ARBITRATION COURT.

Manawatu Herald, Volume XXXI, Issue 476, 4 September 1909, Page 3

ARBITRATION COURT.

MANAWATU FLAXMILLERS’

AWARD

AN INTERPRETATION

The full judgment of Mr Justice Sim in the case of the Inspector of Awards and the Union (Mr Cooper) v. Broad and Reeve (Mr Innes) is as follows:

This is an application for interpretation in connection with the Manawatu Flaxmillers’ award (Book of Awards, vol. VIII., p--405). Clause 4of that award fixes the minimum rates of pay for the several classes of workers employed in fiaxmills, including feeders, bench loaders, catchers, washers, sorters and shakers. Messrs Broad and Reeve, who are bound by the award, entered into a contract with four workers by which these workers agreed during the continuance of the agreement, viz., from the third day of May, 1909, to the 31st day of July, 1909, to do all the stripping at the “Kea” flaxmill, Oroua Bridge, at the rate of 3s B}4d per ton of green flax cut and used at the mill. The question is whether this agreement is valid, although under its provisions Lire contractors may earn less than the minimum wages prescribed by the award. The question was argued by counsel on behalf of the parties at Palmerston North, and it was agreed that although the Arbitration Court is not at present properly constituted I should give my opinion on the matter. In any case where it is alleged that a contract such as that now under consideration is in contravention of the provisions of an award two questions generally have to be determined, namely : (i) Does the contract in question express the real agreement arrived at by the parties, or is it only a device for concealing an agreement which is an infringement of an award? (2) If the contract expresses the real agreement between the parties, does it create between them the relation of master and servant, or that of employer and contractor?

In the present case it was not suggested that the written contract did not express the real agreement of the parties, and the only question is as to the effect of that contract. The term of the contract is from the 3rd day of May, 1909, to the 31st day of July, 1909, subject to the certain provisions as to termination and suspension. While the contract remains in operation the contractors have to perform all the work of stripping at the mill, which includes the work of bench loading, feeding, catching, shaking, washing, and sorting (Clause 4). The work has to be done in a thoroughly efficient manner and to the entire satisfaction of the employers or any person appointed by them in that behall. The con-t-actors may engage workmen to do the work (clause 3). They have to carry on the work without cessation during ordinary working hours on all working days, and must themselves be present at the work (clause 8). The contract price is 3s per ton. The contractors are entitled to receive progress payments once every fourteen days, equal to 75 per cent, of the work done, and the balance of 25 per cent, is to be retained in hand by the employer for 31 days after completion of contract (clause 6). The effect of the contract is, in my opinion, to make the relation between the parties that of employers and contractors. While the agreement remains in opera tion the contractors have the exclusive right to do all the stripping at the mill, and are bound to do all that work at the stipulated price. This seems to be inconsistent with the idea that they are merely pieceworkers. A pieceworker would not have any right to complain if any part of the work of stripping were given to any other worker. Here, if any of the work were given to any other worker, the contractors would be entitled to recover damages for breach of contract. It is true that the contractors are obliged to be present during the performance of the work, but they are not bound in terms to do it with their own hands, and they are free to do the work without any control on the part of the employers. If any dispute arose between the employers and contractors it could only be dealt with as a question of breach of contract, and not as a breach of contract of service.

Mr Cooper contended that the provisions of Clauses 8, 10, and 11 of the agreement were inconsistent with the view that the relation created was that of employer and contractor. Clause 8 does not, in terms, require the contractors to do the work themselves, but by imposing on them the duty of being present at the work it, in effect, makes it certain that they will do the work themselves. The provisions of Clause ii show also that the parties contemplated that the contractors would do the work themselves. That, however, is not conclusive on the subject. A man may enter into a contract to do a certain piece of work with his own hands without thereby making himself the servant of his employer. Thus, in a contract to paint a picture, it is contemplated by both parties that the artist is to paint the picture with his own hands, but he is none the less a contractor.

The provisions of Clause xo, giving the employers a right to suspend the operation of the agreement in certain circumstances, are just as consistent with the relation being that of employer and con-

tractor as that of master aiul servant. They, no doubt, make tin contract somewhat one-sided, bni ’ that circumstance does not assist in determing what the true relation is between the parties. It is certain that the parties to the agreement did not intend to create the relation of master and ; servant. The contractors are called contractors, and the agreement recites that they have agreed to execute certain contract work. It is not a case, therefore, of ascertaining from the various provisions of the agreement what the intention of the parties must have been. They have shown explicitly what their intention was, and effect should be given to that intention unless they have used language which makes it impossible to do so. It appears to me that they have not used any such language, and that the parties have created between themselves the relation they desired to establish, viz., that of employer and contractor. A number of cases were cited during the course of the argument, but it is not necessary to refer to these beyond saying that the conclusion at which I have arrived is justified by the decisions in Simmons v. Faulds, 17 T.L-R-, 352 ; Vamplew v. Parkgate Iron and Steel Co., (1903), 1 K. 8., 851 ; Dickson v. Talisman Consolidated Co., 5, Gaz. 1,. R., 258, and is in accordance with the view taken in the Scottish cases of McGregor v. Dansken, 1 Fraser, 536, and Haydon v. Dick, 5 Fraser, 150. A question was also submitted in connection with an agreement for the work of scutching at a flaxmill. That question is really answered by the opinion already given in connection with the agreement for stripping. If a flaxmill owner enters into a bona-fide contract with a contractor, by which the latter agrees to do all the work of scutching at a flaxmill during a definite period at a fixed price per ton on terms such as those set out in the printed form submitted by the Inspector, such an agreement would not create the relation of master and servant between the parties, and would not amount to a breach of award, although the rate to be paid per ton is less than that fixed by the award. An employer would not be entitled to insist on any workers working under the award signing such an agreement. The agreement when signed by the parties, to be of any avail, must be a bona-fide contract made by the parties. TRADES AND LABOUR COUNCIL NOT SATISFIED. Mr McLaren, M.P., brought under the notice of the Wellington Trades and Labour Council on Thursday night the decision of Mr Justice Sim in the flaxmillers’ case. He moved: “That the Council communicate with the Flaxmill Employees Union with the object of stating a case for the Higher Court.” This was carried unanimously.