THE ATTORNEY-GENERAL v. URQUHART

104-NLR-NLR-V-34-THE-ATTORNEY-GENERAL-v.-URQUHART.pdf


393
The Attorney-General v. Urquhart.
1932 Present: Macdonell C.J., Garvin S.P.J., and Dalton J.
THE ATTORNEY-GENERAL v. URQUHART.
372—P. C. Panadure, 12,113.
Minimum wage—Minimum rate for working day of eight hours—EstateWages Board—Power to fix minimum wage—Employer’s contract forworking day of six hours—Proportional rate of pay—Rate less favourablethan minimum rate—Indian Labour Ordinance, No. 27 of 1927, ss.8 (1) and 11 (1).
Where, under the Indian Labour Ordinance, No. 27 of 1927, theEstate Wages Board has fixed a minimum rate of wages for a workingday of eight hours to be paid for time work, the accused, the Superin-tendent of an estate, engaged labourers on a working day of six hours,to be paid at a proportional rate, computed according to the minimumrate of wages fixed.
Held, (by Macdonell C.J. and Dalton J., Garvin S.P.J. dissenting),that the accused had paid the labourer, at a rate of wages less favourablethan the minimum rate of wages fixed and that he had offended againstthe provisions of section 11 (1) of the Ordinance.
Per Garvin S.P.J.—There is no provision in the Ordinance whichrequires payment at a higher rate for time work, whenever, by theterms of the agreement, the agreed horns per day are less than eighthours ; nor is it possible to interpret the rate of 50 cents per workingday of eight hours fixed by the Estate Wages Board as meaning a wageof 50 cents for every working day of eight hours or less.
ASE referred by Garvin S.P.J. to a Bench of three Judges.
The accused was charged with having committed an offence undersection 11 (1) of the Indian Labour Ordinance, No. 27 of 1927, in that,being the Superintendent of Perth estate, he paid three labourers, towhom the minimum rate of wages fixed under Chapter I. of the Ordinancewas applicable, at a rate of wages less favourable to them than theprescribed minimum rate of wages applicable- to each of them. InNotification No. 23, published in the Government Gazette, the rates fixedby the Estate Wages Board and approved by the Governor were set outas follows : “ On all estates the rate fixed is the minimum rate to bepaid for a working day of _ nine hours (including time not exceedingone hour taken for midday meal) . . . . The following minimumrate of wages have been fixed for the areas specified: Men 50 cents,women 40. cents.” Since May, 1931, the working day, in the case, ofPerth estate, was limited to six hours for which the labourers were paida wage computed at the rate of six-eighths of 50 cents or six-eighths of40 cents according as the labourer was an adult male or female.
The defence to the charge was that the wages paid, worked out perhour, amounted to the same or a little more than the amount per hourcomputed at the minimum rate fixed by the Estate Wages Board andcould not be said to be a less favourable rate.
The learned Police Magistrate upheld the defence and acquitted theaccused.
394
The Attorney-General v. Urquhart.
Illangakoon, Acting S.-G. (with him Basnayake, C.C.), for Crown, appellant—This is an appeal from an acquittal in a prosecution under section 11 (1)of Ordinance No. 27 of 1927. Whether a labourer works for eight hoursor less a day the minimum daily wage fixed under the Ordinance must bepaid. The Police Magistrate has held that the payment should beaccording to the time taken in the work at a rate proportional to therate fixed for an eight-hour working day. The Ordinance contemplatespayment for time work and work other than time work. Time work iswork paid for on the basis of an eight-hour day. Beyond this period isreckoned as overtime. The Ordinance has to be read and construed withthe previous Labour Ordinances, Nos. 11 of 1865, 13 of 1889, and 1 of 1923..The labourers were engaged on a monthly verbal contract of service.Section 4 of Ordinance No. 11 of 1865 draws a distinction between servantspaid at daily and monthly rates. The wages have to be computedaccording to the number of days the servant was able and willing to work(Colville v. Ramasamy1). The employer was bound to give the labourersix days’ work per week and consequently six days’ wages. Section 6 (2)of Ordinance No. 13 of 1889 is the Magna Charta of the Indian labourer.The labourer may be engaged to work for a few hours each day but theemploye^ is bound to pay the full wage for an eight-hour working day as.laid down in the Ordinance. An employer cannot split up the minimumwage fixed for the working day. No question of time enters into a casewhere a labourer is engaged on piecework. The unit of the eight-hourday cannot be subdivided. The labourer is provided with a minimum payfor each day. There is no difference between minimum rate of wages andminimum wage. The Estate Wages Boards could merely fix minimumrates of wages with reference to the unit of time, namely, an eight-hourday contemplated by the Ordinance. (Seabrook & Sons, Ltd. v. Jones".)Under the corresponding English Act, viz., The Agricultural WagesKegulation “Act, 1924, committees are empowered to fix rates varyingaccording to many other factors, e.g., age, &c. Section 8 (2) of OrdinanceNo. 27 of 1927 empowers Estates Wages Boards to fix rates varyingaccording to the class of labour, locality, age, and sex. The unit of moneymay therefore vary according to these reasons. (Cf. Wage Systems inIndustry : Encyclopaedia Britannica (14th Edition), p. 275.) Jones v. Harris3(variation due to age of worker). There is no distinction drawn betweenthe minimum rates of wages and the minimum wages. ' (Cf. EncyclopoediaBritannica (14th Edition), Vol. XV., p. 541, on Minimum Wage.)
