AWARD OR ACT ?

New Zealand Times, Volume XXXIII, Issue 7916, 27 September 1911, Page 1

AWARD OR ACT ?

DRIVERS’ HOURS CLAIM FOR ALLEGED BREACH FAILS. IMPORTANT JUDGMENT. Dr. A.. McArthur, S.M., delivertvl his reserved judgment at the Magistrate’s Court yesterday in tho case in which the Inspector of Awards (Mr E. A. Lo Cren) claimed to recover from tho Wdirarapa Farmers' Co-operative Association, Ltd., .£lO as a penaUy for a breach of tho Wellington grocers' award of March 22nd, 1909. It was alleged by the plaintiff that the defendants in each and every week during the. period from April 7th, 1911, to August 19th, 1911, employed Eric Roy Murphy (as a driver only) in excess of tho weekly limit of 47£ hours, exclusive of the time required for necessary attendance upon horses, contrary to tho provision of section 4 (a) of the award.

His Worship said that section 4 (a) of tho -award was as follows:—“Where drivers are employed as drivers only, the hours of work shall be 47£ per week, exclusive of the time required for necessary attendance upon horses and meal hours." •To his Worship this appeared clearly to indicate that during the currency of the award the drivers' hours were confined to 47-j per week, and outside of those hours he must attend upon .his horses and take his meals. This, in his opinion, was borne out by section 4 (b), which read If the person employed in driving also works as an assistant, then his week's work shall not exceed 52 hours a week. His hours shall bo so arranged as to enable him, if required to do so, to give tho necessary attendance .to his horse, or horses."

“All the above applies," said Dr. McArthur, “ during 1 tho currency of tho award. ’* The award continued in force until April 7th, 1911, and no new award had been made since. Since that time tho defendants nad employed a driver only, for a, period exceeding the 4V'I hours per week, and the department was now suing for a penalty. FACTiJ ADMITTED. The facts were admitted, and showed that tho driver had been engaged 51 hours in eacn week at driving, mat being three and a half hours in excess of tne 471 hours per week. It was contended by the department that tho defendants camo under tho Chop's and Offices Act and tbe provisions (.where not inconsistent with the statute) of tho Wellington grocers' award. It was shown that subsection 4 of section G of the Shojis and Offices Act, 1908, making tho section subject to tho provisions of an award of tho Arbitration Court was repealed by the amending Act of December 3rd, 1910. The grocers' award was then current, and by virtue of section 74 of the Industrial Conciliation and Arbitration Amendment Act, 1908, its provisions overruled section 6 of tho Shops Act until the expiration of Its currency on April 7th, 1911. From that date it was contended by the department that the Hours of grocers* drivers where employed as drivers only—must bo subject to clause 4 (a) of the grocers* award, to employment at driving, and in conjunc-

tion with section 50 of tho Shops and Offices Act, 1903. as amended by the Amendment Act of 1910, to the work performed and necessary attendance to horses, the driving not to exceed 47J hours a week. Counsel for tho defence pointed out that the scheme of hours and conditions of labour for grocers* drivers as laid down in tho Shops and Offices Act, 1908, was different from that laid down in the award. His Worship

could not deny that the Act and the award _ varied in many points such as definitions, time for attendance upon horses, hours for ordinary work, and overtime. Counsel for the defence submitted that it was not possible to divide up the various provisions of tho scheme of work laid down by the Act and that laid down by the award and to take tho special conditions in the scheme of woi*k of tho Act and of the award respectively which we"-- iiost favourable to the workman, af eject those that were less favourable."'"' By doing so a scheme of work was obtained which was not that laid down by tho Act and not that laid down by the award, but one which was a compound of both. If the scheme laid down by the Act was different from that laid down in the award, then counsel contended that the depart- ; ment was bound by that laid down by the Act, but it must bo adopted as a whole. His 'Worship hero took it that counsel for the defence was speaking of an award whoso period for which it was made had expired and there was no new award made. AWABD MODIFIED. Section 71 (1) of tho Industrial Conciliation and Arbitration Amendment Act, 1908. provided “ Tho provisions of an award or industrial agreement shad continue in force until the expiration of tho period for which it was made, not-' withstanding that before such expiration any provision inconsistent with the award or industrial agreement was made by any Act passed after the commencement of this Act, unless in that Act the contrary is expressly provided; (2) on tho. expiration of the said period ; the award or industrial agreement shall, during its further subsistence, bo deemed to be modified with the ' law then in force." Applying this section to the question in hand, his "Worship interpreted it as saying that up to the expiration of its period all the provisions of tho grocers’ award were in force, but after the expiration of its period and during its further subsistence it became modified by tho. Shops and Offices Act, which was the law then in force. This* in his Worship’s opinion, showed the necessity for getting* a new award or securing the renewal of the old.

" Such being my opinion,” said his Worship, “I can only, after tho most careful consideration, give judgment for tho defendants.” Costs <£l Is wore allowed.

At the hearing Mr T. P. Weston represented the defendants.