Magistrate Comments On Divergencies In Leading Evidence

Northern Advocate, 23 July 1938, Page 10

Magistrate Comments On Divergencies In Leading Evidence

••rpHE DISCREPANCY AMONG THE WITNESSES EOK THE DEPART- ' MENT IN IKE CASE OF ONE OR TWO MEN IS MORE THAN EXAGGERATION; SOME OF IT IS A DOWNRIGHT ATTEMPT TO DECEIVE ME,” DECLARED MR. G. N. MORRIS, S.M., IN THE MAGISTRATE’S COURT YESTERDAY, WHEN SUMMING UP THE CASE IN WHICH THE DEPARTMENT OF LABOUR IS PROCEEDING AGAINST THE WHANGAREI HARBOUR BOARD CLAIMING PENALTIES IN RESPECT* OF FOUR CHARGES.

The case was commenced on June 15, when evidence for the department w:£ heard I'rom several men engaged by the Harbour Board. Evidence for the defence was heard yesterday, the court sitting throughout the day. Mr. C. P. Collins conducted the case for the department and Mr. R. K. Trimmer that for the defence. Of the four charges brought, one was withdrawn and decisions reserved in the ether three.

Penalties of £lO w’erc claimed against the beard in respect of each of four charges, namely—employing men In wet places without giving eight hours pay for six hours work, permitting workers to do work covered by another award, employing a man overtime without payment, and failing to pay the minimum rates of pay specified under the New Zealand Harbour Boards’ Employees Ad. The third charge was withdrawn with the consent of the department. Department’s Contentions Summing up after yesterday’s evidence. Mr. Collins held that the first claim was mainly a question of fact, having little relation to the other claims. In this claim it was contended, he said, that the men. concerned were frequently required to stand in water over three inches deep, for which the board did not supply gumboots of sufficient protection. The department also contended that gumboots were not “provided” unless they were available to the workers each day on which they were required to stand in water more than three inches deep. Claim two mainly depended on claim four, declared Mr. Collins. In the latter case, the department contended that- the men concerned were regularly employed on ordinary harbour board work. In fact, he said, they could be held to be permanent employees. Three men cited in the charge were, he held, general hands and entitled to £4/15/- per week. They had all been regularly employed and the award must prevail over any existing contract of service. It was sufficient if the men were substantially employed on normal harbour board work.

‘‘This is the biggest discrepancy ( we have had in the evidence,” remarked Mr. Morris, when witness had outlined the state of gumboots at Rohe Island. “It is ready remarkable ” he added. Defence Replies In his address to the court, Mr. Trimmer remarked that the whole \ thing was a question of whether the j men were permanent or .casual em- i ployees. The harbour board employees' award was made in Novem-' her last year, while the borough council labourers’ award came into operation in October. The former referred to workers “regularly or permanently” employed by harbour boards. “One may naturally ask if a relief worker is a casual employee,” he said. “If the court were to make a pronouncement that relief workers were permanent employees, there would be some men in New Zealand, including the Minister of Labour, whose x hair j would stand on end.” Under clause 8 of the October award, said Mr. Trimmer, there was nothing to prevent a man from working under another award, providing he was paid accordingly. The November award was never meant to apply to such work as that under consideration. It would toe a different matter in the case of a carpenters’ award, he said. “Not one of the men was employed by the week,” he said. “They were all paid toy the hour. The department claims as the basis of its charges, not whether these men were permanent or casual, tout the nature of the work. I find it difficult to see anything which could prove that these men were permanently or regularly engaged hands. When you have such employment that the local placement officer can ring up and take a man off it and put him to his own trade, I must ask —could the placement officer do that with ariy employees known in the ordinary light as regular or permanent employees? Definitely not.” This, continued Mr. Trimmer, would rule cut claim 4, and with it, of course, claim 2. Kingsford Smith Recalled. Regarding claim 1 and its reference to wet work, Mr. Trimmer drew attention to the fact that seven years ago Kingsford Smith had landed at Pohe Island. This would give some idea of the state of the ground. “When one reads through the 10 pages of evidence produced toy the department, one is compelled to say that, with the conglomeration of contradiction. among their own witnesses, it is impossible for the court to enter a conviction," declared Mr. Trimmer. Mr. Trimmer then detailed the various undertakings at which the men were engaged and the conflict of evidence between, the department’s witnesses and the evidence for the defence.

