SUPREME COURT

Dominion, Volume 11, Issue 124, 12 February 1918, Page 11

SUPREME COURT

A MAGISTRATE'S JUDGMENT UPSET LABOUR DEPARTMENT CASE The Chief Justice (Sir Robert Stout) presided at a sitting of the Supreme Court in Banco j'estorday, and heard the appeal of Bing, Harris and Co., Ltd., against a judgment of Mr. S. E. M'Carthy, g.M. The case had a special bearing on the employment of a head storeman or packer, wiio also undertook the duties of entry clerk. Bing, Harris and Co., Ltd., -were proceeded against by. the Inspector of Awards (Mr. G. H. "Lightfoot) for failing to keep a lvages and overtime book as required by Sectioii 58 of the Industrial Conciliation and Arbitration Act, 1908. It was shown in evidence that tho firm did keep such a book, but the name of Peter Watt, an employee, did not appear in it. The Magistrate in his judgment said the facts wero that tho defendant company employed n man in their dispatching and packing department, and it mattered little if this employee was termed manager or foreman of tho department. His duty was to supervise the branch, keep the accounts, keep the wages and time book, to assist -whenever necessary in any department of the particular branch, and to -work overtime whenever any of the other were so doing. Watt's duties vrere confined to the packing branch. He received more than the award rate of wages, and was haul monthly on a yearly basis. When Watt, was absent from duty his place was filled .by a member of the clerical branch. His main duties consisted of supervising, combined with clerical work. The 'company contended that Watt -was not a worker within the scope of award, arid that he was manager of the particular branch where he. : was employed.' With this'contention ho. did not agree,, and held that Watt was a member of. the packing, staff;.irrespective, of what he was called. The mere fact that portion of the man's time was occupied in supervising and. with clerical work was immaterial, as were the facts that he was called manager and paid more.than'the minimum rate of wage provided for in tlie storemon's and packers' award. Hie defendant company had failed to keep a record in-the wages and overtime book of the wages-paid to and overtime worked by the foreman or overseer or their packing branch. The book not having been kept within the meaning of the Act, the- defendant, company must be convicted. ••-."■' Against this -judgment Bing', Harris and Co., Ltd., appealed... Mr. A. W. Blair appeared for Bins, Harris and C0.,.-Ltd., and Mr. P. S. K. Macassey appeared for' the Inspector of Awards... . • ' . After hearing -argument His Honour held that tho judgment could not stand. .His Honour;said that the man had been doing, the. same kind of worlc sinco 1890. -He : -,was ..never entered, as a wages 'man , ,- - and the knowledge of this'must.''Jiave-'boon known to the others. This had been going on for years, and-when the man was retiring from the firm then this charge was brought against tlie firm', that'the mans name should have Imen entered in tho wages" book.'. His Honour, then dealt with tho definition of a storeman; and said-tho: award applied to. those substantially employed as a stoTcmaii or packer. This man's work was to supervise the department, .to keep the accounts, to enter goods, etc.. His work was supervising' the work of others, and. tho.'Jtiigistra'to admitted this in his judgment.. His Honour held that thp judgment could not stand. The appenl was"allowed w.ith £5 ss. costs. ; : JHE : HEA|INGOF : A^O? The Tβ Aro House Drapery Company, Limited, ■ appealed against a decision 'Of .Mr: S.i E. M'Carthy, S.M., in the case in which' the 'Inspector of Factories (Mr. G.. H. Lightfoot) proreeded against the-company for failing to provide suitable heating appliances in their shop in Cuba Street. ■ In his judgment the.Magistrate 'said that the Act. provided for suitable shop-heating appliances to the satisfaction of the inupeotor. In the defendant company's shop there were erhpjoyed all the year round a number of assistants, male and female, whose duties wero mostly of a sedentary, character. Unless the premises were artificially heated the assistants,- especially those working in parts of the shop, would suffer considerable, discomfort, morn especially cold. f.eet.. . The inspector drew tho attention of tlie manager of tho defendont company to the lack of heating appliances, and on the same' day the secretary of the company wrote to the labour.-Department requesting some indication as to what tho .Department required. The Department did not recommend any particular kind of heating apparatus, so long'as a minimum I of 60 degrees, of heat was maintained, but mentioned.a certain system. The company did not instal. the system, and its'only method of heating was by the use of/ordinary gas jets, and these did not prove tcfßcient for the purposo, the temperature ranging from 58 to .62 degrees. The defendant company ■was ordered to provide suitable heating appliances 'to tho satisfaction of the. Inspector of Factories, such appliaiic*;s to ho installed not later than April 30, 1918. No fine was imposed. The' company represented by_ Mr. A. W.'Blair, appealed against this decision. Mr. P. S. K. Macassey appeared for the Inspector of Factories. Mr. : Blair said the case was important. The • company did not appeal with the object of avoiding their responsibility to 'their employoes, but to ascertain their position in this matter. He explained that during the winter mpntlis tho gas jets wero lit at 8 a.m., arid the atmosphere became so heated that about 11 a.m. they had to bo turned out.

His Honour remarked that this .was perhaps not. a desirable method of securing tho required heat. Parliament had said that tho premises wero.to be heated' to ■ tho satisfaction of the Inspector of Factories. Tho inspector, guided by tho Health Department, hoi dthat 60 degrees of heat was necessary; . .Mr. Blnir said the company considered that the inspector's_ opinion wiis based on ii wrong principle. It had been admitted that the temperature was never considered from the point o: health, but on the point of comfort. . His .Honour replied that tho law had. left tlie question of temperaturo to the discretion of the inspector. If the company ' wished to cpmbnt this they should have called export opinion. It- was too late to do this now, however. It should have been done in. 6the Lower Court. . .

In giving judgniont, His Honour said: "I have considered this case and looked.into some authorities, and they bear the impression I had (luring the argument.' It was quite clear from the case that the heating arrangements had to be provided to the satisfaction of the inspector, and if thq inspector said that ho required a minimum of CO degrees that could not bo interfered with unless it could be shown that ■the inspector had . acted improperly. .The onus was on the defendant company to prove that, tho inspector had acted improperly . and without regard to the requirements of the law. That onus had not been discharged. Tt was clear that the inspector was within bis rights, .and had done nothing infixing'the temperature. . ■ . I'hfi appeal 'was -'dismissed with costs £5 ~ps. . , .V/. '. '.:. . Fur Chronic ciicet Complaints, Wood's Great Pepporwlnt Cure. ,