APPEAL FAILS

Southland Times, Issue 23540, 21 June 1938, Page 8

APPEAL FAILS

ARBITRATION COURT’S JUDGMENT

DAIRY FACTORY CASE The Arbitration Court has dismissed an appeal by the Seaward Downs Dairy Factory Company, Limited, against the judgment of the Magistrate at Invercargill in an action in which Henry Moodie Hopper, inspector of awards, claimed from the company £lO as a penalty for a breach of the Otago and Southland Cheese and Butter Factory Employees’ Award. In the Magistrate’s Court it had been contended by the inspector of awards that the company failed to pay a worker a proportionate holiday allowance. Judgment was given for the plaintiff (the inspector), and the defendant gave notice of - appeal against the decision on a point of law. At the Arbitration Court hearing Mr S. M. Macalister appeared for the appellant, the Seaward Downs Dairy Factory Company, and Mr G. F. Grieve, of Wellington, for the respondent, Eenry Moodie Hopper. The question to be determined by the Court was whether the decision of the Magistrate was right in the matter of law. Mr Macalister said that a’l of the awards provided for a seven-day week. The holiday pay was given in consideration of that, but when the week was limited to six days the need for such holiday pay was gone. COURT’S JUDGMENT “It is common ground that the award of which a breach is alleged was in force when the employee concerned was employed,” states the Court’s judgment. “The real question in issue is whether clause nine thereof had been repealed by implication, as Mr Macalister maintains, by section 4 (1) of the Factories Amendment Act, 1936, or whether the combined effect of that section and of the order of this Court, made on August 22, 1936, was to repeal the clause.

“Notwithstanding the searching and exhaustive argument we have heard from Mr Machlister, we are satisfied that the entire awartf was in full operation brought out the period of its currency. Doubtless, it is correct to say that one of the original reasons for conceding the holiday on full pay was the seven-day working week, but though such an argument would be quite relevant in proceedings for a new award or in negotiations for an industrial agreement, it does not follow that the effect of section 4 (1) of the Factories Amendment Act, 1936, was in any way to amend or modify the award by implication. Consideration of the scheme of the Industrial Conciliation and Arbitration Act, 1925, in particular of section 89, shows that its purpose is to ordain everything 1 as explicitly as possible. The Act has now been in operation for 44 years, and during that long period there is no recorded case that would justify the conclusion that an award may contain anything not expressly set out therein. It is equilly clear that no implied amendment of the award followed the order of this Court by which the weekly hours were prescribed. “It has been settled by decision of this Court, in fact, that in an application to amend an award or agreement by reducing the working-hours to 40 a week, section 21 of the Industrial Conciliation and Arbitration Amendment Act, 1936, confers no jurisdiction to make any consequential amendment in the matter of holidays. Since this Court then has no jurisdiction deliberately to amend the holiday provisions of an award .or industrial agreement, it must follow that it cannot do so incidentally or by implication. Accordingly, we are satisfied that the award, including, of course, clause 9, was valid and in full force throughout, and hence that a breach of award has been proved. The appeal, therefore, is dismissed.”