The principle underlying the fixing of minimum rates of wages is to keepthe labourer from starvation and enable him to maintain a reasonablestandard of living. The whole object of the Ordinance is to fix a minimumwage. The Estates Wages Boards have no power to fix rates for a periodexceeding eight hours. The minimum overtime time rate is prescribedby section 3. In contracts between master and servant it is true partiesare ordinarily free to contract, but there are certain statutory limitations.(Ball’s Law of Master and Servant, pp. 73 and 74.) A Court should try andinterpret provisions of an Ordinance, though badly drafted, according to
the accepted canons of interpretation,
i 2 s. c. C. 94.
3 (1927) 1 K. B. 425 at 431.
2 (1929) 1 K. B. 335.
395
The Attorney-General v. Urquliari.
H. V. Perera (with him G. P. J. Kurukulasuriya), for accused, respondent.—The Court must be guided by what the Legislature has said, not bywhat was in its mind when the Ordinance was passed. The Legislaturehas provided a minimum time rate, viz., a sum of money for whichthe labourer sells his labour: cf. section 3 (1) of Ordinance No. 27of 1927. The actual time the labourer gives in service to the employeris what counts. Any extra work is another contract which the labourerenters into voluntarily. Within the terms of the contract of servicethe labourer is entitled to be paid. Section 3 of Ordinance No. 11 of1865, merely says that every verbal contract shall be deemed to borenewable monthly. These sections have left untouched the freedomof contract as between master and servant. The working day may beof any length as agreed upon between the parties. There is no provisionin the Ordinance that there shall be a minimum working day.
The Ordinance of 1889 applies only to Indian labour. Section 5creates a presumption of a monthly contract renewable from monthto month in certain circumstances. The Estate Wages Board canonly fix a minimum rate for time work. A minimum wage is necessarilya rate for time work : if there is overtime work, then the labourer ispaid so much more : if less, so much less. There is no mention in theOrdinance of a maximum or a minimum day. The Estate Wages Boardhas fixed a rate of payment depending on hours of actual work. Whereparties have not agreed on the working day then the customary workingday may be brought in to supplement the contract. Section 6. (1) ofOrdinance No. 13 of 1889, is amended by section 18 of Ordinance No. 27of 1927. Time work is work paid for as agreed upon between theparties.
The Estate Wages Board cannot fix a minimum day. In section 11the rate means a ratio as express reference is made to time work. Boardof Trade v. Roberts France v. Coombes & Co. The time rate enables anemployer to find out how much is payable for work done. Overtimerate comes in only when the work exceeds eight hours. Section 3 (2)provides for overtime rate. In Hampton v. Smith3 it was held that aman cannot be charged until he has paid the employee money due tohim. Davis v. Glamorgan Coal Co., Ltd. The Estate Wages Boardcan fix a minimum rate only for time work unlike the Wages Boards inEngland. The Estate Wages Board has no right to fix a minimumlimit of time. The rate may vary according to the number of workinghours. The English Act gives the Wages Boards much wider powersthan in Ceylon. If the rate is fixed for an eight-hour working day thenby calculation you can find out the rate for a six-hour working day.Our Ordinance mentions three classes of workers ; with regard to eachclass, the Estate Wages Board can fix one rate only for time work. Inthe absence of express power as given by the English Act, you cannotdistinguish between workers in the same category only. The EstateWages Board in fixing differing rates have acted ultra vires. The Board'has no power to fix varying rates. If the Board has- no right to fix
> (1916) 85 L. J. K. B. 79.3 (1920) 89 L. J. K. B. 413.
3 (1928) 2 K. B. 85.* (1914) 1 K. B. 674.
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MACDONELL C.J.—The Attorney-General v. Urquhart.
varying rate for different contracts, it acted ultra vires. If the Ordi-nance is badly drafted, the Court must hold against the penal provisionsof Ordinance and in favour of the accused, R. v. Chapman1.
November 11, 1932. Macdonell C.J.—
In this case the accused was charged with the following offence : “ thathe being an employer of Indian labour on Perth estate, Horana, withinthe jurisdiction of this Court, did in September, 1931, pay certain labourersemployed on the said estate, to wit: Thengaperumal, Vyapury, Mari-muttu, Mayandi, and Sangaran, to whom a minimum rate of wages fixedunder Chapter I. of Ordinance No. 27 of 1927, was applicable, at a rate ofwages less favourable to them than the minimum rate, and therebycommitted an offence punishable under section 11 (1) of OrdinanceNo. 27 of 1927 ”. The Magistrate acquitted the accused and from thisacquittal the Attorney-General appeals. The facts were these.
