BREACHES OF INDUSTRIAL AWARDS.

Lyttelton Times, Volume CXX, Issue 14916, 11 February 1909, Page 5

BREACHES OF INDUSTRIAL AWARDS.

MAGISTRATE REFUSES ADJOURNMENTS. The distinction of being fined by a Judge is no longer achieved by the employer or employoe who commits a breach of an Arbitration Court award, for the amended Aot provides that breaches shall he dealt with by a Magistrate instead of going to the Arbitration Court. Yesterday, at the Magistrate’s Court, Mr H. W. Bishop, S.M., sat to hear a number of charges brought by the Inspector of Awards. The procedure was rather peculiar, the cases taking the form of a quasi-ciyil claim by the Inspector of Awards ior the recovery of a penalty. The Magistrate himself expressed hie inability to define the class of procedure, but said that there was no mistake about- the jurisdiction of the Magistrate to impose a substantial fine. FIRST OR SECOND DRAYS. The first case taken was that of Inspector Newton v. G. Payling and Co. Tlie plaintiff claimed £lO as a penalty for a breach of the drivers’ award, inasmuch as the defendant company, from November 12 to January 2, had employed a youth named Harry Smith, under the age of nineteen, as a driver, without having any other driver in their employment, and contrary to the provisions of Clause 12 of the award. The defendant admitted the breach. He stated, however, that in November the inspector had obtained an interpretation of the award, in which the Judge decided that as he (the defendant) was contracting with Mr Berry, a carrier, for his first dray, he was not entitled to call his second dray a second dray according to the Act, and therefore he would not be able to employ a youth at the Union wage of 30s. Smith was receiving the full Union rate as a second driver, and as soon as -the interpretation was given defendant saw Berry, who agreed to employ Smith, because he was running the first dray. Arrangements were nitido that Smith should be regarded as in Berry’s employ. However, he had made the mistake in first not discharging him, and letting Berry re-employ him. In the alternative he might have had the drivers changed from one drav to the other, and no breach would nave been committed.

Inspector Newton stated that the Department looked at the alteration made by Berry merely as an attempt to evade the award. The young man had been doing the same work throughout.

A MAGISTERIAL DIFFICULTY. The Magistrate said that the defendant had stated that there had been no deliberate evasion, and he was prepared to accept his word. He did not understand why the inspector was suing for £lO. In such .cases Section 16 of the Act provided that the Magistrate might give judgment for the total amount claimed or any greater or less amount that be thought fit not exceeding in any one breach £IOO. What was the object of fixing £lO. Inspector Newton said that it was to approximate tile seriousness of the breach.

The Magistrate: Then you are usurping the functions of this Court. Do you indicate £lO as what you think the breach is worth?

Inspector Newton : We are instructed to apply for £lO. The Magistrate: When I may fine him a shilling or a. hundred pounds? Inspector Newton: It is fixed by the Department. The Magistrate: It is a most extraordinary instance in legislation of this sort. I have absolute discretion, and yet you choose to sue him for £lO. Inspector Newton: It does not affect the position.

The Magistrate: Of course it does not affect the position : but as this is new procedure I wanted to understand what attitude was taken up by the Department. A fine of 40s and costs was inflicted. AN UNDERPAID BAKER.

In the case of A. H. Blake, baker, of Peterborough Street, for whom Mr Leathern appeared, the Inspector claimed £lO as a penalty for a breach of the drivers’ award, the allegation being that Blake had employed a man named Walter Harrison, over the age of twenty-one years, as a driver and had paid him £1 17s 6d instead or £2 2s as provided by the award. Mr Leathern asked for an adjournment.

The Magistrate said that he could not grant an adjournment. The business was special and a special day had been appointed. He would not adjourn breach of award cases. His engagements would not permit it. In reply to the Magistrate Mr Leathem said that ho understood that tho breach had been practically admitted. A defence had been put in. The Magistrate: There is no defence put in. The Act provides only that two days’ notice of intention to defend must be given. Either he committed the breach or lie did not. Inspector Hagger proceeded to state the case for the Department, when the Magistrate asked Mr Leathern what would be the uso of denying the breach.

