THE FLAXMILLERS AWARD

Manawatu Herald, Volume XXXII, Issue 913, 3 November 1910, Page 2

THE FLAXMILLERS AWARD

AN IMPORTANT JUDGMENT. PIECE-WORKER CAN WORK WHEN HE LIKES. BUT ALL OTHERS COVERED BY AWARD MUST CEASE WORK AT i p.m. ON SATURDAYS. At the Magistrate’s Court yesterday Mr A. D. Thomson S.M., delivered his reserved judgment in the case Manawatu Flaxmills Employees’ Union v. C. Lennox, argument of which had been heard at the last sitting of the Court. The following is the full judgment : The facts in this case are not in dispute. The only question is whether they constitute a breach of the Award. It is admitted : (i) That on Saturday, roth September, 1910, after t p.m., certain of the defendant’s employees (named) did work at their ordinary occupations of flaxcutting and tramming. (2) That the said employees were "pieceworkers” and were, under the Award, entitled to be employed as such. (3) That the defendant was not a party named in the Award, but has, since the Award was made, taken a contract from Messrs Coley and Bock to cut and deliver flax to their flaxmill, and in such contract it is stipulated that the Award shall be complied with. The plaintiff union contends that the meaning of the Award is that all work on Saturdays must cease at r p.m,, and in support of the claim that pieceworkers are included relies on the case the Poverty Bay Freezing Works Union v. Nelson Bros., reported in Vol. VI. of Award Cases at p. 238. Three defences are set up: (1) That the defendant is not a party to the Award and not bound by it, his contract being only one to cut and deliver flax. (2) That even if he is, Clause I. does not apply to "pieceworkers” and relies on Marks case Vol. IX p. 669 ; and (3) That in any case Saturday afternoon work is not absolutely forbidden but is in the same category as holiday work, that is, allowable on overtime rates being paid. The Clauses of the Award in question are Nos. r and 13. Clause 1. (a). Except when otherwise expressly prescribed the week’s work shall not exceed 48 hours, (b). Each employer shall be entitled to arrange such hours of work according to the exigencies of his particular business and such hours may be worked in shifts, either by day or night shifts, but so that in any event work shall cease not later than 1 p.m. on Saturday. Clause (13). Except as regards flaxcutting, firewood cutting, tramming, tramlayiug, paddockiug and scutching, no piecework shall be allowed, but employers may have all or any part of their work done by contract, and employers shall stipulate that contractors who employ any workers shall observe the provisions of this Award so far as the same shall be applicable to such workers. As to the first defence, I am of opinion that the defendant is a party to the Award by virtue of Section 90 Sub-Section 3 of the Act of 1908 which is as follows : The Award, by force of this Act, shall extend to and bind as subsequent party thereto every Trade Union, Industrial Union, Industrial Association or employer, who, not being an original party thereto, is at any time whilst the Award is in force connected with or engaged in the industry to which the Award applies within the industrial district to which the Award relates. Even if the defendant may be held not to be “engaged in” the industry of flaxmilling, it seems to me impossible to say he is not "connected with” that industry. His contract is to cut and deliver green fibre for the express purpose of being milled. In my opinion any one who takes a contract to perform, at any rate a substantial part of the work that is involved in flaxmilling, such as cutting and delivering the green fibre, or paddocking, or scutching, is so connected with the industry as to make him a party to the Award. Cases which were held not within an exactly similar section are : Auckland Carpenters’ Union v. Col. Sugar Co., Vol. 4, p. 122, and Auckland Builders’ and Contractors’ Union v. Hannan, Vol. V, p. iQ4, and 7 Gaz. Rep. 101, but in them the circumstances were quite different. As to the third defence, I am of opinion that work after 1 p.m. on Saturday by the workers to whom Clause I of the Award applies, is absolutely prohibited. The Arbitration Court has so interpreted similar clauses in other Awards. See The Christchurch Aerated Water Workers’ Award (interpretation) Vol. 9, p. 625. Clause 2 of that Award states that the carters’ hours were from S to 5, and that Saturday was to be observed as a holiday. Clause 5 provides that time worked beyond the hours agreed to in Clause 2 should be compensated for by time off or paid at the rate of time and a half, this to include work done on holidays, The question put to the Court was; Can employers employ carters on Saturdays and compensate them as in Clause 5 ? Answer : No. Clause 5 applies only to the hours referred to in Clause 2. Again, in Inspector of Awards v. Denhard, vol. XI., p. 97, a case under the Wellington Bakers’ Award. Clause 9 of the Award, dealing with overtime, said; "No work shall be done after xo p.m., except on hot cross bun night,” Work was done after 10 p.m., and paid for at overtime rates. The Magistrate held there was no breach, but the Arbitration Court allowed an appeal, and directed a conviction. In the case