The accused was at all material times Acting Superintendent of Perthestate, one which employs Indian labourers and is situate in the KalutaraDistrict to which Notification No. 23 issued under the Indian LabourOrdinance, No. 27 of 1927, and published in Government Gzaette No. 7,676 ofNovember 30, i928, is applicable. The estate then was bound to pay itslabourers according to that Notification, the wording and effect of whichwill be considered later. For the present it is enough to say that the• minimum rate of wages applicable to estates in Kalutara District is 50cents for men, 40 cents for women, and 30 cents for children. Theextract from the check roll for the month of September, 1931, showsthat Thangaperumal worked for twenty-four days and received Rs. 9.70and Mayandi worked for twenty-five days and reveived Rs. 9.37, andNallamma worked twenty-three days and received Rs. 6.80. In thecase of Thangaperumal and Mayandi the average daily pay each receivedis about 40 cents and 37£ cents, respectively. The system of workingon this estate and of. payment there seems to be this. Each laboureris given 133 trees for “ tapping task ”, which includes tapping thetrees and weeding the, block where they grow, work generally startingat 6 a.m. The labourers are expected to finish this work in six hours,that is by 12 nOon. A labourer will take about one and a half to twohours in cutting the barks of the 133 trees and the latex will be readyfor collection at about 10 a.m. During the two hours interval between 8and 10 a.m. the labourer is expected tp do weeding work. After 10 a.m.he starts collecting the latex and takes it to the Factory and thusfinishes his work by 12 noon. Though expected to do weeding workbetween 8 and 10 a.m. in experience it was found impracticable to get thework done at these hours, hence the labourer is allowed the option ofdoing that work in the afternoon. The weeding work is done on fourdays out of the seven in a week and during those four days the laboureractually works twenty-four hours in all, and during the remaining threedays, twelve hours in all. This system is described as a monthly contractwith these labourers to do work as above for six hours per diem. It doesnot seem to be the case that they always work six hours each day nomore and no less, but it seems agreed that they did work thirty-six hours
1 (2931) 100 L. J. K. B. 502.
MACDONELL C.J.—The Attorney-General v. Urquhart.
397
in the week and were supposed to be paid three-fourths of the amountsmentioned in the Notification, i.e., three-fourths of 50 cents for men,three-fourths of 40 cents for women. (The finding of the Magistrate onthe facts was not very satisfactory but it was accepted by the appellant.)
It must here be stated that by the confession of the prosecution itselfthis estate was a model estate against which there were no complaintsas to the way it treated its labourers, and both the Acting Superintendent—the nominal accused in this matter—and the Superintendent for whomhe was acting, are stated to be men entirely competent in their dutieswith regard to their labourers and likewise thoroughly considerate of themand their interests. If one of them happens to have been made thenominal accused, this has been merely for the purposes of testing thequestion—has their estate, and others following a similar system, taken acorrect view of the law or has it not? Whichever way the case results,no slur will have been cast on either of them or on the estate for whichthey work.
The payment of Indian labourers is now fixed by Estate Boardsappointed by the Governor under section 6 of Ordinance No. 27 of 1927,and an Estate Board when appointed “ shall from time to time as occasionmay require fix minimum rates of wages for time work performed onestates within its jurisdiction”, section B (1). Section 10 (1) providesthat “ A minimum rate of wages or a cancellation or variation thereofshall not take effect until it has been approved by the Governor inExecutive Council and published in the Gazette. When so publishedthe minimum rate or the cancellation or variation thereof shall be bindingon all employers ”. The particular Notification No. 23, reads as follows: —“ On all Estates the rate fixed is the minimum rate to be paid for aworking d^.y of nine hours (including time not exceeding one hour takenior the midday meal)…. The following minimum rates of wageshave been fixed for the areas specified, Kalutara Revenue District: Men50 cents, women 40 cents ”.
The prosecution contend that this Notification means that a malelabourer should be paid 50 cents for each day he works or is able andwilling to work, such day not to exceed nine hours including one hour forthe midday meal, and that a sum of 50 cents, no less, is what he is toreceive for each such day, a"lso thatminimum rates of wages ” mean
minimum wage ”.
The defence contends that the law nowhere says that the employershall pay the labourer so much per diem or that the labourer’s pay is tobe reckoned at so much per diem. Rate, in the phrase, rate of wages,means ratio. The. Notification has fixed a rate, that is a ratio, and solong as the employer does not pay a labourer less than that ratio, he is notbreaking the law and can lawfully make what agreement with thelabourer he pleases. The contract made Iry the respondent was, it isargued, an agreement that the labourer should for the six hours he worked,receive pay at the rate or ratio of 50 cents for eight hours, then thatagreement did not transgress the Notification. It was further argued thatif what the Notification meant was that the labourer was to receive50 cents for each day he was working, or able and willing to work, eventhough he worked for less than the eight working hours which were to
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MACDONELL C.J.—The Attorney-General v. Urquhart.
make up a day, then the Notification would be ultra vires since the lawonly allows Estate Boards to fix a minimum rate of wages for time workand this would not be time work. It is necessary to examine the law onthe subject.
