FLAXMILLERS’ AWARD.

Manawatu Herald, Volume XXXI, Issue 503, 4 November 1909, Page 3

FLAXMILLERS’ AWARD.

breach of preference

CLAUSE.

>v At the Magistrate’s Court yes- * terday the case which was adjourned from the last coutt day, in which Mr Culver, Inspector of Awards, proceeded against Abraham King, flaxmiller, of Foxtou, to recover the sum of ,£lO, as a penalty for a. breach of the preference clause of the Flaxmillers’ Award by employing a nonunionist, when a member of the Union was available, was continued. Mr Culver conducted the case ou behalf of the Department and Mr Moore appeared for the defendant. For the prosecution Mr Culver called Percy T. Robinson, secretary of the Union, who said chat he had interviewed Mr King about a month previous to his mill commencing work, and had asked him if he had engaged his scutchers. Mr King said he had not and witness told him there was a scutcher, a member of the Union, out of employment. Mr King said he would let witness know later oh. Subsequently he let the scutching to Baker, a member of the Union, and Baker engaged another man Morgan, who was not a member of the Union, but who had joined since. Witness said the usual custom in scutching sheds was ior all the scutchers to work as mates. If one ot the men left the remaining ones engaged another man. The wages were sometimes paid to one of the men to distribute to the others and sometimes it was paid to each one separately. George S. Whibley, president of the Union, said that he had told the Secretary to see Mr King in reference to scutching. Some days later the Secretary told him that Mr King had said he would let him know later. Just previous to scutching being commenced at

the mill, witness saw Mr King and he then told him that Baker and Morgan were going on. Witness corroborated the previous witness’ evidence in reference to the usual

custom in scutching sheds. , In reply to Mr Moore, witness said that Morgan had joined the with part of the money he received from his first pay, and had offered to pay the weekly contributions from the date on which he commenced work at Mr King’s mill, but this witness refused to accept because the rules did not say whether the Secretary could accept payments prior to date of joining. Richard H. Dalhousie gave similar evidence as the two previous witnesses in reference to the usual custom in regard to scutchers. Reaston Baker said he commenced scutching at Mr King’s mill on September 7th. When he had asked Mr King for the job he asked for the scutching contract. Mr King said “alright.” He understood that to mean he was

.to do the work and employ what assistance he required. The price • fixed was 28s per ton, the Award rate. Two days before work was commenced witness told Mr King that Morgan and Proctor were going to work with him. He said they would do. Witness received all monies due, and paid the other scutchers their share. Considered he was empowered to take on men and also to discharge them if necessary. He supposed Mr King also bad power to discharge the men if he wished. To Mr Moore: “If any complaint was made Mr King would speak to me about it.” Beyond that he had noting to do with the men employed by me. • The Magistrate said that would no doubt be in the same way in which an employer would speak to his foreman. There was no

suggestion that Mr King held 25 .per cent bt the money due for 31 days after the completion of the work. That would have to be done under a contract. By not doing so it was some evidence that he did not regard this as a contract. Mr Moore contended that no breach had been committed. When Baker employed Morgan he stipulated that he should join the Union. Morgan at the time did not have the money to pay the entrance fee but he had joined as soon as he had received his pay and had also offered to pay con- . tributions from the date on which he commenced work, but this was refused by the secretary ot the j ) Union. He contended that the award had thus been substantially complied with. If a non-unionist was to be debarred from obtaining employment because he did- not have sufficient money to pay the entrance fee to the Union it was most unjust. If the Magistrate held that a breach had been committed Mr Moore contended that Baker, not King, was responsible. King did not know that Morgan was to employed until after he V hnd been engaged. There was no ’relation of employment between Mr King and Morgan. If Mr King was bald responsible at all, it would be through Baker. In some cases the action of a servant did not bind the master. That was recognised by all the authorities in cases where the employee committed a breach of

a penal statute or award and he contended that this was a case of the kind. In any case he submitted that the relation between King and Baker was that of contractor and contractor, not employer and employee, as a contract had been arranged at a fixed price per ton, and a contract of this kind was expressly recognised by the award. The evidence he intended to call would show that Mr King had no right to interfere in any way with the men employed by Baker, and this was evidence of the existence of a contract between King and Baker, and King could not be held responsible for a breach committed by Baker in the na'lure of a breach of a penal statute, if there were any breach at all. This was the principle of law as between an employer and his employee —and it must be still more so as between one contractor and another. He called the defendant, Abraham King, who said that Baker had approached him in reference to a contract for scutching and he had told him he could have it and could employ whoever he liked. Witness paid Baker and he (Baker) had to pay his own men, with whom he (witness) had nothing whatever to do. He did not consider he was entitled. to issue instructions to Baker’s men. There was no stipulation as to hours to be worked. Witness did not know that Morgan was employed by Baker until just a day or so previous to his commencing work. Only Baker’s name appeared on his books, as he did not consider Morgan was his employee. In reply to Mr Culver, witness said he remembered Mr Culver coming to the mill in company with Constable Woods, and the reason his books were not made up was that the mill had just commenced working. Witness said he had never read the award, ashedid not think it was worth his while. He understood that if a man joined the Union within 14 days it was alright. Charles Morgan said he was employed by Baker to assist scutching. He advised him to join the Union, but witness said he did not have the money to pay the entrance fee but would do so as soon as he received his first pay. This he did, and he also offered to pay contributions from the date he commenced work at the mill, but this was refused by the Union.

The Magistrate said he could not look upon the arrangement as a contract. He should say that it was quite within a miller’s right to make a contract with one man for scutching throughout the season for a fixed price per ton, but the contract would have to be in writing. The present case came under the heading of piece work as provided for in the award. Mr King knew that Baker could not do the work himself and he was responsible for the award being carried out. A breach (not a serious one) had certainly been committed, and he was quite satisfied that Mr King did it without any intention of breaking the award. Judgment would be given for plaintiff for £l, with witnesses’ expenses 20s.