CLAIM BY CLERK FAILS

Southland Times, Issue 24106, 20 April 1940, Page 9

CLAIM BY CLERK FAILS

JUDGMENT GIVEN FOR COMPANY INTERESTING INDUSTRIAL CASE (United Press Association) WELLINGTON, April 19. That decisions by the Court of Arbitration to the effect that even slight employment on a weekly basis overrides all other considerations in other awards formed the basis of an Appeal Court case in which judgment was given today. Arthur Bruce Wilson, of Culverden, a clerk, had claimed from Dalgety and Co., Ltd., £ll3/4/6, representing the difference between his wage as a clerk from July 1938, to the end of 1939 and the wage he would have received under the Northern, Wellington, Westland, Canterbury, Otago and Southland Retail Grocers’ Assistants’ and Drivers’ Award, dated August 1938. When the case was heard on March 12 it was stated that the defendant company did not cater or supply the general public, apart from its own particular clients, and no invitation was held out to the public. Only a relatively small percentage of the retail business consisted of the supply of groceries to farmer clients.

The plaintiff’s status while in the employ of the defendant company was regarded by himself and the company as that of a clerk. Including his clerical work in connection with groceries, the percentage of time spent by him in dealing with groceries in proportion to the whole of his duty would have been between two and three per cent, working time. Judgments by the Full Court today agreed that Wilson was not entitled to succeed as he did not fall within the provisions of the above-mentioned award. Judgment was entered for the defendant company. The Chief Justice (Sir Michael Myers) in his judgment found that the plaintiff was a member of the Canterbury Stock and Station Agents Clerical Workers’ Industrial Association of Workers and was not a member of the New Zealand Federated Shop Assistants’ Industrial Union of Workers. In his judgment his Honour discussed the principle to be applied to resolve the difficulties which arise when a worker is a member of more than one union and affected by more than one award or industrial agreement. “But all that I have so far said, though it is sufficient to determine this case on its actual facts, would not solve the problem if the worker, in fact, were a member of the Grocers’ Assistants’ Union, as well as of the Clerical Workers’ Association,” said the judgment. “Some principle or test must then be applied to resolve the conflict arising from the existence of two unrelated awards or industrial agreements, or of one award and an unrelated industrial agreement. “SUBSTANTIAL EMPLOYMENT” “The only reasonable and satisfactory principle, or test, to be applied in such a case has always been, and still is recognized by the Court of Arbitration to be what is called the doctrine of ‘substantial employment’ and it is undisputed and indisputable that, if that is the correst test, the plaintiff cannot succeed inasmuch as his employment is overwhelmingly that of clerk, and comes under the Clerical Employees’ Industrial Agreement. It is not necessary to

refer to numerous decisions laying down and applying that test. It is sufficient to say that it has already been recognized as the existing, unaffected 1936 Act by the Court of Arbitration, whose awards must be assumed, therefore, (at least in the absence of express language to the contrary) to incorporate this doctrine of ‘substantial employment.’ ” His Honour said he had found the case most interesting and he believed it would prove a most important one.