There are four Ordinances affecting it, the first being Ordinance No. 11of 1865. The material clauses of Ordinance No. 11 of 1865 are the follow-ing. Section 3 enacts that “ a verbal contract for the hire of any servantexcept for work usually performed by the day or by the job or by thejourney, shall (unless otherwise expressly stipulated, and notwithstandingthat the wages under such contract shall be payable at a daily rate),be deemed and taken in law to be a contract of service for the period ofone month, and to be renewable from month to month ”, and this provi-sion is substantially re-enacted in the Indian Labour Ordinance, No. 13 of1889, section 5, with the addition, that if the labourer’s name is borneon the check roll of an estate—that is, the record showing the work doneby labourers under a monthly contract—then again the presumption ofa monthly hiring arises. As the Indian labourers in the present casewere certainly on the check roll of an estate, then their contract was amonthly one. It is important to notice that the law contemplates wagesbeing payable at a daily rate on a monthly contract. Section 4 ofOrdinance No. 11 of 1865 provides for the wages of such monthly labourerbeing paid monthly and in case of a broken period of service “ to the daythe service is determined ”, and continues, “ and such wages ….shall be computed according to the number of days on which such servantshall have been able and willing to work ; or if payable at a monthly rate,shall be in proportion to the number of days on which he shall have beenso able and willing as aforesaid ”. A sub-section added by Ordinance No.27 of 1927, to this section 4 of Ordinance No. 11 of 1865, and dealing withdismissal for misconduct of a servant employed for a period of timelonger than one day, enables the employer “to decline to pay any wagesclaimed …. subsequent to the last preceding period for whichsuch servant was employed ”. Section 13 of the Ordinance No. 11 of 1865enables a Court to make a deduction from the wages due to any servant“• for such days or time as he shall have been …. without theconsent of his employer absent from …. his work ”, andpresumably this means that if he has been so absent for a portion of a day,the Court could, if so minded, deduct part of his pay for that day. Section15 of the same Ordinance penalizes any false assertion that a servant hasbeen in employ “ for any period of time whatsoever … < other
than that for which such servant ….. shall have been soemployed ”. But section 13 is the only place in these Statutes which canpossibly contemplate pay for less than a day, and as the length of a day isnowhere defined in them, it seems doubtful whether this idea was presentto the legislature when it used the phrases “ such days or time, ” section13, and “ any period of time ”, section 15, since in this connection section 5of the Ordinance has to be considered, “ every verbal contract for the hire,according to time, of any Journeyman Artificer …. shall bedeemed to be for the hire of such Artificer for one day, and no longer”.This might be considered as contemplating the possibility of work for atime less than a day but section 6 which enables the Artificer to recover
MACDONELL C.J.—The Attorney-General v. Urqxihart.399
his wages “ according to the full period of time ” he was serving andsection 7 which prevents a contract being made with such for longer than-a month unless entered into before a Magistrate, shows that what thelegislature was considering in these sections was the protection of theworkman from being bound by contract for too long a time, and not anyperiod of work less than a day. That was clearly what it was aiming at.Ordinance No. 13 of 1889, was an amending law regulating the position ofIndian labourers. Its section 5 is mainly a repetition of section 4 ofOrdinance No. 11 of 1865, as has been said, and the only other section in itmaterial to the present case is section 6. “Where wages are payableat a daily rate, the monthly wages shall be computed according to thenumber of days on which the labourer was able and willing to work and•actually demanded employment, whether the employer was or was notable to provide him with work. Provided that an employer shall not bebound to provide for any labourer more than six days’ work in the week. ”Ordinance No. 1 of 1923, was a further amending law which defined anIndian Immigrant labourer as one who comes to do unskilled work eitherunder an agreement ” or “ assisted to come otherwise than by a relative ”find classifies unskilled work to include that of a “ kangany, sub-kanganyor labourer ”.
The effect of the Labour Ordinances prior to 1927, so far as they arematerial to the present matter, seems to be this. They provide thatnormally the contract of an Indian labourer shall be for a month andthen from month to month, and they contemplate his wages on such acontract being computed and payable either by the month, or by the day,but they do not contemplate his working for any less period than a day;they seem to establish a day as the minimum unit of time for workingand for being paid for working. Day is nowhere defined, its length isleft either to custom or to the agreement of employer and labourer, whoare also left free to contract as to the amount of wages to be paid.
These Ordinances are to be read and construed as one with OrdinanceNo. 27 of 1927. This provides for the appointment of Estate Boards who"‘shall from time to time …. fix minimum rates 6f wages forlime work performed on estates within its jurisdiction”, section 8 (1),and the “ minimum rate of wages ” when duly approved and publishedis to be “binding on all employers”, section 10 (1). By section 8 (2)Estate Boards may fix different minimum rates for labourers workingin different localities within their jurisdiction and may fix different rates fordifferent localities ”. Minimum rates of wages are defined by section. 2to mean “ the rates proper in cash or kind or both for an able-bodiedunskilled male labourer …. for time work”. This provision isan important alteration of the previous law. Under that, employerand labourer had complete freedom what wages to agree upon; now theamount can be fixed and regulated by law. By their Notification No. 23the Estate Boards stated as follows : —“ On all estates the rate fixed isthe minimum rate to be paid for a working day of nine hours (includingtime not exceeding one hour taken for the midday meal) ….Kalutara Revenue District, males 50 cents, females 40 cents. ” Section11 (1) says:—“Any person who employs or pays a labourer to whom a.
