TEST CASE

Waikato Times, Volume 127, Issue 21209, 4 September 1940, Page 9

TEST CASE

COUNTRY WORK IMPORTANCE OF ISSUE EXISTENCE OF AGREEMENT (By Telegraph.—Press Association* DUNEDIN, Tuesday A case that may have far-reach-ing consequences throughout the Dominion, and one that was taken as a test case, was heard in the Magistrate’s Court before Mr J. R. Bartholonew, S.M., when the inspector of awards proceeded against Downer and Company, Limited, of Wellington, for a £lO penalty for an alleged breach of the New Zealand builders, contractors and general labourers’ award in failing to pay William Lyall Johnson overtime pay between September 23, 1939, and April 20, 1940. Mr W. H. Cadwallader represented the department and Mr E. J. Anderson the defendant company. The magistrate reserved his decision. Briefly, the case rested on the interpretation of the award in its reference to country work. On September 23, 1939, a number of men commenced work for the defendant company on building tunnels for the Dunedin City Corporation at Waipori Falls. They were paid on the basis of the country work clause, which provided an extra penny an hour for overtime work. The chief question at issue in the present claim is whether an agreement for the country clause to operate had been entered into between employer and employee. Men Carry On Mr Cadwallader submitted that the nTen engaged on the work were tunnellers and as such were entitled to overtime rates when they worked in excess of the hours prescribed by the award. If an agreement had been reached for the country clause to operate, then the onus was on the employer to prove it. There was a disputed clause in the award and the men carried on so as not to impede the work of the employers. He contended there was no such agreement entered into and that the men were entitled to overtime rates.

“This is a very important action and it may have wide repercussions throughout the country,” Mr Anderson said. “The position is that Downer and Company is a wellknown firm specialising in tunnelling work, and is engaged in jobs from Taupo to Homer Tunnel. If the contention of the department is correct, Downer and Company will be involved in an additional sum of approximately £3OOO on the Waipori job alone, for if the contention is correct claims will be launched by 30 to 40 men at present on the job and by others who have left the work.” Question of Agreement Mr Anderson said the whole crux of the matter seemed td be fairly simple. The department was willing for the country work clause to operate so long as an agreement was entered into. It would be shown in evidence that an agreement had been entered into. According to the complainant, if there had been the merest written agreement that would have been the end of the matter, but there was no requirement in the award that the agreement should be in writing. Actually the clause stated that the employer might agree with the worker to accept his services on the country clause basis. It did not state that the employee should agree. What had to be proved was whether there had been an agreement by the employer to apply the country clause.

“If a written agreement has to be entered into,” Mr Anderson said,

“these big firms and hundreds of others throughout the Dominion are breaking the award. I submit that the whole case is based on a mere technicality.” After hearing lengthy evidence and .further legal argument, the magistrate reserved his decision.