WAGES BASIS

New Zealand Herald, Volume LXXIV, Issue 22859, 14 October 1937, Page 15

WAGES BASIS

COMPENSATION CLAIM FULL WEEK'S EARNINGS EMPLOYEE ON PIECEWORK APPEAL COURT'S DECISION [by telegraph—OWN' correspondent] "WELLINGTON, Wednesday In the action for compensation under the Workers' Compensation Acts submitted by the Court of Arbitration to the Court of Appeal at Wellington, asking the Court's opinion on which basis the weekly earnings of plaintiff are to be calculated, the judgment of the Court, delivered to-day by the Chief Justice, Sir Michael Myers, found that Thomas Robertson, miner, of Waihi, was entitled to have his compensation from the Martha Gold Mining Company (Waihi), Limited, calculated in accordance with paragraph (a) of section 7, sub-section 3, of the Workers' Compensation Amendment Act, 1936. The case was heard on September 28 before the Chief .Justice, Mr. Justice Ostler, Mr. Justice Smith and Mr. Justice Fair. Mr. J. J. Sullivan appeared for plaintiff and Mr. H. P. Richmond for defendant company. Amendment of Law

"Plaintiff is what is called a substitute or scout member of a party of contractors working for the defendant company,'' the judgment stated. "The party had commenced its work under contract on November 10, 1936, but plaintiff commenced work with the party on March 19, 1937. and sustained injury hy accident on the same day. The principle upon which the compensation payable to scout member of a party of contractors is computed was considered by the Court of Arbitration in 1935, where it was held that the average weekly earnings must be computed in the manner set out in section 6 (2) of the Workers' Compensation Act, 1922, and that the average weekly earnings of a scout, not those of a permanent member "of a party of contractors, must be taken as the basis of computation. On October 29, 1936, there was passed the Workers' Compensation Amendment Act, 1936. Plaintiff s rights have therefore to be determined now under section 7 of the amending Act." Plaintiff's Status The judgment continued that plaintiff was not engaged by the contractors as a wages-man but was treated by the. party of contractors as though he were a member of the party. According to the case stated Jiis earnings were proportionate to the net earnings of the party for the period during which he worked. " The case also expressly finds that plaintiff was at the material time a person whose remuneration was fix®d by reference to the amount of work done by him," says the judgment. "The work for the particular week could have been measured up and the ordinary rate of pay for that week thus ascertained. Amount Ascertainable

"In point of fact, however, it was customary in the mine for the work to be measured up by the defendant company every four weeks. That is the custom either laid down, or at all - events acquiesced in, by the company. That being so, we do not see why it should not be taken as the basis of computation in this case. The amount is a full working week's earnings fit- the ordinary or usual rate of pay for the week in which plaintiff was actually employed at the time of the accident. As already pointed out, that amount js ascertainable on the facts as stated in the case. The substantial question is whether plaintiff is entitled to have his compensation calcinated in accordance with paragraph (a) of section 7 (3) of the 1936 Act. In our judgment the proper answer is that plaintiff is so entitled."

Section 7, sub-section 3, of the 1936 Act provides that in the case of a mining contractor who under tho original Act is deemed to be a -worker, or of any person whose remuneration is fixed by reference to the amount of work done, his weekly earnings shall, for the purposes of the assessment of compensation, be deemed to be the largest of the amounts following:—(a) A full working-week's earnings (exclusive of any for overtime) at the ordinary rate of pay for the work in which the worker was employed at the time of the accident, notwithstanding that he may not have actually worked or the employment may not have actually continued for the full week; or (b) the amount that he would have received as a full week's earnings (exclusive of overtime) for the work in which he was employed at the time of the accident if he had then been employed at the ruling rate of wages payable for the same class of work in the same district; or (c) the basic rate of wages fixed for adult workers under the Industrial Conciliation and Arbitration Amendment Act, 1936, and in force' at the time of the accident. In the present case compensation was fixed on the basic wage of £3 16s a week as provided in paragraph (c) of the subsection, without prejudice to the right alleged by plaintiff to a higher . rate of compensation, and proceedings were begun in the Arbitration Court to establish his right to the higher rate.