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minimum rate of wages …. is applicable at a rate of wages lessfavourable to the labourer than the minimum rate shall on conviction.. .. be liable to a fine”
Before attempting to state what the order contained in the NotificationNo. 23 means, it is necessary to set out section 3 of Ordinance No. 27 of1929. This is as follow’s: —
“ 3.(1) Where a labourer is employed at work other than time work
for a day or a successive number of days within any calendarmonth, the wages payable to him for that day or successive numberof days, shall not be less than the wages payable to such labourerfor such period at the minimum rates of wages prescribed under thisOrdinance.
(2) In the case of a labourer paid by the day, any period of workperformed by such person exceeding nine hours per day (including timenot exceeding one hour taken for the midday meal) shall be paidfor at overtime rates, and shall be in addition to the minimum ratesof wages payable to the labourer for a day’s work. Such overtimerates shall not be less per hour than one-eighth of the minimum ratesof wages fixed under this Ordinance ”.
It will be noticed that this is another narrowing of the freedom ofcontract which the earlier Labour Ordinances had left' undisturbed.Under those the employer and labourer could fix what length of workingday they choose; the law now seems to contemplate a day of not morethan eight working hours, any hour beyond that number to be paid forextra.
Now in interpreting the Notification which is the document on whichthis case turns, there are two things to be kept in mind, firstly that it ismade not under Ordinance No. 27 pf 1927 only, but under a series ofstatutes which must be read together, and secondly that due weight mustbe given to every word in it.
“On all estates the rate fixed”; the end of the sentence says whatthat fixed rate is, 50 cents for a man and 40 cents for a woman, being the“ minimum rates of wages fixed, for the area specified ”. What is to bethe quid pro quo for which this rate of wages is given ? The Notificationsays, “ for a working day ” of nine hours minus one for the midday meal.Then, taking the Notification as a whole, it seems to say that the payfor a working day of eight hours is to be 50 cents for a man and 40 cents fora woman and since it is a minimum not less than this is to be paid. But/ the words used must be defined. The Concise Oxford Dictionary says—“Working day, hours of the twenty-four devoted to labour”; theNotification says then that here eight hours of each day are to be devoted tolabour. The word “ rate ” in the same work is defined as “ statement ofnumerical proportion to prevail between two sets of things either orboth of which may be unspecified ”. Here both do seem to be specified.On the one side, a working day of eight hours, on the other 50 centswages for a man, 40 cents for a woman, in return for the eight hours’ workof the working day. Giving due weight to each word in the sentence,it seems to say that the labourer is to give, or to be able and willing togive, not less than eight hours’ work each day and to receive if a man notless than 50 cents in return, if a woman, not less than 40 cents in return.
MACDONELL C.J.—The Attorney-General v. Urquhart.401
If this Notification is examined along with the earlier Ordinances, thenit is to be remarked that they contemplate payment on a monthlycontract as here, by the month or by the day. Either method is lawfuland previous legislation seems to contemplate no other method of payingthe monthly labourer. (Ordinance No. 11 of 1865, section 4, mentions work“ by the job or by the journey” but does not legislate with regard to it.)Then the earlier Ordinances and Ordinance No. 27 of 1927, readtogether give the power to fix by Notification payment of wages by theday. If the Notification has done so, then it had the power to do sounless Ordinance No. 27 of 1927 takes away that power. It is necessarythen to examine that Ordinance further.
It speaks in section 2 (1) of “ time work” and in section 3 (1) of “ workother than time work”. The Concise Oxford Dictionary defines timework as work “ paid for by time, not piece work ”; then it seems to followthat “ work other than time work ” will be piece work. One can, then,use the phrase “ piece work ” as being a convenient equivalent of thephrase actually used in section 3 (1) “ work other than time work ”.
The phrase “ time work ” is a new feature introduced by Ordinance No..27 of 1927, into legislation which had hitherto spoken only of monthlycontracts and payment by the month or day, and the phrase should ofcourse have been defined and related to the previous law, since the statutein which it occurs has to be read with that previous law, and neglect ofthis elementary rule has occasioned most of the difficulties in this case.I will begin by examining section 3 (1). It provides for a laboureremployed on work other than time work—in effect, on piece work—for aday or a successive number of days within any calendar month. Thisis a clear reference to earlier legislation which is based on a monthly hiring,with payment by the month or by the day. (In the bygoing one maynote the looseness of thought of the legislator, since he takes no accountof a labourer on piece work for three days with a Sunday between the firstand second and a public holiday between the second and third; he hasnot been employed for “ a day ” but for more than one, and not forsuccessive days since others have intervened, then it could be arguedthat to him the sub-section did not apply.) The sub-section then statesthat the wages payable to. this labourer on piece work for the day orsuccessive days he has wbrked—day will be defined later—shall not beless than the wages he would have received for a day or successive daysat the minimum rates; in effect, although the labourer is on piece work,he is to be paid for the day. The Ordinance retains the unit of work,and payment for work prescribed by the earlier statutes; a wage calcu-lated at. and payable by the day and therefore, it would seem to followthat it contemplates wages being fixed by the day. It speaks of wagespayable for a day at the minimum rates of wages prescribed. Prescribedfor what? Having regard to what has gone before in the section and to-the definition0 of “ day ” that is to follow and not forgetting that section8 (1) empowers the fixing of minimum rates of wages “ for the time workperformed”, I would certainly say, prescribed for a day. Such aninterpretation agrees with what, has gone before in the section and withwhat comes after and is compatible with the definition of the phrase,time work, quoted to us in argument from the King’s English Dictionary,
