LAW REPORTS.

Dominion, Volume 5, Issue 1390, 25 March 1912, Page 3

LAW REPORTS.

COURT OP ARBITRATION.

LE CREN APPEAL UPHELD. 1-NDUSTEIAL LEGISLATION CRITICISED. The sittings of tho Court of Arbitration were continued on Saturday. Mr. Justice Sim presided, and silting with him were .Messrs. W. Scott (employers' representative) and ,f. A.M'Cullough (employees' representative). Decision was delivered in the appeal case, I.e Cren v. the Wairarapa Farmers' Co-operative Association At tho hearing Mr. H. H.'Ostler, of the Crown Law Uhice, appeared for the appellant, mid .Mr. T. a. Wcston lor ino respondent. 'iiie appeal, based on a point of law, was from the decision of Dr. A. M-'Artlmr, S.AL, given at Wellington on beptember '$, 1911, dismissing an action in .which Lβ Creu claimed to recover from the W'ainirapn banners' Co-operative Association tho sum of jt'lo as a penalty for a breach by tho association ot clause i (a) of the Wellington Grocers' Award. The following wero the particulars' of tho breach alleged*in the claim:— "Tho.defendant, in each and every week during the period from April 7, 1911, to August 1!), 1911, employed Eric Roy Murphy (as a driver only) in excess of the weekly limit ot 171 hours, exclusive of tlie time required for necessary attendance upon horses, and meal hours, contrary to the provisions of section (I) (a) of the award." Upon facis admitted or proved at the hearing, the 'magistrate determined that no offence had been committed, and in referring to Section VI of the Industrial Conciliation and Arbitration Amendment Act, 190S, he remarked that ho interpreted it ;is saying that up to the expiration of ifti period all the provisions of the grocers' award wevo in force, but after tho expiration of its period and during its further subsistence it became modified by the Shops and Offices Act, which was tlie law then in force. This,' in his Worship's opinion, showed the necessity for getting a new award or securing the renewal of the old. The appellant gave notice of appeal against the decision ot the magistrate upon (he ground that the magistrate was wrong in Jaw in determining that clause i (a) of the said award is inconsistent with Section 6 of the Shops and Offices Act, 1903.

Test for Inconsistency. In delivering the judgment of the Court, his Honour said: "The award was made in March, 11)09, and (lie term fixed for the currency thereof expired on April 1, 1911. In the meantime the Legislature, by the Shops . and Ollices Amendment Act, 1910, had repealed Subsection •1 of Section G of the Shops and Offices Act, 1908. . The respondent contended that the effect of this legislation was to brine the case within the scope of Section 7-4 of the Industrial Conciliation and Arbitration Amendment Acjt, 190S, with the result that the provisions of the award must be treated as having been modified since April 7, 1911, in accordance with tlie Shops anil Otiiccs Act, 1908, as amended by tho Act of 1910. If tho award is to be treated as modified in this way, then the respondent would be entitled to work the driver, in question tip to the limit of hours fixed by tho Shops and Offices Act, 1908.

"Section 7-1 of the Industrial Conciliation and Arbitration Amendment Act, 1003, applies only if, nnd so far as, there is any inconsistency between the provisions of an award and the provisions of an Act passed after the making of such award. In determining whether there is any such inconsistency (lie test to be applied, in our opinion, is whether it is possible to obey tho directions of the award without infringing in any Way tho directions of tho statute. If it is possible, to do so, there is not any inconsistency. "The Magistrate Was Wrong." "Applying that test in the present: case it is clear that flwre is not any inconsistency between the award and tho statute. Section C of tho Act of l!) 08, which limits the hours of work for shop assistants, does not impose on employers the obligation of working their assistants up to flic prescribed limits. It merely makes it penal to work assistants beyond those limits. An award which stiU'further limits the hours of work is, therefore, not inconsistent in any --ay with this statutory provision. "In our opinion (he Magistrate was wroiiK in holding that tho award and Act -were inconsistent. Tho appeal is allowed, and the case is remitted to the Magistrate's Court to l:e dealt with there. Thn respondent is ordered to pay the appellant's costs of the appeal (£i 55.).

