CLAIM FOR OVERTIME.

Gisborne Times, Volume XXVII, Issue 2572, 5 August 1909, Page 2

CLAIM FOR OVERTIME.

—. ■ -- -■» ■ ■ IMPORTANT DECISION. JUDGMENT FOR DEFENDANT. In the Magistrate’s Court yesterday morning Mr W. A. Barton gave judgment in a caso of importance in regard to the interpretation of the law, as to the employment of shop assistants longer than the statutory number of hours in any one week, and as to whether shop' assistants working overtime can claim payment for the time worked. The caset was one a,*sing out of the employment of a hairdresser; the case of F. W. King v. Cuthbert Morse, and the Judgment was as follows: “The plaintiff claims to recover from tho defendant tho sum of £9 18s for overtime wages as a hired servant of the defendant from the 14th day of September, 1908, to the 16th day of March, 1909, being at the rate of Is 6d per hour. It is admitted that the plaintiff did work more than the number of hours per week than is permitted by statute. At the time of the plaintiff’s engagement the hours of employment usual in the trade in which plaintiff was employed were mentioned, and plaintiff entered upoh his duties, and continued in defendant’s service till the 16th day of March, 1909, when it was discovered by the Inspector of Factories that plaintiff had been employed in defendant’s shop more than the number of .hours permitted by Section 6 of “The Shops and Offices Act, 1908.” It appears that both the employer and employee were ignorant of the provisions of the Act, until they were informed by the Inspector of Factories, and plaintiff admits that he made no demand upon the defendant for the payment of overtime till after he left 1 the defendant’s service. The section of tho Act referred to provides that a shop assistant shall not be employed in or about the shop or its business for more than fifty-two hours in any one week; and it contains.the following proviso:—(Subsection 3 of section 6) “For the -purpose of stocktaking, or other special work, such working hours may, with the previous written consent of the Inspector be extended, but not for more than three hours in any one day, or not more than thirty days in any one year; and provided also that every shop assistant employed during such extended hours shall be paid therefore at half as much again as the ordinary rates, etc.” The defendant was proceeded against upon information by the Inspector of Factories for a breach of the provisioii of Section 6 of the Act, by employing plaintiff for a greater number of hours than permitted by statute; and for such offence he was convicted and fined. Counsel for defendant contends that plaintiff has no right of action, and that overtime can only he recovered where a shop assistant is employed with the sanction of tho Inspector under the provisions of the section before referred to. It is obviohs that tho proviso in subsection 3 is limited to cases in which the consent of the Inspector has been ilitained, and it is therefore only reasonable to suppose that had the Legislature intended that (overtime should be recovered in cases other than those mentioned, it would have said so in express terms. Tho question is by no means free from doubt, but I am of opinion after carefully considering tho provisions of the Act, and the authorities quoted, that the plaintiff is not entitled to succeed in this action. Judgment accordingly for defendant with costs of Court. • Mr, Coleman appeared for the plaintiff and Mr Burnard for the defendant. Mr Coleman said that as the case was the first of its kind heard in the Dominion and of groat importance to shop assistants, lie would), ask for leave to appeal against the decision. His Worship said that he recognised that the question in dispute was hot free from doubt and lie.would give leave to appeal.