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4i work paid for by the day or by the hour But the defence says, no,prescribed for each hour worked or specially contracted for. In replyone must point out that in the two other places where the phrase,minimum rates of wages, occurs in this section, it clearly means minimumrates of wages for a day and that only. This section in two out of thethree places where it mentions minimum rates of wages contemplatestheir being prescribed for a day and, if so, it seems difficult to hold that if.Notification No. 23 has fixed a rate of wages for a day then in so far as ithas done so, it is ultra vires; it has done what the section contemplatesbeing done. Section 8 (1) empowers Estate Boards to fix “ minimumrates of wages for time work performed ”. What does “ time work ” meanin this Ordinance? The only section that gives any answer to thisquestion is section 3 which contemplates a day of not more than eight hoursfor which day a minimum rate of wages can be prescribed. You mustread the two sections together, and if you find that one of them definitelysays in two out of the three places where it uses the phrase minimumrates of wages, that those minimum rates shall be fixed on the basis of aday of eight working hours, it is a strong indication, to say the least, thatthat is what the legislature meant to permit when in another section itempowered minimum rates to be fixed for time work. If those minimumrates had been fixed as the defence contends, namely, by the hour, onewould certainly have expected something in the statute suggesting thatwages could legally be fixed by the hour, but the only place in the wholestatute where a rate of wages by the hour is mentioned tells stronglythe other way, as will be seen. Minimum rates are to be fixed for timework and the only indication the law gives anywhere as to what timework can mean is in section 3 where it clearly mentions a day of eighthours with a minimum rate of wages attached. If that is so, then wehave a clear case of the phrase, minimum rates of wages, meaning mini-mum rates of wages for a day and, if so, then wages for a day. They arewhat the labourer is to get for his day, they are his wage for that day, andthey are a minimum, he is not to get. less.
Next one has to examine sub-section (2) of this section. Its mainpurpose is to define the length of a working day, a thing which earlierStatutes had left undefined, something to be fixed by agreement or custom,and it defines it as one of nine hours including one hour for the middaymeal, in effect eight working hours, also it provides for overtime paymentto the labourer who has done more than eight working hours. This again isa loosely drawn sub-section. Grammatically the only possible subjectto the words “ shall be in addition to the minimum rates of wages pay-able ”, &c., are the words “ any period of work performed by such personexceeding nine hours per day” which.do not make sense even; how cana period of time be added to a sum of money? It is necessary to insertwords so as to make it read “ which shall be in addition ”, in orderto give sense to the sub-section, ut res magis valeat quam pereat. Wewill assume such an emendation then, and continue the analysis ofthe sub-section. “In the case of a labourer paid by the day’-’; allIndian labourers are normally monthly servants and according to theStatutes prior to Ordinance No. 27 of 1927, payable by the month or theday. Ordinance No. 27 of 1927 does not profess to regulate. payment
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by the month, then we presume that, unless it is repealing previouslegislation as to payment by the day and substituting some othermethod of payment, it is regulating that payment by the day whichhas hitherto been the statutory alterhative to payment by the month.That is the conclusion one is forced to if one reads this sub-sectionas one is required, with the earlier legislation on the subject. Butwe must observe that section 3 has added a new category of labourer,the one “ employed at work other than time work ” and has provided thathe is to be equated with a category of labourer that the law has beenfamiliar with since Ordinance No. 11 of 1865, the labourer paid by the day.One sub-section speaks of the labourer “employed on other than timework”, then you would naturally expect the other sub-section to providefor the labourer employed on time work and this, I am satisfied, is whatit does. True, it describes him as a “ labourer paid by the day ” but bythe dictionary definition quoted earlier a labourer “ paid by the day ” is alabourer employed on time work, so there is no contradiction. Thedraftsman had at the end of the previous sub-section provided that hislabourer “ on other than time work ” should yet be paid by the day, and 'we may assume him not to have quite forgotten the terminology of earlierlegislation which provides for payment by the day, so for his laboureremployed on time work, the alternative to his labourer on other thantime work, he used the phrase “ labourer paid by the day ”, who is bydefinition a time worker. Does the law provide for yet a third category,the labourer employed on time work paid by the hour actually worked?It certainly does not do so explicitly, and I can discover nothing in itdoing so by implication.
One is now perhaps in a position to say what this sub-section readwith the rest of the legislation on the matter enacts. It provides for thecase of the labourer employed at work other than time work—the pieceworker—and equates him with the labourer paid by the day, and it saysthat each labourer shall be able and willing to give an eight-hour workingday, to receive in exchange a minimum wage fixed by law, and it saysthat the employer shall pay that minimum wage fixed by law and beentitled in return to require from the labourer an eight-hour workingday. That is the “ time work ” for which the Estate Boards under thepowers given them by section 8 (1) and in accordance with the law ingeneral and this section 3 in particular, are empowered to fix a mini-mum rate, and for which by this Notification No. 23 they have fixedsuch a rate.
