IMPORTANT TEST CASE

Nelson Evening Mail, Volume LXVI, 4 September 1934, Page 8

IMPORTANT TEST CASE

APPRENTICE LAW FULL COURT DECISION Legislation in New Zealand relating to apprenticeships was reviewed in three long judgments of Judges of the Full Court at Wellington which were delivered last week in a case of considerable general importance (reports “The Post”). The plaintiff was George Henry Burton, an apprentice, and the defendant, the Precision Engineering Co., Ltd., Wellington. Burton was suspended by the company, and claimed £SOO damages for breach of contract. Legal propositions were raised on liehalf of the defence and the ease was removed into the Full Court for argument on the questions of law. By a majority decision —Mr Justice Ostler and Mr Justice Johnston for and the Chief Justice (Sir Michael t Myers) against—the Full Court has held: (1) That by reason of the general order of thp Court of Arbitration of 4th August, 102(5, amending all apprenticeship orders, the Apprentices Act of 1923 and its amendments apply to the contract; and (2) that the plain tiff’s remedies for the enforcement of the contract are restricted to the remedies provided by the Act. On Bth July, 1029, the defendant company, which is engaged in the engineering trade, entered into a contract of apprenticeship with the plaintiff and his father .whereby it agreed to employ the plaintiff for five years, to teacli him the trade, and to pay him certain wages. The plaintiff was suspended by tho defendant on 18tli September, 1933. JURISDICTION SAVED The first question of law for decision was whether the Art still applied to the contract. Mr Justice Ostler said that in his opinion it did. Although tho award was cancelled, the Apprenticeship Older made on 30th December 1924, was not cancelled, and there was no practical difficulty in reading the .provisions of the award referred to ‘into the order and, as part of the order, into the contracts to which the order applied. The Court of Arbitration, in his opinion, had jurisdiction to hear and determine the defendant company’s application for tli e cancellation of its contract with the plaintiff. Its jurisdiction was saved by the general order. The question then arose whether, notwithstanding that the Apprenticeship Act, 1923, applied to the contract, the plaintiff could sue in the Supremo Court for damages for a breach of or for the repudiation of the contract. His Honour took the view that the plaintiff could not do so without first getting the amount of damages fixed by a Magistrate as provided under section 15 of the Apprentices Amendment Act, 1930, or under section

5(5 of the Finance Act, 1932, if the employer made an application under that section for the cancellation of the contract. i

BOUND BY THE ACT Mr Justice Johnston,, in a separate judgment, also came to the conclusion that the Act still applied to the parties to the action and their contract. At the time the contract was entered into, said his Honour, an order of Court had been made and was in force directing that the Act apply, inter alios, to all employers in the engineering industry. The defendant came within that class and in his Honour’s view of the significance of tho order was hound by the Act whether lie had been stepping in or out of industrial awards or not. As a matter of fact it appeared that at the time he entered into the contract he was not subject to an award at all and, therefore, it was by virtue only of the order the Act applied to him and his contract. However, whether he was subject to the Act by section 3 or by order under that section, his contracts, made while so subject, were for the period of their duration subject to the Act.

DISSENTING VIEW i The Chief Justice took the view that as from 17th April, 1932, the date of the cancellation of the award, the Apprentices Act, 1032, and its amendments ceased to have any application to the apprenticeship 'Contract or to the parties. His Honour said he agreed with the President of the Court of Arbitration (Mr Justice Frazer) in re Otago Motor Engineering Trade Apprenticeship order where he stated that it would be illogical to construe the Act in such a way as to leave the minority of employers bound by the provisions of the Act and of an apprenticeship order made thereunder while the majority were no longer subject thereto by reason of the cancel latioii of the award. Put in other words, when the award or industrial agreement ceased to exist, th 0 foundation of the application of the Act had gone and there was nothing to support tlie sueprstructure. \ There was no doubt considerable force in the argument on behalf of the defendant, his Honour concluded, that the parties to the apprenticeship contract were restricted to the statutory remedies prescribed by the A{>prentices Act and its amendments, and that if these Acts ceased to apply there was no other remedy. But on the best consideration that he was able to give to the case he did not accept that view. All that the Apprentices Act, 1923, and its amendments did, he thought, was to provide that so long as the Acts applied to a particular contract the parties should have no other remedies than the Acts themselves prescribed; but, if the Acts ceased to apply but the contract remained in its essential features, lie saw no reason \vhy a party thereto should not have available to him the ordinary remedy in damages if the other party committed a breach of contract in respect of those essential features.