THE PREFERENCE CLAUSE

Dominion, Volume 2, Issue 462, 22 March 1909, Page 5

THE PREFERENCE CLAUSE

WHEN DOES EMPLOYMENT CEASE? MR. HOGG QUOTES A DECISION. Further light upon ono aspect of preference to unionists has been discovered in a judgment issued by tho Arbitration Court in 1904. It will bo remembered that last Monday evening a deputation, of which Mr. D. Moriarty, secretary of tho Furniture Workers' Union, was chief spokesman, in the course of an interview with the Minister for Labour (Hon. A. W. Hogg), argued that in a case where non-unionists had been caused to stand down during a temporary slackness of work tho preference clause in tho award would operate against their reemployment. Tho Minister took tho opposite* view, and the discussion terminated with a suggestion by Mr. Wilfonl, M.P., that Mr. Moriarty, should put the matter in dispute into writing, and Mr. Hogg should then seek tho opinion of the Solicitor-General. Mr. Moriarty mado it clear during the interview that ho regarded the question as a vital ono for tho trades unions. M\{ Hogg informed a Dominion reporter on Saturday that ho had not heard again from Mr. Moriarty, but had written to him drawing his attention to tho judgment mentioned above, which, the Minister considers, disposes of the union's contention, by showing that tho point has already been decided by tho Court. The judgment, which is printed in tho "Journal of tho Department of Labour," March, 1004, states that tho respondent, a painter at Napier, was charged with abroach of award in employing non-union men, when equally competent union men were available. The prosecution relied upon a letter from tlic respondent, in which tho following passage occurred:—"These men are in my constant employment. Owing to slackness in trade, thoy stood down for a few days, but they wcro not discharged from my employment, and did not look for work from anybody else." Tho judgment states: "In many kind's of employment, when men are employed by tne hour, or oven by tho day, or by piecework, the relation of master and servant subsists while tho men arc earning no wages. If this were not so, then a man who worked for the'first four davs of the week for an employer, dropped tho" fifth and worked again, and was accidentally killed on the sixth, could, when his position had to be defined under the Workers' Compensation for Accidents Act, 1900, only be considered as having worked for a broken dav during that week. Tho decisions of tho Courts show, however, that such an interpretation in the earning of wages does not constitute a cessation of tho relation of master and servant. On tho contrary, more extensive breaks than that suggested have been considered to be mere suspensions of wage-earning. What ;vo think must be the true rule is laid down in Jones v. the Ocean Coal Comnanv Lim.ted (1899 2 Q.B 124) thus: 'ThT i"ai question is whether there has been anv break in that relation (i.e., that of master and servant), lo answer that question wo may put this tost: Are tho facts such that wo can assume that the workman, if called upon to work, will, do so, or that the employer, if asked to give employment, will allow the man to work? If there is a period of time when that could not be truly assumed, then tho relation of master and servant may have come to an end, and it is impossible to deal with any period of t.mo during which tho master and servant have respectively ceased to be willing; to givo and accept employment.' We do, not think that sucli unwillingness is winced by tho master merely suspending mi ting tho men to work through momentan" slackness, any more than it would b"ecd in tho case of a man by his notifying that ho had a cold and wished to remain $ homo for a day V« accordingly hold that the™ spondont had not ceased to continue thwo journeymen m his employment. Tho case s dismissed. Tho respondent is entitled to b s COSt 3.