Mr Leathern said that Harrison from May, 19C6, to December, 1907, had been over-paid 53 a week, and from then to June, 190 S, 2s 6d a week, the total over-paid being £lB. When he attained the age of twenty-one years no notice had been given to Blake that he was entitled to £2 2s. The Magistrate: What has that got to do with it P Mr Leathern: The other defence I am instructed to raise is that the address of the plaintiff is not given. All that is given is “ Hugh B. Bower, Department of Labour.” , The Magistrate: That, is an ofbcial address. Mr Bishop went on to point out that the rules were not those of the Magistrate’s Court, There were special rules. The Court was a special Court, It was a sort of a mixture that he could not exactly define. The Magistrate could inflict a penalty under a special form of procedure which was established by filing a claim in the Magistrate’s Court, but not under Magistrate’s Court rules. Therefore, special rules had to be framed to give jurisdiction to the Magistrate. The cases were not under the Magistrate’s Court Act, except in regard to enforcements. The penalty was a quasicriminal penalty, recoverable in the Magistrate’s Court, but not otherwise. Mr Leathern said that he was not acquainted with the procedure. The defendant was away in Napier. THE MAGISTRATE’S VIEWS. In fixing a penalty of £5, the Magistrate said that in all these cases the Court must take into consideration the general circumstances as' judicially as it would under any other statute where a man was charged with a breach. It was a new jurisdiction given to a Magistrate, and that was his first Court held under the Act. He had not the slightest doubt that there would be vmy great differences of opinion between Magistrates throughout the dominion with regard to penalties. _ It was a question of personal equation. Some of the Magistrates might feel it to be their duty to inflict very heavy penalties, the maximum provided by the Act being £IOO for an employer and £5 for an employee. It seemed to him that the Magistrate must necessarily be answerable to himself and himself alone, having due regard to lus Position and the responsibility of Ins office, and lie must judge according to the circumstances and the views he took of them. Personally he was not prepared to inflict very heavy penalties, especially in what was practically new procedure. But there were_ cases, of course, in which the penalties must he substantial. Those would be the cases in which there had been persistent

breach after warning, where there was absolutely no excuse on the part of the employer, or where the breach was not the first. Then it would be the duty of the Court to inflict a very heavy penalty. He did not attach the smallest importance to the statement that might be urged against the infliction of fairly lenient penalties that they would practically encourage breaches of awards. That was perfectly absurd, for it must be remembered that the Court had power to very soon put a stop to breaches. If an employer misunderstood the leniency of the Court and came before the Court for a repetition of offences, he could not be surprised if he was fined a substantial amount. The Couit could protect people against constant and persistent evasion of breaches of awards. Where the person charged defended unsuccessfully and showed that he was not prepared to accept the position as it was. then he would feel it his duty to inflict a greater penalty than in the case of those who admitted the breach. In reply to the Magistrate, Inspector Hagger explained that the costs were similar to those in the Magistrate’s Court. A CASUAL BOOTMAKER. William Taylor, who did not appear, was the subject of a claim by the Inspector for £2 for a breach of the New Zealand Federated Bootmakers’ award, in that on December 12 he had left the employ of M. O’Brien and Co. without giving twenty-four hours’ notice. A letter was received from the defendant admitting the breach and asking for leniency. In reply to the Magistrate, Inspector Newton said that the offence had been repeated, and it was with a view to stopping it that the claim had been brought. The defendant was fined £2 and costs. WAITING FOR 12s 6d. Frederick P. Smith, in response to a claim for £lO for a breach of the hotel and restaurant employees’ award, admitted that fro-m December 23 to January 17 he had employed a waitress at 12s 6d a week instead of at not less than 15s as a probationer. He stated that he had received no notice that the award was in force. In reply to the Magistrate the defendant admitted that he had been cited. He added that when he found tnat the award was in force he could

not afford to pay the girl more, and had given her notice. He had agreed, to pay her the arrears, which amounted to 7s 6d a week for three weeks. The Maristrate: As a rule the Department hears of these cases through dismissals.

Inspector Hagger: The Department expects us to take action in the case of dismissals. The waitress was dismissed because she was entitled to Union rates of pay. The Marriitrate said that the excuse hardly met the charge. A fine of £2 was imposed. NON-UNIONISTS EMPLOYED.

T. Andrews, plasterer, was sued by the Inspector for £lO, as a penalty for breach of the Plasterers’ award, in that he had employed a non-unionist when tlieTe were unionists available. The defendant admitted the breach, hut said that he had advertised for men, and took on the applicants regardless of preference.. Inspector Newton said that there were five men on the hooks at the time. The defendant h-d been fined two or three times for breaches. A penalty of £lO and costs was infLioij&cl Arthur Brightmore and Sons (Mr Dougall) admitted that they had employed a non-unionist as a bricklayer on January 25 when unionists were available, for which £lO was claimed. Mr Dougall. on behalf of the defendants. asked for leniency,. They had never been before the Court previously., The non-unionist was an old employee* and when the breach was discovered he was dismissed, and joined the Union. . ■ : A fine of £3 and costs was inflicted.