OVERTIME PAYMENT

Chronicle (Levin), 17 December 1946, Page 3

OVERTIME PAYMENT

SUPREME COURT'S DECISION WOOLPACK WORKER'S CLAIM "The action is what is described in the statement of facts as a 'test' action, brought to determine whether a Farge number of. other workers, in a position similar to that of the plaintiff , are also entitled to recover these additional payments for the four and a-half years in question," stated Mr. JusCice Fair in a' judgment issued in Wellington in a case between Mary Teresa Wright, textile worker, of Foxton, and New Zealand Woolpack and Textiles, Ltd. The case, which was heard in the Supreme Court, Wellington, was one in, which Miss Wright claimed from the company extra payment calculated at the rate prescribed for ovcrtime, for all hours worksd by her in excess of 40 in each week, between December 31, 1940, and July 13, 1945. "During a certain part of that period," the judgment continued, "there were clauses made under section 3 of the Factories Amendmcnt Act, 1939, in the award in force, extending the hours of employmenfc at ordinary rates, from 40 to 44. But the plaintiff claims that the last valid order lapsed on December 31, 1940, and that the award made on September 11, 1942, was invalid, as being ultra vires the Arbitration Court's powers, and so was inoperative during ! its term to autliorise such an extension of hours." The judgment remarked that the award v/as for a term ended on [Auguot 14, 1943, and altliough it iremained in force by virtue of the i Industrial Conciiiation and Arbij tration Act untii April 1, 1945, the i clause authorising extended weekly . ; working hours lapsed on August i 14, 1943. It appeared that after i that date all work in excess of 40 I hours should have heen regarded as overtime, and so paid. The parties to the award had not realised this until a Supreme Court decision in another case in 1945, and both had considered the extension order operative during the currency of the award. It had been deciaed by the Court of Appeal that a claiih for unpaid overtime under the Factories Acz, where an award governed the linduotry, lay only in respect of the amount due within 1'2 months before the institution of the action. In the present case, the action was linstituted on October 9, 1945. Conjsequently the amount recoverable, [were1 the "award? vulid,"we>n,MKb'e fbr I the period from October 9, 1944, to I July 13, 1945. "That this amount is jdue and payable by the defendant lis now admitted," His Honour conj tinued. For the plaintiff, the judgment Iproceeded, it had been subhiitted 'that the limitation in question did ; hot apply to the claim, as the i award of September 14, 1942, was jmade without jurisdiction and was |void. It had been argued that the ! claim was made under the statute |and not the award. His Honour ' said that in the present case, the workers' assessors and the employer | had agreed before the conciiiation council on the terms of employment, and the agreement had been | forwarded to the Arbitration Court, which pronounced the award. After a survey of the legal pro- ! cesses affecting awards, His Honour continued: "I should add, too, that as the parties desired a decision, the court has decided the j question of law as requested by them, but this judgment is not to be taken as establishing the right of the parties to challenge the validity of judgment of a superiur j Court of Justice, such as the Arbi1 tration Court, in the course of an ! ordinary action between the partjies. Thcre are obvious objections to such a proeedure; but in view oi ! ihe facts that this aspect was not argued and tlio cjecision the court (has come to, it has not thought it necessary to rule on this question. In my opinion, the award of 1942 was, and continued, valid until the date of the new award made on July 13, 1945." His Honour remarked that in the present case the rates fixed for other than overtime were eonsiderably in excess of the minimum wage. It appeared that the exeess varied from 8 per cent. to a maximum of about 30 per cent. of the minimum. The wage was actualJ.y fixed by the award, but supplemented by agreement between the parties. "It follows," His Honour continued, "that the plaintifFs claims under this head are made under the award, and cannot be supported for a longer period than for tlie portion of the final 12 months — from October 9, 1944, to July 13, 1945." With reference to the plaintiff's claim for increased remuneration on the ' ground that the full amount requircd to be added as the first additional cost of livlng bonus was not included in the last adjustment of wages, His Honour said the increase allowed was upon the rates provided for in the awards." Those rates were the minimum rates. He added: "The plaintiff's claim on this ground, therefore, also fails, and judgment must be given for the defendant. The- questions of the amount for which judgment is to be entered, and of costs, are reserved." In a further judgment cn a case where Edgar Ronald Coley was the plaintiff, and New Zealand Woolpacks and Textiles, Ltd., the defendant, His Honour said the

plaintiff was employed aS;,a "pad-1 docker," and j/here was,„ an agreed statement of facts about the eonditions of his employment. His Honour continued : "The question as to whethbr'the plaintiff may be considered entitled to recover, in respect of additional payments of overtime, for the period for which he claims, which falls' within 12 months from October 9, 1945, depends on thd question whether he was employed in or about a factory within the meaning of section 3 of the Factories Amendment 'Act, 1936." It was admitted, said the judgment, that the plaintiff could not be described as 1 being' employed in a handicraft, and that it could not be contended that the drying area, the scene of employment, was adjacent to the factory. The sole question for consideration was whether the drying area could be considered a "place" within. ,the definition of "factory." His Honour thought the plaintiff must fail on this ground. Judgment would be given for the defendant, the question of costs being reserved.