BREACH OF AWARD.

Timaru Herald, Volume CXXV, Issue 18616, 11 July 1930, Page 13

BREACH OF AWARD.

PASTRYCOOK PROSECUTED. NOMINAL FINE IMPOSED. In the Magistrate’s Court at Timaru yesterday, before Mr C. R. Orr- ! Walker, S.M., Elizabeth Jenkins was charged with employing three employees in excess of the hours prescribed by Section 18 of the Factories Act, 1921-22. Mr Rolleston apeared for defendant, and pleaded guilty. The Inspector of Factories (Mr McKessar) stated tha.t on June 14 last, Mrs Jenkins asked for an extension of the ordinary hours for her factory. He could not agree. That afternoon, at 4.20 p.m., he called at the factory, and found quite a number of girls working, and at 6.20 p.m. there was still one girl working. The inspector said that one girl had worked 104 hours, another 94 hours, and another 9 hours. He pointed out that this was the third occasion this year that the defendant had committed Mr Rolleston said the facts were admitted, and it was true that overtime was worked, as it was also quite true that the Statute provided for overtime; and obviously there were certain businesses where it was impossible to regulate hours adequately. Defendant was put in the position of either having to break the law or of ruining her business. There was no intention on the part of defendant to defy the law or the inspector on this occasion. The Factories Act provided for overtime being worked, and the award provided for the payment of overtime. It was to be inferred that if overtime was worked when necessary, it was paid for. In this case, not only were the employees paid for overtime in accordance with the award,, but they were also granted the equivalent of the overtime worked in time off on the following working day without any reduction in pay, as a further compensation for the work done. The employees did not complain. They were asked, and were perfectly willing to work the extra time, and also to profit by the additional payment. Defendant did more than she was required by law to do in making up their overtime. It might be asked why this prosecution was brought. “I take it that the consent of the inspector should be obtained before overtime is worked,” said Mr Rolleston. “In this case, he was asked for permission, and refused to allow overtime to be worked, and the only ground for refusing was that it would be injurious to the health of the girls. I wish to point out in this case that there was no inquiry made so far as the girls were concerned, as to whether they were willing to work or whether working overtime would be injurious to their health; but the inspector, when he was applied to for permission to work overtime on the Saturday, said ‘No.’ Further, when representations were made to him by Mr Orwin, on behalf of Mrs Jenkins, the inspector said he would not grant it, and there was no use asking. The position on this Saturday morning was that Mrs Jenkins had to cater for Ballantyne’s Ball in the evening, and • while she would probably have arranged for this to be completed, there were a -host of other orders to be completed, and without overtime the defendant could not carry them out. When she applied for permission to work overtime, and received what amounted to a curt refusal, she scoured the town and tried to find additional help. She got two extra hands, and thought she would get through the work by four o’clock. In the afternoon she was informed by the forewoman that certain work had not been done, and which it was necessary to do. What was Mrs Jenkins to do in these circumstances? She had applied for permission to work her staff overtime, and this had been refused by the inspector on the ground that it would be injurious to the health of the women engaged. The inspector should not take up the attitude of simply stating: ‘I won’t grant a permit,’ without making inquiries. The Department has granted a registration certificate to this bakehouse, and could it be said that it would be injurious to the health of those girls if they were asked to work overtime in the special circumstances outlined? It would not be unreasonable that these girls should have been asked to work 11 hours, 1 hour and 24 hours respectively to meet this emergency. Mrs Jenkins had been told that they could not get through before four o’clock, and there was the difficulty to face that she had supper for 200 people on her hands to finish. This food would have been wasted unless the finishing touches were made. On the other hand, she had to face a prosecution under the Factories Act. I don’t think anyone could say, having done all she could to comply with the law, she was to blame for saying ‘We will have to risk it.’ She did not want to disappoint her customers, and she made it up to the girls by paying overtime, and also by giving time off.” Speaking of the bakehouse, Mr Rolleston said it was of the latest type and design. Continuing, he said that on the following Monday, the inspector, accompanied by a policeman in uniform, took statements from the staff concerning the facts which had been already admitted. It was upsetting for a lot of j'oung girls in their ’teens to be visited by a policeman in uniform as though they had done some horrible crime. It was a question whether employees should be asked to make statements to a constable. Another point that had to be considered was the fact that later, the inspector had written, asking those who worked overtime to show cause why they should not be prosecuted for having worked in excess of the hours prescribed by the award. The next step, counsel observed, would probably be that they would be prosecuted for working in excess of the hours stipulated in the award. The defendant had been anxious to work in harmony with the Department. He did not blame the inspectors. The Department might have stated that they must prosecute. In all the circumstances, Mr Rolleston suggested the Court might treat the case as being trivial, and not inflict a penalty. Statements Not Believed. Mr McKessar, in reply, stated that it had been held by the Department that 81 hours in a bakehouse on a concrete floor was quite sufficient without granting any permit for an extension of time. With respect to the matter of the statement taken from the defendant’s employees, Mr McKessar said he did this because statements had been made to him which he did not believe. ‘T took a constable with me,” said the inspector, “and my only reason was that I wanted corroboration of the statements made by the girls.” The Magistrate: “Can you do this?” Mr McKessar: “Yes.” The Magistrate: “Did you refuse to grant any extension on any consideration whatever?” Mr McKessar: “Yes. It is against the health of the girls, and we have no option but to refuse.” The Magistrate; “it requires a written application?” Mr McKessar: “Yes, Sir.” The Magistrate: “Did the defendant apply in writing for an extension?” Mr McKessar: “No, sir.” In giving judgment, the Magistrate said it appeared that the inspector is

bound whether he likes it or not to refuse permission for working overtime, if he is of opinion that it would be hurtful to the girls. In this case, the inspector was certainly of the opinion that an extension would be hurtful, and it was hardly to be supposed that it could be assumed that he was not honest in that opinion. He might be wrong in his opinion, but the fact that he held such an opinion prevented the issue of a permit. The defendant chose, on her own account, under the circumstances, to make a breach of the law. The circumstances were very trying, no doubt, but she had clearly broken the lav/. The position put before him, however, had

certainly thrown some new light on a subject which had previously been before the Court. He could not look upon this case as trivial, and meriting dismissal. But for the facts which had been placed before him in this case, he would have been bound to impose punishment of a substantial nature. In the circumstances, a nominal fine would be imposed. Defendant would be fined £l, with costs 16/-.