Factories and Shops Act 1896 (No. 1445), s. 15 (8)-Employment at lower rate of wages than log rates-Intention to evade Act-Dispute as to liability for particular rate-Wages, contract as to.

An employer, relying upon an alleged contract made without any intention to evade the provisions of the Factories and Shops Act 1896, who honestly disputes his liability to pay a particular or log rate of wages, is not liable to be convicted for a breach of the provisions of sub-sec. 8 of sec. 15 of Act No. 1445.

ORDER nisi to review.

The informant proceeded against the defendant Bartlett for breach of the Factories and Shops Act 1896. The defendant, who was a clothing manufacturer, employed one Annie Meghean at his factory, and the charge was for employing her at less than the log rate of wages established by the Board. It appeared that the defendant had at first employed the girl at weekly wages of 11. per week, which rate was in accordance with the log rate. Subsequently, not considering that she was working fast enough to justify the continuance of that rate, he determined that she should be employed at piece-work wages; this was done after the commencement of the week's work, viz., on a Tuesday. The defendant said that he told the girl of this arrangement, and it was noted in a book kept for noting the work done on piece-work. The girl never signified her acceptance of this arrangement. At the end of one week the defendant tendered her 18s. as the price for piecework, but the girl claimed that she had done extra work, even V.L.R., Vol. XXIV.

A

1898

June 16.

Madden, C.J.

1898

HALL

v.

BARTLETT.

Madden, C.J.

if she were to be paid by piece-work, and that that extra work was not allowed for. She claimed to be paid for weekly work at the log rate of 11. per week.

The defendant relied upon the arrangement to pay by piecework as a defence, and stated that he was willing to pay the balance if it were found that Meghean was entitled to more. The justices convicted the defendant, and fined him 5l. The defendant then obtained this order to review upon the ground that there was no evidence to support the conviction.

Mitchell to show cause-The justices have found as a fact that the defendant entered into a contract to evade the provisions of the Factories and Shops Act, and it was a question of fact for them to decide. The defendant was "employing" the girl under an agreement or understanding which tended to defeat the objects of the Act. He set up a contract as a defence that was not believed, and if the wages were paid under any other arrangement there was a distinct contravention of the terms of sub-sec. 8 of sec. 15 of the Act.

Cussen to move the order absolute was not called upon.

MADDEN, C.J. This case is similar to one decided by my brother A'Beckett, in which I had previously granted an order nisi. The case turns upon the effect of sub-sec. 8 of sec. 15 of the Factories and Shops Act 1896. (His Honor read the subsection.) The meaning of that is, that according to law a log price shall be established for weekly work and a log price for piece-work; as soon as this is fixed no contract can lawfully provide for a lower rate of wages in the employment of a person in either piece-work or weekly work as the case my be. If in attempting to engage an employé the employer, in order to evade or defeat the log rate in either case, agrees that, while pretending to pay the log rate, he will pay a less rate, and the employé accepts those terms, then the employer would be guilty of an offence under this Act. It would be plain that his intention was to walk round the Act and the rates established under it. But if a person employs another really either on week work or piece-work according to the specified rates, it is

1898

HALL

v.

BARTLETT

no offence on his part honestly to dispute his liability to pay more or less to the person whom he employs. If he succeeds in his dispute he defeats the claim; if he loses, the person employed is entitled to what is the true rate. He is entitled to Madden, C.J. dispute his liability on what appears to him a lawful groundthough it may turn out wrong; but because a person sets up a defence which turns out wrong, it does not follow that he is guilty of a crime. The Act provides nothing of that sort, but only in cases where he intends to evade the Act. To come within the mischief of the Act he must pretend to make contract with another person for a less rate than the Act provides; it does not matter whether that pretence takes effect in engaging a person at the beginning of the contract or at the end. If a less sum is given in discharge of the contract that would be wrong; it would be just as much an offence as if they had agreed in the first instance to do so. The evidence in this case shows that the girl was at first engaged at weekly wages at the log rate, and had been paid for a time at 11. per week. In the beginning of the week in question, on the Tuesday, the employer got the agreement back, and thinking she was not doing her work fast enough to earn the 17. per week, determined himself that she should be employed at piecework, and noted it in the book. She was no party to this, and being no party, this would not constitute a contract binding her. He then tendered her what was the piecework price appearing in the book, which was 188.; then the prosecution took place. He contended that his view was right; that as the girl could not work fast enough for weekly wages he had engaged her at piece-work and that that amounted to 188., and the book was shown to the girl, who then said that she had done work to the trousers other than the work mentioned in the book itself. He said that he did not know of that. The justices thought rightly that the contract set up by the defendant was not binding on the girl because it was made in the middle of the week and could not affect that week. In addition to that they found that the employer entering something in her book to which she did not give her acceptance did not amount to a contract, and that even if she were