr Taylor.’ Yes. But that is rather a loose way of terming it. Mr Taylor submitted that the Court’s judgment could be concluded fiom the case, Cathie v. Kinsman, in which case provision was made for; holidays which were to be paid for at ordinary rates. The award under consideration stated that “the following holidays shall be given and paid f0r...” which was a much stronger term. The second case could be considered in the light of the case re. N.Z. Refrigeration Coy. Ltd., in the I 1937 Book of Awards. The question j there was whether a fireman who| completed his watch on New Year’s Eve was entitled to pay for New. Year’s Day. Mr Taylor submitted lengthy writ-1 ten argument in support of his contentions. i His Honour: Are these sawmills factories ?

Mr Taylor: The Court of Appeal in a case just published in the newspapers has decided that timber stackers do not come under the Factories Act. There may be two separate sections—those at the mills and those in the bush. . x His Honour: Those for instance sawing in the mills would come under the Factories Act ? Mr Taylor: Yes. Mr Monteith: A sawmill is a registered factory ? Mr Taylor: Yes. Mr Monteith: The appeal you mention was on a question of whether workers in timber yards came under the Factories Act. That is quite a, different proposition. [ Mr Taylor: Yes. 1

DEFENCE CONTENTIONS.

Mr Hannan said that so far as Anzac Dav was concerned, the defence relied on the Christchurch Gasworks appeal reported in 1926, in which case the Court decided by a majority that, where Anzac Day fell on a Sunday, payment should not be made If men employed on a Sunday had to get double pay, they would be entitled to treble or quadruple pay if that day also happened to be Anzac Mr Monteith: The difference in the case you quote is that the words used were that certain days “shall be recognised" as holidays, whereas, in the present award, the words are “shall be given and paid for.” Mr Hannan: Yes. That is so. Mr Hannan referred to the Public Holidays Act, 1910, which set out that certain holidays were fixed to be observed on Mondays, and there was a statutory provision that when th Q King’s Birthday fell on a Sunday, it was to be observed on the following Monday. The same applied to New Year’s Day. In 1921, an amendment to the Act made special provision for Christmas Day and New Year’s Day if they fell on a Sunday. Where Christmas Day is on a Sunday, that day is to be observed on a Monday, and Boxing Day is to be observed on the following day, but where Boxing Day or Anzac Day fell on a Sunday, there was no provision for changing the date of their observance. Mr Monteith: The effect of that is that there are four holidays under the Act. Mr Hannan: Yes, except of course, that certain other holidays are always observed on a Monday, such as Easter Monday and Labour Day. Counsel referred to Vol. 25a of the Book of Awards in re. to the Wanganui Borough Tramways Workers’ Award-. In that case, if a holiday fell on a day on which there was no work, it was held that there should be no pay, and if it fell on a working day, pay-; ment should be made. Mr Monteith: Doesn’t that award make provision for a weekly pay ? Mr Hannan: I don’t know. The award is not given with the case. His Honour: Your submission is that if Anzac Day falls on a Sunday, no payment should be made ? Mr Hannan: Yes. As far as Boxing Day is concerned it is governed by the decision of the Court in the Cathie case, where Mr Justice Frazer held that the inen had to be paid only when a holiday fell on a day

when there was work available. The Westland Timber Workers Award differed from Cathie’s award, because the Court in the latter case, decided

that payment had to be made under

the Factories Act (Sec. 35), as amended by the 1936 Act, which specifically mentioned that the holidays had to be paid for to all workers who had been working for a fortnight prior to the holiday. Provision was made in the Act for the payment for holidays at the same rate as ordinary day pay. The rates in the present case were hourly, with the exception of night-watchmen. The Court in the otner cases had held that there was no ambiguity in the awards and said that eight hours’ pay had been given.

In the Westland Award it is stated that payment had to be made at the ordinary rate for holidays. Mr Monteith: The rate and the time are two different things. Mr Hannan: Suppose a man work!ed 38 hours up to Christmas Day. I ' contend that he is entitled to only two hours’ pay. Mr Monteith: Have you given him the holiday and paid him for it ? Mr Hannan: No. Mr Monteith: Then you are only paying him for part of it. Mr Hannan: You are to pay at the ordinary rates. What are they ? If a man is paid 2s 6d per hour, how many hours is he entitled to ? The intention of the parties may have been one thing, but they have made an ambiguous award. There is no provision for holiday pay for the men if they have worked for a week as set out in the Factories Act. All the millers had to do on Christmas Eve was to give the men 24 hours’ notice as they were entitled to do under the Award. ) Mi- Monteith: But they didn’t. Mr Hannan: No. Mr Monteith; Oh 1 Well, that’s different. Mr Hannan: I am merely putting to the Court that the Factories Act sots out that a man is to be paid the day's wages if he has worked a fortnight. The award we are considering makes no such provision. His Honour: It seems some men are employed on an hourly basis, and some by the week.

Mr Hannan: All are on an hourly j basis except night-watchmen. The , decisions in the Gasworks and Cathie’s ! cases are at variance. In this case the proceedings were brought by an employee, who sued for £1 for a day’s wages, but the Magistrate gave judgment for the employers. If the Court should hold Anzac Day was in the same position as Cathie’s case, there would be two conflicting decisions, and the matter would still be the same if workers sued for their wages. Mr Hannan finally submitted that in view of the circumstances, the matter should be referred to the Court of Appeal for decision His Honour; Are you suggesting .' that we should refer, the three cases to the Court of Appeal ? ■ Mr Hannan: Yes, in view of the decisions in Cathie’s and the Gasworks’ cases Mr Taylor in reply to Mr Hannan's argument, said that Mr Hannan had endeavoured to distinguish the case from Cathie’s case. That showed the futility of sending the case to the Court of Appeal, because the question would arise with each case as it came along. His Honour: Yes, of course.

Mr Taylor said that the difficulty with regard to Anzac Day seemed to be with regard to the rate of pay. He submitted that that question was by Clause 4b of the Award

which provided that work done on Sundays and holidays had to be paid for at double rates. If a man did not work on a holiday, he had to be paid, and if he worked, he had to get double pay. His right was limited to that. i His Honour: This award makes it] clear that if work is done bn a Sun-j day, it has to be paid for at double i rates. I Mr Hannan said that it was the same in the gasworks case. Mr Monteith said that in the Gasworks case, although there was provision for an hourly wage, there was also provision for no deduction from that wage. | Mr Prime: It is an hourly wage ati weekly employment. I

Mr Monteith: Yes. That’s what it looks like.

Mr Taylor submitted that on the Boxing Day question, there was no ambiguity in the award, and that being so, the named days must be paid for whenever, they fell. In reply to Mr Monteith, Mr Han

nan referred to the 1931 Book of Awards in the North Taranaki Drivers’ Award, where reference was made that no deduction should be made from weekly wages. The Court held that payment should be made only for the time a worker could work.

Mr Monteith: All the cases you quote apply only to weekly workers. Announcing that the Court would reserve its decision, His Honour said that the case seemed to be somewhat like a "Chinese puzzle.”