"Hasty and 111-Conceived Legislation." "Mr. Scott, whilo agreeing with the judgment of the Court as bmng strictly in accordanco with law, fools himself compelled la point out tho great injustice that will be indicted on account of th-s overlapping of the Shops and Oflices Act and the Industrial Conciliation and Arbitration Act. Under the award the hour? of drivers are i"!. hours per week; under the act they are . r i2 hours per week. Under, the award stable work is' unlimited; under tho Act it is restricted to one hour per day. Under the award overtime can be worked as required, provided overlime rates are paid; under tho Act overtime is restricted to 90 hours in tho year, besides which, before overtime can be worked, a permit has to );e obtained from the Inspector of Factories (au impossiblo condition). Under the award the work can be sproid over tho 24 hours with proper safeguards; under the Act work must cease at 6 p.m. with the few exceptions mentioned.

"It will thus be scon that in connection ' with the hours of work employers and workers are compelled in some cases to observe the hours proscribed by the award and in others the provisions of the Act, and that neither employer or worker is safe from prosecution. The judgment, in his opinion, will lead to no end of litigation and strife, due solely to hasty and ill-conceived legislation, and which "shows clearly the danger of Parliament passing legislation over-riding the awards of the 'Arbitration Court. LOSS OF A LIMB. INTERESTING COMPENSATION CLAIM. Compensation for the loss of a limb was the subject of an action heard by tho Court of Arbitration on Snlnrdav. The parties were Charles Edward Marclcfl, chocolate hand, of Wellington, plaintiff, and Mary Jane Jones, executrix of the will of the late Charles Henry Jones, of Wellington, defendant. ~M r; ,r v Levi a PPwred.for Mardell and Mr. P. J. O'Kegan for Mrs. .Tones. It was set out in the statement of claim that on May IG, I'JII, Mardoll was employed as a chocolate hand by C. H. Jones, trading as the Champion Company. In the course of his employment he met with an accident, in consequence of which ho was for nine months an inmate of the Wellington Hospital, where his left leg was amputated as a result of the injury. Jtardell's average earnings were less thiin £2 per week, and ho had received, from Jones, we-ekly payments of £1 from the date of tho accident up to September '.'2. He asked that this payment be continued, or that a lump sum he awarded. It appeared that prior to meeting with the accident, Mardell had sustained an injury to his hip, in consequence of which the second injury ivns more serious than would ordinarily have been tho case. The second schedule of the Workers' Compensation Act fixes the amount of compensation for loss of the lower part of tho limb at CO per cent, of total incapneity. Mrs, Jones admitted liability, and paid <£15:) 12s. into Court as cash value on a (iO per cent basis. In addition, Mardell had been paid .£lB in weekly payments during his period of total incapacity. Mr. Leyi ar;;ued that the caso was one of total incapacity, and contended that the Court should exclude the <sco»d schedule of the Act from consideration on the ground that in consequence of the old injury tho plluct of lh<; second was to totally incapacitate Mardoll. JJr. llnrdwicki . Smith gave evidence to the. effect that Mardell was totally unlit for manual labour if it vera necessary for him to stand. Mr. Lcvi then quoted English cases to show that where an injury is more serious by reason of a pre-exislint; disease or injury, compensation must lie paid accord-

Mr. OHcgan, who said Dial IhK- was tho first case of ils kind under Use schedule, maintained that tlio KiHMi cases did not apply, bocaii-e Ihe schedule was peculiar to (he \ew Zealand .\el. Iho object of tlm schedule , ras to faciliale settlement jiml relievo the Court of the task ol cnmimliiig the. redm-iion of oarniiiß power by reason of an injiirv. 'J'he capes quoted by Mr. Levi wen- nol'applicable, inoieover. as Uie workmen were suffering from disease, and had not bren injured by -.mother -.u-cident. The i>lar> intention of the schedule was to pay compensalion for specific, injuries mentioned, unless rhero was total incnpacily, in which caso tho Court mijjlit ignore the schedule and rely on Section f> of the Act. Decision was reserved.