What was the object of mentioning’ “ time work ” at all in this Ordi-nance? Taken in connection with the establishment of an eight-hourworking day and of overtime payment the reason is clear; it was tomake sure that there was power by law to prevent the employer workinghis labourer for too many hours each working day; he was to be ableto work him for eight hours at a fixed wage and if he wanted to work himfor longer, then to pay him more than that fixed wage. But, it isargued, though this may have been *the object present to the mind of thelegislator, still he has used language allowing the making of contracts withlabourers for a less number of hours than eight at a certain rate of wage,
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and if so he must be presumed to have had that intention. Whether thisis sojor not will be clearer when one has examined what the legislator hassaid on the subject of overtime.
The sub-section has fixed a working day and said that overtimerates are to be paid for any period of work exceeding that working day,in addition to what the worker earns for his working day: the words ofthe sentence seem quite clear, the overtime rates are to be “ in additionto the minimum rate of wages payable …. for a day’s work ”,
which can only mean the wage for that day’s work. Then the sub-section goes on to define overtime rates, they are to be “ not less per hourthan one-eighth of the minimum rates of wages fixed under this Ordinance ”.One must draw attention t<? the fact that this is the only place in theOrdinance where payment per hour is mentioned. If in this sentenceminimum rates of wages mean minimum wages, as those words do seem tomean wherever used in Ordinance No. 27 of 1927, then we can give to thisdefinition of overtime rates, a reasonable meaning. The minimum rateof wages is 50 cents for a working- day of eight hours. If a man works anhour extra, he is to receive for that extra hour a sum not less than one-eighth of the 50 bents which he is to receive for his eight hours working day,a reasonable enough rule. The defence saw the difficulty, saw too thatthis sentence in the sub-section is really destructive of its whole positionand said that the words “ per hour ” must be omitted from the sentence.Clearly, this method of interpreting a statute is not permissible—indeed,it was not persevered with. The sentence must be read as enacted withoutthe omission of inconvenient words, and it means that for an hour over-time a man is to get one-eighth of what he gets for a day. But there is afurther difficulty if minimum rates of wages are to be interpreted as thedefence desires. If minimum rates of wages in this sentence and else-where are to mean rate per hour, then the overtime rates payable wouldbe, not one-eighth of 50 cents but one-eighth of one-eighth of the same,i.e., one-eighth of 6& cents. These overtime rates are to “ be in additionto the minimum rates of wages payable to the labourer for a day’s work ”,and it is claimed for the defence that this condition will be satisfied bythe “ addition ” for the overtime hour worked, of the one-eighth of 6i cents,since for that overtime hour, he will receive, not the 6£ cents he receivesfor an ordinary working hour, but 6| cents plus one-eighth of cents.Since our currency does not go lower than cents, he would have to worka considerable amount of overtime before he got anything substantialfor it “ in addition ” to what he would have received for an ordinaryhour’s work. The suggestion is far-fetched, so I am hot obliged tosuppose that the legislature intended this unless strong reason is broughtto show that it did. Besides, the sub-section does not say any such thing.It does not say that overtime rates shall be higher than the rates for anordinary working day hour—“ in addition to ” does not mean at a higherproportion than—but that they shall “ not be less ”, and the words shall“ be in addition to the minimum rate of wages ” simply mean that theovertime earnings are to be extra to, are to be over and above, are to beadded to, what the worker earns for his ordinary working day. More-over, if “ in addition to ” meant “ at a higher rate- than ”, you would havethe sub-section contradicting itself, one sentence in it saying that
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overtime was to be paid for at not less than a certain rate, and anothersentence in it saying that it was to be paid for at more than that rate.By one sentence you could lawfully pay for overtime at a certain rate,*“ not less than ” it, but by the next you should have to pay for it atmore than that rate, otherwise you would have broken the law. One isnot obliged to suppose such a contradiction even in a sub-section, draftedat this has been, and indeed there is no contradiction, it gives perfectlygood sense ; overtime earnings are to be over. and above what the manearns for his ordinary working day and they are not to be at a less ratethan one-eight of what he earns for that ordinary working day.
But the arguments on this sub-section to which the defence was driven,are an integral part of its main contention that by this law you cancontract with a labourer for a less number of hours than eight at a minimumrate per hour contracted for. This ^lib-section was the stumbling block,and the defence was forced, first to propose cutting two words out of thesub-section altogether—two words that in themselves go far to destroyits case—and then, abandoning that attempt, to give to overtime ratesa meaning that was not the natural or normal meaning of the words asused in the sub-section and then—though I doubt this was noticed in the,argument—to make the sub-section contradict itself which on its naturaland normal interpretation it does not. If these arguments wereunsound—and they were necessary arguments, the defence could not beestablished without them—the conclusion follows that the case for thedefence is unsound likewise.
