SACRIFICED RIGHTS

Sun (Auckland), Volume 1, Issue 84, 30 June 1927, Page 3

SACRIFICED RIGHTS

ADVOCATE’S MISTAKE SHOP ASSISTANTS’ AWARD REFERRED BACK TO COUNCIL Through a misconception, the employers’ advocate at the Conciliation Council, which considered, the Dominion retail shop assistants’ dispute, sacrificed the right to the 15 minutes’ grace and to the late night on Christmas Eve and New Year’s Eve. The Arbitration Court has now referred the dispute back to the Conciliation Council. “In the present case it would he unfair to hold some thousands of employers to a provision agreed to by their advocate under a misconception of the actual position.” says Mr. Justice Frazer in his memorandum, “and it would be equally unfair to alter the clause as requested by them without giving the workers an opportunity of reconsidering the provisions to which their advocate said he would not have agreed but for the concession made to him regarding the hours of work clause. POSITION EXPLAINED “The recommendation of the Conciliation Council for the settlement of this dispute contained a clause defining the daily hours of work of shop assistants. It made no reference to the statutory extension of the daily hours by not more than 15 minutes, and it made no reference to the statutory provision enabling shop assistants to be employed until 10 p.m. on the days observed as Christmas Eve and New Year’s Eve. The effect of this clause as it stood in the recommendation was to make the payment of overtime rates compulsory in each of these cases, whereas the Shops and Offices Act does not require overtime rates to be paid in such cases unless a total of 48 hour’ work for the week is thereby exceeded. “The employers’ advocate had submitted to the Conciliation Council a clause somewhat similarly worded, but containing an introductory passage which made the provisions of the clause subject to the provisions of the Shops and Offices Act. The workers’ advocate opposed all reference to the Shops <\d Offices Act, and after some discussion the employers’ advocate accepted the clause as it now appears in the recommendation. He did not realise at the time that he thereby sacrificed the right to the 15 minutes’ grace and to the late night on Christmas Eve and New Year’s Eve, nor was his attention drawn to the fact by the workers’ advocate.” “MADE AN ERROR”

“When the assessors met the following morning to sign the completed recommendation of the Conciliation Council, the employers’ advocate stated that he had made an error, and desired to have provi’sion made for the 15 minutes’ extension and for the late nights, but the workers’ advocate declined to reopen the matter. The recommendation was then signed, the employers’ advocate reserving the right to apply to the court to reopen the matter.

“When the dispute came before *he court the employers’ advocate renewed his application, which was opposed by the workers’ advocate on the ground that he had agreed to certain other provisions in the recommendation of the Conciliation Council, to which he would not have agreed hut for the concession made to him regarding the hours of work clause.

“Legally, of course, the recommendation of the Conciliation

Council is not binding on the court, but the practice of the court is not to depart from a recommendation unless on very good grounds. “The proper course to follow in such a case is to send the dispute back to the Conciliation Council, with an intimation that all matters in issue may be reopened. In order to save time, the court is prepared to deal with the dispute after the Conciliation Council has made a fresh recommendation, without a further hearing, if the parties agree to submit their views in writing. a ... “Mr. Monteith does not agree with the decision of the majority of the court. He is of the opinion that the uniem, in making an agreement on the hours of work clause, has prejudiced its position by disclosing what it was prepared to agree upon, and that it may suffer by reason of the dispute being referred back to the Conciliation Council, through no fault of its own.