INDUSTRIAL LAW

Wanganui Chronicle, Volume 83, Issue 288, 6 December 1939, Page 2

INDUSTRIAL LAW

IMPORTANT DECISION NO RETROSPECTIVE RIGHT TO HOLIDAY A decision of importance to employers and workers alike was given by the Full Court in Wellington on Monday, when it upheld a judgment by a stipendiary magistrate in Wanganui, Mr. A. Coleman, to the effect that the Court of Arbitration had no power to grant retrospective right to workers for a week’s holiday on full pay before an award coming into force. The Court, which comprised the Chief Justice, Sir Michael Myers, Mr. Justice Blair, and Mr. Justice Johnson, dismissed an appeal by Gordon Hally Anderson, Wanganui, who sued through the inspector of awards against a judgment given in favour of appellant's employer, John Frederick Couchman, manager of the Vacuum Cleaning Company, Gonville, Wanganui, when Anderson claimed 14 6s in lieu of a week’s holiday. The statement of claim set out that Anderson had been employed b Couchman for 14 or 15 years, but his services had been dispensed with on August 13, 1938. Anderson had not been granted an annual holiday on full pay during the year before his dismissal. Couchman was charged with a breach of the award at Wanganui, but judgment was given in his favour. On September 5, 1939, when the judgment was delivered, counsel for Anderson applied for and was granted leave to appeal. The question the Full Court was asked to determine was whether the decision of the magistrate was right in point of law. Anderson had claimed to recover from Couchman the sum of £4 6s in lieu of a week s holiday. Mr. N. R. Bain, Wanganui, appeared for Anderson and Mr. J. F. B. Stevenson for Couchman. Mr. L. Aiderton, Auckland, watched proceedings in the interests of the New Zealand Woollen Mills’ Association. The case hinged on the interpretation of clause 6a and 6b of the Taranaki, Wellington. Canterbury. and Southland Cleaners. Caretakers and Lift Attendants' Award, 1938. Provision of Clause. Mr. Bain said that clause 6a provided for a week’s holiday on full pay being given to workers who had been in service for 12 months before the award coming into force, and clause 6b made provision for holidays for workers who had been in service for less than a year. There had been no award in the industry before the present one came into force and the question was whether clause 6a and clause 6b operated after the coming into force of the award, or whether they came into force before the award was framed. He held that the clauses were retrospective in their intention, and that, therefore, Anderson was entitled to a week's payment in lieu of holiday. Mr. Justice Blair: I'm rather interested in the academic question as to whether the Court of Arbitration can legislate retrospectively in regard to wages. Mr. Stevenson contended that the Court of Arbitration nad no jurisdiction to make retrospective provisions in awards. Mr. Justice Blair said that he understood that a week's holiday with pay meant as much as 2 per cent, to employers. * Mr. Stevenson said it was a serious question for employers, as five industries had had to pay out a total of ±25,000. An award must be regarded as a statutory contract between employers and workers, and must be interpreted as such. Appeal Dismissed. After hearing legal argument the Chief Justice said that the magistrate had dealt with the case under paragraph 6a. The point now to be determined came before the Court of Arbitration in 1921, when Mr. Justice Frazer presided over that Court. Mr. Justice Frazer had dealt with the subject in 1922, when he had stated a case for the Court of Appeal, wjich held that it had no jurisdiction to”determine the proceedings in the form in which it haa been presented. Several of the Judges then indicated what their views really were. Mr. Justice Ee.dman expressed himself different-

ly to what Mr. Justice Frazer had ruled. Mr. Justice Salmond had asked if the term of service should not date from the coming into force of the award. “It does seem to me,” proceeded the Chief Justice, “that the observations of these Judges were danger signals to the Court of Arbitration, but instead of the terms being simplified they have been accentuated, as in the case before us. The Court of Arbitration has to supply deficiencies, but all this Court can do is to give its true conception of the document which comes before it. I do not myself agree with the view that was taken in the earlier cases by the Court of Arbitration. It is significant that in July, 1922, Mi. Justice Frazer must have felt that interpretation was in considerable doubt. otheXvise why should he have stated a case for the Court of Appeal. In my opinion, although I think on different grounds, the actual judgment of the magistrate was right, and the appeal will be dismissed.” Mr. Justice Blair and Mr. Justice Johnston concurred with the Chief Justice that the appeal should be dismissed. When the Chief Justice mentioned the question of costs, Mr. Stevenson said that Anderson did not have to