DEFECT IN ACT

Timaru Herald, Volume CXLI, Issue 20441, 11 June 1936, Page 5

DEFECT IN ACT

POINT RAISED BY MAGISTRATE WAGES BOOK IRREGULAR A defect in the Industrial Conciliation and Arbitration Act was brought to light in the Magistrate’s Court yesterday, by Mr C R.. Orr Walker, S.M., when it became apparent that it was possible for a person other than the actual employer to commit a breach of the Act and escape prosecution. At the Magistrate’s suggestion Mr G. McKessar (Inspector of Factories) agreed to draw the attention of the Labour Department to the matter. The point arose out of a case in which Mr McKessar sought a penalty of £5O from Margaret Day, proprietress of the Lido tearooms for failing to keep a time and wages book in a proper manner. Defendant was represented by Mr L. M. Inglis. “Intended To Deceive” Mr McKessar said the books were very improperly kept. An unfortunate aspect of the case was that the business was run under the name of Mrs Day, but her husband looked after the books and generally supervised the work. A careful examination of the books showed that the names of several employees working in the tearooms did not appear and that the rates of pay were considerably less than the employees were entitled to. The Court might be told that Mrs Day was not acquainted with what was going on, but the speaker could not agree with that. If she was not aware of all the facts she was cognisant of many of them. “My reasons for saying that are that when I went to the tearooms to get statements from the girls, Mrs Day left the kitchen and concealed one of the employees who was receiving considerably less than she should.” Day had made no statement. “The books were not only kept irregularly but were kept in a manner intended to deceive,” alleged Mr McKessar, adding that had it not |een for his own knowledge, the offence might not have been detected. It was one of the most serious cases he had had to bring before the Court and it was one which called for a substantial penalty..

Husband Solely Responsible Mr Inglis referred to a previous case in which two girls employed by Mrs Day had been underpaid, and on that occasion the Court had imposed penalties amounting to £4. The present case concerned the same two employees. Mrs Day had been unfit to conduct the business for a considerable period, and it was on account of her ill-health that Day had been carrying on. Day admitted that he was solely responsible for the entries in the book. Mr Inglis asked for a modification of the penalty in view of the state of defendant’s health and the fact that she was having a considerable struggle with the business in fact, it was doubtful whether she would be able to carry on. “The admission that her husband, who kept the books, was solely responsible for the incorrect entries makes a difference,” said the Magistrate. It was strange and a pity that he was not prosecuted himself. “Have you contemplated that?” he asked Mr McKessar.

Mr McKessar said it was Impossible to get at the husband, but in any case the penalties would fall upon him. Mr Inglis said that was not the case as Day had no means. Legal Position It would be a monstrous thing if no penalty could be inflicted in a case where the books were being kept in a misleading way or fraudulently, commented the Magistrate. The only person who could be guilty of a breach of an award was the actual party to It. Unless defendant was entirely out of touch with the business she could not set up that she was unaware of what was going on and the statement by Mr McKessar indicated that an attempt had been made to hide one of the girls. The appeal by counsel that defendant was suffering from nerves and prostration was a proper one, but the Court had to protect the employees and see that the award was carried out reasonably. “In fixing the penalty, I will take into account that most of the offences were committed by the husband who, in effect, was using his wife’s name to carry on the business,” said the Magistrate. If the case was one in which the blame could be attached entirely to defendant, he would make the penalty, if not the whole, a considerable part of the amount claimed. In view of the position of the business and defendant’s health he fixed the penalty at £7 10s, with costs.

Tire Magistrate suggested that the possibility of another party other than the actual employer being responsible for a breach should be brought to the notice of the authorities, and some provision made to bring in the person actually responsible. There seemed to be some defect in the Act. Mr McKessar undertook to bring the matter before the notice of his head office.