PAYMENT FOR HOLIDAYS

Southland Times, Issue 23378, 9 December 1937, Page 7

PAYMENT FOR HOLIDAYS

ARBITRATION COURT’S JUDGMENT DECISION BY MAGISTRATE UPHELD A judgment by the Arbitration Court, upholding the decision of Mr J. H. Luxford, S.M., makes it clear that under the Factories Act Christmas Day, Boxing Day and New Year’s Day must be paid for in addition to the ordinary wages, provided that a worker has been employed at any time during the fortnight ending on the day on which the holiday occurs.

The case was an appeal by Cathie and Sons Ltd., of Wellington, clothing manufacturers, from a decision against them under the Northern (females only), Wellington, Canterbury and Otago and Southland Clothing Trades Employees award. The judgment of Mr Justice O Regan, was:— , , . . “This is an appeal from the decision of the Stipendiary Magistrate at Wellington, delivered on the first day of June 1937. The appellant company, admittedly a party to the award, dated September 17, 1936, was convicted of a breach of the award in that it failed to pay an employee an ordinary day s wage for Boxing Day, December 26, 1936, in contravention of Clause 12, (a) of the award.” After reviewing the admitted facts the judgment continued: “The Magistrate held that a breach of award had been committed in that the combined effect of Clause 12 (a) and the relevant provisions of the Factories Act and its amendments was to entitle an employee to the payment of wages for Boxing Day notwithstanding that he had been paid full wages for the week ending Christmas Day. He held further that the Department is entitled to succeed on another ground, namely, that 40 hours’ work had not been completed during the week in question and that the employer could lawfully have required work on the morning of Saturday December 26, had it not been Boxing Day. Accordingly he convicted the company, but the case being a test, he ordered payment of costs only. From his decision the company has now appealed. “The provisions of Section 35 of the Factories Act, 1921-22, as amended by Section 13 of the Factories Amendment Act, 1936, are:— Except as hereinafter provided, the occupant of a factory shall allow to every person employed in the factory the following holidays, that is to say: A whole holiday on every Christmas Day, Boxing Day, New Year’s Day, Good Friday, Easter Monday, Anzac Day, Labour Day, and the birthday of the reigning Sovereign. EMPLOYERS’ OBLIGATIONS “Section 14 of the Factories Amendment Act, 1936, makes obligatory the payment of wages for each whole holiday ‘at the same rate as for ordinary working-days,’ and sub-section 2 provides that such wages shall be paid to all persons who have been employed in the factory, in the case of Christmas Day, Boxing Day, New Year’s Day, Good Friday, or Easter Monday, at any time during the fortnight ending on the day on which the holiday occurs, and in the case of any other holiday, payment shall be made to any person who has been employed at least four days during the week ending on the day on which the holiday occurs. Clause 12 (a) of the award reads: — The following shall be observed as holidays and shall be paid for at the same rate as ordinary working-days: Christmas Day, Boxing Day, New Year’s Day, Good Friday, Easter Monday, Labour Day, Anzac Day, and the Sovereign’s birthday. “For the appellant company, Mr Stevenson has submitted a very able argument to the effect that wages are not payable for a holiday unless it falls on a working-day—in other words, that where a holiday occurs on a workingday in any week, the worker nevertheless must be paid wages for that day, but where the holiday falls on a non-working-day, other than Sunday, no wages are payable therefore, as the worker has received all that was due him, namely, a full week’s wages. He pointed out that Sections 20 and 21 of the Industrial Conciliation and Arbitration Amendment Act, 1936, require the Court to fix the working hours at not more than 40 a week (unless it is impracticable to carry on the industry efficiently) and that Section 22 provides that the Court shall endeavour so to arrange the daily working hours so that no part of the working period falls on a Saturday. It was submitted that, inasmuch as the appellant company worked from Monday to Friday inclusive. Saturday was not an ordinary workingday and that hence a holiday falling on Saturday need not be paid for. Such being the purport and effect of the relevant legislation, Mr Stevenson argued that, in virtue of Section 19 of the Factories Amendment Act, 1936, it constituted in itself a complete code for the protection of employees and that if* the provisions of the award went further, they were ultra vires the jurisdiction conferred on this Court by the Industrial Conciliation and Arbitration Act, 1925. He reminded the Court further than any doubt or ambiguity in the Statutory provisions or in the award should be resolved in favour of the appellant and in conformity with the intention of the legislature. “The Court is satisfied that neither in the relevant legislation nor in the award is there any ambiguity. Sup • posing that there were no award in existence, it is clear that Boxing Day would have to be paid for in virtue of i the provisions quoted of the Factories Act and its amendments. Clause 12 (a) of the award in effect repeats those provisions. It is true that the actual wording is different, in that Section 35 ordains that the occupier of a factory ‘shall allow a holiday’ while Clause 12 (a) requires that certain days ‘shall be observed as holidays.’ The meaning, however, is the same in each case, and so, in the Court’s opinion, the clause does no more than repeat the statutory provisions. Assuming that it goes further, however, it is well settled that, although an award cannot confer rights inferior to those prescribed by Statute, it may confer greater rights. For example, Section 166 of the Mining Act, 1926, requires that not less than time and a-half shall be paid for all work done in or about a mine on Sundays and holidays. Nevertheless, it is competent for this Court to prescribe by award that double time shall be paid in respect of such work. Accordingly the Court holds that the Magistrate’s decision was correct—that the provisions of the award and the Factories Act and its amendments are mandatory and entitle workers to payment for any of the prescribed holidays, irrespective of the hours they have worked in any week prior to the holiday. Accordingly the appeal is dismissed.

“Doubtless this result was not within the contemplation of the legislature or of the parties to the award. The Court, however, is not free to deviate from the meaning of the language employed.”