AN OVERTIME CASE.

Star (Christchurch), Issue 8949, 7 June 1907, Page 4

AN OVERTIME CASE.

THE PAYMENT OF OVERSEERS.

AN IMPORTANT POINT RAISED.

A case of considerable importance to factory owners was partly heard in the i Supreme Court at Timaru yesterday. 1 R. C. Edwards, employed for two years and a half as head miller by the Timaru Flour Milling Company at £'o a week, sought to recover payment from the , company for 1598 hours overtime wcrk- '' od during hio engagement. Tho claim is for £203 under'the Factories Act, or, as an alternative, for £536 under an award of the Arbitration Court. i Mr 0. T. J. Alpevs appeared for plaintiff, and Mr S. G. Raymond for tha defendant. I in opening the case Mr Alpers (raid that plaintiff was claiming to be paid for some I.GOO hours of overtime worked by him for the defendant. It was j contended not that defendant had. c:.n- --' fcractcd to pay for .Tver time, but that there was a (statute which imposed on him the obligation to- pay for it. The point was not altogether novel, becausa a precisely similar claim, founded on the same section of the Factories Act had been made in the case Warren v M'Gavin. That claim had been defortcd on a side issue which did not aviso in the present case. In that ca*o Mr Justice Williams had spoken of the claim as a "startling one," but had exurest-cid no further opinion, on its .merits. The cmso of Recce v Baillio I dncp decided however, although not identical, was analogous; and since the decision in that case, a wages cUim founded on status apart from contract, could no longer be termed start- ! ling. The first cause of action depended upon certain clauses of the Factories Act of 1901. The Act limited the hours of working in factories to forty-eight. It provided in the casa of male workers for tho extension of the working hours b?yond forty-eight, subject to payment at the rata of time and a quarter. The same statute further enacted that. " every person employed in any capacity in a factory shall be paid the rat? of wages agreed upon," and that "such rate Khali in every c?.ss be irrespective of overtime." Penalties were provided for non-payment S3 that it was not permissible to " cor.tfract out " of the statute ; but the civil remedy of the workman w.as specifically saved. The second and alternative curse of action was bssed upon an award of the Arbitration

Court. That award when made "was not intended to apply to a person in the position of tho plaintiff — that of head miller. Whether by subsequent legislation .it had been so extended as bo apply to him would be matter for argument later. • If it did so apply, then, the award also made it obligatory to pay for overtime though on a somewhat more liberal scale. The Defendant Company carried on the business of millers in a mill situated in Timaru. Some time iri° September, 1903, the plaintiff hud been engaged by the company's manager, Mr Eiby, as head miller. The agreement was that he was to receive £5 per week for his services and no word was spc-ken. about overtime. He had continued in the company's employ till Slay 1906, a period of two years and eight months. For fame months after his appointment no overtime -duties had been required of him. But from the beginning of 1904 till some weeks before the employment terminated, the plaintiff worked overtime amounting im all to ' 1598' hours. For a greater part of the period the mill had been worked on ten hour shifts, and at other times on twelve hour shifts The plaintiff, as overseer, had been compelled to be present whenever the mill was working. Boys h;f.d to bring his dinner and often his breakfast to the mill, as his duties ■ usually began at 7 a.m. On two or three occasions tho pluntiff, who was breaking down under the. strain of long hours, had pretested to the manager, and the latter promised a fortnight's holiday on full pay. a promise never kept, and assured plaintiff that preeently the machinery would go better or the mill would not be worked at suoh high pressure. To the protests ag.iinst tho overtime the manager bad replied that plaintiff was " not under the award," and so there was no obligation to pay him overtime. The company pleaded that it was not aware the overtime was worked, by reason of th? omission of plaintiff to enter details of his overtime in the overtime book. The manager was the occapi?';, however, and he was the person obliged by statute to keep an overtime book. As a matter of fact no such "book had been kept, but plaintiff had shown in. the wages book the overtime hours of tho. other men. He had not enterel his own because the "occupier" had net instructed him to do so, and had, in fact, repeatedly tcld him that his overtime did not count. That the plaintiff's overtime had not been entered in any overtime book was the fault of the company itself. Plaintiff, however, was fortunately in. the position to prove specifically each hour of overtime that lie had worked, and also the particular work he had been engaged at. Shortly after entering the employ of the company he had found the manager an exacting man, and wishing to guard himself against any disputes as to the performance of his duty he began to keep a diary. This he had continued to write up very fully every dap h© was employed at tb» milL In

it he had entered particulars of work done, numbers of 6acks milled, the hours the mill was running, the names of the men engaged, and the hours they worked, and details of repairs effected. During the greater part of the two years and eight months he had entered each day the number of hours he himself worked. These entries had been made at a time when the plaintiff had no thought of bringing an action, and no knowledge or expectation that he would ever be paid for the overtime worked. Mr Raymond, for the defendant, argued that the nature of the employment had to be considered, that the head millers should be excepted from the operation of the clause of the Act. A subsidiary question was raised concerning the" way in which plaintiff had made out hi« list of hours worked, the items being in meet cases inferred from entries of work done, not from entries j of hours worked. ■ ; Two mill managers gave evidence v that their head millers were paid £5 a ' week with no overtime pay or deductions for hjolidays. The hearing was not concluded.