81

H.—II

Invercargill. —(Shops and Offices Act): A fruiterer and confectioner was fined £1, with costs 95., for failing to allow a half-holiday to a shop-assistant. The assistant was employed part of her time doing housework and part assisting in the shop. Nelson. —(Shops and Offices Act): Judgment was given by Mr. Eyre-Kenny, S.M., on the 27th August, 1907, in the action Inspector of Factories v. a baker. The defendant is charged for that he, on the 29th day of June, 1907, being the occupier of a shop, did employ a shop-assistant in or about the business of a shop before the hour of 4 o'clock in the morning of Saturday, the 29th day of June, 1907. The information is laid under section 4 of " The Simps and Offices Amendment Act, 1905," which forms part of and is to be read with the " principal Act," " The Shops and Offices Act, 1904." This section reads as follows: "No shop-assistant shall be employed in or about the business of any shop before the hour of 4 o'clock in the morning, in the case of bakers, butchers, or milkmen." It was proved that the defendant occupied a baker's shop with a bakehouse attached. That at 3.30 a.m. on the day in question the assistant came in ami went to work in the bakehouse. He took his coat off, and brought some buckets of water in, and prepared to mix the dough. That the bakehouse is registered as a factory, but that the assistant is mainly employed by the defend ant driving the baker's cart ami taking round bread for eale, The practice is this: The assistant takes the baker's cart out at 9 a.m., finishing about 4 p.m. On four days of the week lie delivers bread between these hours, having an hour for dinner in the middle of the day. On Friday In , delivers bread for about two hours. He feeds the horse in the morning. On Saturday morning he comes into the bakehouse at .'{..'ill a.m., and assists the baker to get out ft batch of bread. lie works for an hour in the bakehouse, am! comes back again about (i a.m. He then scales off the bread, makes it into shape, and hands it to the foreman, who puts it in the oven. That takes him an hour and a half, and then he goes to his breakfast at 7 'it) a.m. He comes back at 8.80 a.m. The foreman find the defendant take tin , bread out of the oven, and the assistant puts it into the cart, takes it out and delivers it. That employs him all the rest of the day till a little after 4 p.m. On Monday, Tuesday, and Thursday he comes at ">..' id a.m. to work in the bakehouse. On these days he delivers the bread after it comes out of the oven. On Wednesday he comes at 9 a.m., breaks wood, and cleans up the ground and stable. That is all he does on that day. <>n Friday he comes at 6 a.m., feeds the horse, goes back to his breakfast, and then comes back to deliver the bread. The great bulk of his work is the delivering of bread. It is the practice among bakers, according to the employer, where two men are employed, that the youngest, after getting out a batch, goes out to deliver the bread. If any one comes into the shop they can buy bread, but the defendant goes into the bakehouse to get it. Sometimes the defendant keeps bread in the shop for sale, but it is not exposed for sale. Confectionery is sold in the shop, but the defendant does not manufacture it. I have been at some pains to set out the facts fully, because, as Lord Racon observes, "No time is ever wasted in the statement of a case." 'Shop" is defined in the interpretation clause of ''The Shops and Offices Act, 1904," to mean " any building or place in which goods are kept or exposed or offered for sale, or in which any part of the business of the shop is conducted, but does not include a warehouse doing exclusively a wholesale business." It is quite plain that the defendant's shop is a "shop " within the terms of the Shops and Offices Acts, 1904 and 1905. The interpretation clause of the Act of 1904 describes a shop-assistant "as "'any person (whether a member of the occupier's family or not) who is employed by the occupier of a shop in or about the business of the shop, and includes all persons in the occupier's employment who are employed in selling or delivering his goods or canvassing for orders for his goods, whether such persons are at any time actually employed inside a shop or not." Whilst by section sof the same Act it is provided "that in order to prevent, any evasion or avoidance of the limitations Imposed on the employment of shop-assistants by the last preceding section, the following provision shall apply in the case of every shop-assistant: All work done [oi the occupier of a shop by the shopassistants elsewhere than in the shop (whether the work is or is not in connection with the business of the shop) shall be deemed to lie done whilst the shop-assistant is employed in a shop, ami the time shall be counted accordingly." The last preceding section (section 1) is headed " Hours of employment, t0.," and the leins lation which follows is legislation regulating and limiting those hours. Section t of "The Shops ami Offices Act Amendment Act, 1905," under which this information is laid, is also a section regulating the hours of employment, by fixing the hour of commencement of employment in the case of bakers, butchers, ami milkmen. Ami. as the Act of Kid.") forms part of and is to be read together with the Act of 1904, I think that section ."> of the Act of 1904 must be held to be applicable to cases arising under section 4 of the Act of 1905. It is important to note that section 22 of the Act of 1904 practically constitutes a cart from which goods are offered for sale " a shop " within the meaning of the Shops and Offices Acts. These are all the statute enactments relied on by the prosecution. Defendant's solicitor refers to "The Factories Act, 1901," section 2, subsection (2), where it is said that the term "factory" means, inter alia, "every bakehouse, meaning thereby any building or place in which an\ article of food is baked for sale for human consumption." He also argued that the information had been laid under the wrong Act, and that (lie assistant was a faotwry- worker, and not a shop-assistant. The pnoce dings should have been taken under the Factories Act, if indeed any proceedings could be baken on the facts as disclosed by the evidence. I will, in the first place, refer to a section which was not cited by either side in the argument of the case. I moan section 18 of "The Shops and Offices Act. 1904," which says, "where a person is the occupier of both a shop and a factory, and employs any person partly in the one

11—H.jll.