last mentioned, the words used were, “ No work shall be done after 10 p.m.” In the present case the words are, “ but so that in any event work shall cease not later than i p.m.” I cannot see any ground for distinguishing the two. See also Auckland Butchers’ Award (interpretation), Vol. X., p. 630. Cases of undue hardship can be dealt with under Sec. 16 of the Act of 1908, as “ excusable breaches.” I agree, however, with the defence that these employees being “pieceworkers” are not affected at all by Clause 1. It is not suggested that they were pieceworkers subject to any special condition. They could leave when they pleased, they could be dispensed with by their employer whenever he pleased. (See BlackBall Miners’ Union v. Blackball Coal Co., Vol. 9, p. bo). They undertook to do not a whole job but an undefined amount of work at a rate calculated by the piece. (See re Auckland Carpenters, Vol. 6, p. 180). It seems to me that Clause r deals only with those workers who are paid by time. As to them, the “week’s work” is 48 hours, aud the employer can arrange such hours of work ; that is, such 48 hours as he pleases within certain limits. He must arrange that work so that it shall cease not later than 1 p.m. on Saturday. The hours of work of these pieceworkers were beyond the control of the employer altogether. If he was not satisfied with the way they were working, his only remedy was to discharge them. If they chose to work long hours, or on holidays, the rate they would receive per ton would not vary. Flaxcutting is almost invariably piecework, and yet I venture to say no flaxcutter has ever claimed extra rates lor flax cut after, say, 48 hours’ work in one week. In Nelson Bros, case, relied on by the plaintiff Union, the men, though pieceworkers in the sense that they received a certain sum per carcase, were yet under the employers’ control as to the hours of work. Certain ordinary hours were specified in the Award, but the employer could call on them to work beyond those hours. Mark's case (Vol. IX., p. 669) was under another Slaughtermen’s Award (Auckland), and it was held that the provision for holidays and overtime did not apply to pieceworkers. Both cases are reierred to in the case. Re the Hawkes Bay Freezing Works Award, Vol. 10, p. 634. In re the Wellington Typographers’ Award (interpretation), Vol. X., page 88, the question was whether pieceworkers were entitled to be paid for certain holidays on which no work was done. The Court said :—“A pieceworker is entitled to be paid only for work done by him. If he does not work on any specified holiday he is not entitled to any payment in respect to such holiday. It he does work on a holiday he is entitled to be , paid only the piece rate fixed by the Award for work done on such holiday. The provision in Clause 3 of the Award, that if holidays are given all operators shall be paid for them at time rates, can apply only to workers who are engaged for a definite term. A pieceworker, when not at. work, is not in the service of any particular employer, and, for the purposes of the Award, he is only an operator when at work. The case of a weekly hand is different. There is a contractial relation between the parties.” It will, I think, be found that in all cases in which it has been held that a “pieceworker” is entitled to overtime or holiday rates the employer is en - titled to call on him to work whether he desires to or not. That is not so in the present case. Judgment is for the defendant, with costs 2is.

THE PREFERENCE CEAUSE AEEEGED BREACHES. TWO CONVICTIONS. TWO CASES DISMISSED.

At yesterday’s sitting of the Magistrate’s Court, four cases of alleged breaches of the preference clause of the F'laxmillers’ Award were brought by the Manawatu Flaxmills Employees’ Industrial Union of Workers against local millers. Mr Dalhousie, president of the Union, conducted the cases on behalf of the Union and Mr Innes, of Palmerston North, appeared for the defendants.

The first cases taken were two against A. King and Co., for failing to dismiss two workers, who were not members of Mauawatu Flaxmills Employees’ Union, from their service when requested to do so by the said Union, there being then two members of the said Union equally qualified to perform the particular work to be done and ready and willing to undertake the same. For each breach the Union claimed a penalty ol ,£lO. Mr limes, on behalf of defendants, admitted the charges. He said, however, that they were not wilful breaches. The men in question had been engaged for some considerable time before the mill closed down in the winter, and when the mill re-opened they were taken on again. When taking them on again defendants thought the previous engagement was being continued, for although there had been no definite arrangement, when the mill closed, there was a casual understanding that they were to commence work again immediately upon the mill re-commencing operations. He contended that it was only a technical breach. The Magistrate said he could not understand why men refused to join the Union. The amount to be paid was so small, they would get all the benefits, and where there was a preference

clause they should certainly join

Mr Dalhousie said that this was the second time the present defendants had been brought up for a breach of the preference clause. They had been fined £1 in November last. He said defendants were unfortunate in their reading of the preference clause. This clause was not forced upon them by the Court, but was agreed upon mutually by the represe •

lives of the employers aud employees. The Union had had to make great concessions to get the clause and he therefore asked for a substantial fine.

The Magistrate, in entering up judgment, said he would take into consideration the fact that the men had been working at the mill belore the break in the winter and possibly the defendants considered that when re-engaging them when the mill re-commenced operations they were continuing the previous engagement. Judgment was entered up for £ 2, with witnesses expenses, 15s.

The next case was against William Ross and Son Etd., who were charged with a similar breach of the preference clause, for failing to dismiss an employer named Ebbelt. One of the defences was that the man’s engagement dated back before the coming into operation ol the Award, and it was agreed that evidence on this point should be taken first. Mr In ties called Alfred W. Pearson, secretary to Wm. Ross and Son, Ltd., who stated that Ebbett was first engaged in January, aud had been, with the exception of a break of five days, continuously employed by the firm. Could not give the exact dates that Ebbett was away from work, but it was in July or August. The mill was closed down for four weeks during the winter, but Ebbett was working about the mill during the whole of that time.

To Mr Dalhousie : Witness said he could not say what Flbbett was doing during the whole time he was employed by the firm. At times he was carting. He finished carting during August, and commenced bench-loading almost immediately. The five days off were not taken at that time.

The Magistrate held that the man had been continuously employed, and as he was engaged before the coming into operation of the Award, no breach had been committed. The case was therefore dismissed with costs, £1 is. [A full report of the remaining case, that against the Awahou Milling Co. (W. Ross), which was dismissed with costs £1 is, will appear in our next issue.]