Under claim two, Mr. Collins stated that the department considered that, while four of the men were engaged under- the Labourers’ Award, they did work coming under the scope of the Harbour Board Employees’ Award and should be paid the higher rate. For the Defence Evidence during the morning was given by M. A. dredgemaster, who declared that the man cited in charge 3 was engaged as Bi fireman only for a portion of the day, another man having the responsibility of the work. At a later stage Mr. Collins agreed' to withdrawing this claim. William Durham, carpenter, said that three pairs of gumboots' were provided at the Onerahi jetty job, .but owing to the hot weather the men took every opportunity of keeping in the water. They preferred light shoes during the summer both for safety and as relief from' the heat. No one had complained of not having gumboots. No ordinary man would wear them under the conditions of work, he said. William Conway Bissett, foreman, of the Onerahi job, corroborated this evidence. Mr. Collins at this stage was granted leave to abandon his claim for wet time as far as the Onerahi work was concerned. Keith Waters, salesman, living near Fohe Island, said he had known the locality for at least 10 years, and had seen it ploughed, farmed and grassed. It was nonsense to say, as a witness for the department had said, that there was a sheet of water three inches deep ever the area, even In winter. John Carpenter, a member of the Pche Island gang, said the land he had been working on: was dry. Mr. Collins; Did you not grumble because you were not included in the claim for wet time? —No. Gumboots Available

Th magistrate: I take it that the department is not satisfied that hoots should be aavilable. It seems the department considers the board should notify the men. Mr. Collins: Yes, I think that is so. A Morning Parade? Mr. Trimmer: Does that mean that every morning each man shall be lined up and asked by the foreman if he would like a pair of gumboots for the day's work? The magistrate: I don’t think it means to go as far as that. Mr. Trimmer referred to. statutory prevision for dismissing a charge where the offence was trivial or excusable. He did not think that Parliament expected every employer to be convicted and fined for minor breaches committed unwittingly. Mr, Collins stated that the department was in agreement over the triviality of the offence. It was only the delay of the board’s secretary, Mr. Fraser, to come down to facts when the matters were being discussed which had necessitated court proceedings. Summing up the case, Mr. Morris said that the important thing to decide with regard to the boots was to what extent the, board was to go in making them available for the men. He would hold over consideration of the term “shall provide.’ ’lt was difficult to come to a decision in the matter owing to the discrepancy in the evidence. The magistrate reserved his decision on the three claims. ! A N indication that the police intend to take action if insurance companies continued to instruct clients not to make statements to the police in motoring accidents, was given by SubInspector W. S. Packer, in the Magistrate’s Court yesterday afternoon, when a charge of failing to give way to a vehicle approaching from the right was heard against a motorist

Innes MacKenzie, foreman employed by the board, declared that whenever men had wanted gumboots they were available for them. Answering Mr. Trimmer, witness said that the local employment officers had taken men away at times for a few days to work at their trades and then returned them. He substantiated previous witnesses' evidence regarding the preference for light shoes during the hot weather on Fohe Island. At the fish-sheds there was never any occasion for paying wet-time. If men did not have gumbcots at any time when they were needed they were kept off that work until boots were provided, he declared. Continuing, witness outlined the work that had been done on Pohe Island, When Kingsford Smith landed in 1931. about 800 chains of drain had been filled In for him to land. So free from moisture was the* area, he said, that his wife was in the habit of bringing him his lunch, walking in slices across the section where the men were working. Witness went on to refute various statements made by witnesses for the department regarding the nature of the work in various places and their difficulty regarding gumboots.