The argument for that case was most ably and ingeniously put. It wasin part an argument in the alternative; if one position was shown to bedifficult of acceptance, another was taken up. But in the main theargument was this:—Rate in the phrase, minimum rates of wages, meansratio. That rate or ratio fixed by the Estates Boards is fixed withreference to a day of eight working hours and from the day of this lengthyou can work out the rate, that is the ratio, for the number of hoursworked, so as to ascertain what is actually earned, and the time rate,which is what Ordinance No. 27 of 1927 provides for, enables this to be done.It is this which legalizes the present contract, one for a month, the pay to- be reckoned at 37£ cents for the day of the six working hours contractedfor. The rate of pay must of course be at the daily rate and not lessfor the particular part of the day, six hours, for which the labourer works.The contract which the respondents have made is one providing forpayment by the day, for services to be remunerated at the daily rateordered by the Notification, but the labourer is to work only six hoursand is to get six-eighths of 50 cents the daily rate for a man, of 40 centsthe daily rate for a woman. Then he has been paid at rates not “ lessfavourable …. than the minimum rate ”, and there has beenno contravention of the law section 11 (2). It was algo argued that thelaw nowhere says, that the labourer shall get so much pay per day or thatpay is to be reckoned on his working a whole day. The Ordinance uses thephrase “ time work ” as that with reference to which wages shall be fixed,and this means the period, hours, days or weeks, for which he is actuallyemployed. His wages are dependent on the total number of workinghours which he actually gives. Time work means time worked, in fact.
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One would pause here to inquire what “ time ” in the phrase “ timework ” can mean in Ordinance No. 27 of 1927, and one gets the answerthrough the word “ overtime'1’. That clearly is, any time worked beyondeight hours in a day. Then it would seem to follow that “ time ” istime worked up to eight hours in a day. Then the Ordinance makes“ time work performed ” to mean work by a labourer for eight hoursin a day, or ability and willingness to do so, and for this time work aminimum rate of wages is to be established. The Ordinance mighthave defined time work differently, but this is how it seems to havedefined it.
Now in connection with the argument that time work is time worked,certain significant admissions had to be made. Remarking that in theprovision as to overtime in section 3 (2) you get, explicitly, a true rate,i.e., a ratio with both factors expressed, time and money—it is the onlyplace in the Ordinance, as I have said, where pay her hour is mentioned—Mr. Perera admitted that to such a contract as respondent had made,overtime was riot applicable at all. The employer was at liberty to makea contract at so much per hour and here he had done so. Then this wasnot the case of a labourer “ paid by the day ” and consequently the over-time provisions of section 3 (2) did not apply. By making a contractfor ten hours to be worked in a day at the minimum rate per hour, it wouldbe possible legally to avoid the overtime provisions altogether. As Iread the Ordinance overtime is an essential part of its intention ; when itused the phrase “ time work ”, it did so with the intention to attach theincident of overtime to every contract. But at another time he argued,as has been said, that this would be a contract of “ pay by the day ”,reckoned at 37 £ cents per diem, and that if so, the requirement in section3 (2) that overtime rates shall be “ in addition ” to minimum rates ofwages, would be satisfied by paying the labourer for each hour he workedbeyond eight in number cents plus one-eighth of that 6i cents. Ihave discussed this argument above, and will only add that such a meaningdoes not seem to have been present to the mind of the legislator and thatit is not one which can be deduced from the language used. But in thisConnection, namely section 3 (2) and its provisions as to overtime andlength of working day, I would respectfully adopt the argument of Mr.Illangakoon that if the labourer is not to be paid for a whole day of ninehours minus one, if the intention of the law was to allow the employer tocontract with him for six hours work at a ratio, then there would be noneed for the employer to give him an hour off for the midday meal,a thing which the law expressly requires the employer to do. There maybe an answer to this argument but as at present advised I do not. see one.
The remaining admission was this, that while in the present case theemployer had contracted for a day of six working hours, it would yet havebeen legal for him to have contracted for a day of two working hours,to be paid for at the minimum rates, i.e., the labourer to receive 13 centsper working day of his contract. But this argument takes no account,it seems to me of the amount 50 cents, set out in the Notification. Itwould have been quite easy for the Estates Board in that Notification tohave said “ at the minimum rate of 6£ cents per hour ”, but it has not,it has said 50 cents, and some meaning must be given to what it has said.
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You can give a meaning to what it has said, viz., 50 cents, if you takeminimum rates of wages to mean the minimum wage the labourer is toreceive per working day, for on that meaning he will receive 50 centsper working day and not less; you give much less meaning to it, youempty it of most, perhaps all, of its content, if you insist that minimumrates of wages must mean ratio. The admission that an agreement for aworking day of two hours could be made, is what the argument for respond-ents has come to. Then a statute, which on any interpretation is passedto secure the Indian labourer something and not less for a wage, aminimum, has satisfied its intention by securing him 13 cents per day or,since the contract might be for a working day of one hour only, 6£ centsper day. These conclusions are surprising and at least compel you toscrutinize very carefully the interpretation by which they are arrived at.
Shortly, a scrutiny of that interpretation results in this. Assumingfor the sake of argument that the wording of the law allows EstatesBoards to fix the minimum rates of wages at so much per hour, leavingemployer and labourer to say how many hours are to be worked, theyhave not done so. It would have been quite easy to use the wordsnecessary for ordering that the labourer was to be paid at 6£ cents perhour of a day not to exceed eight working hours. To show, that they havenot fixed the minimum rates of wages at so much per hour, I would againinvite attention to section 3 (1) and (2) and ask how the section wouldconstrue on the argument for the respondents. The worker paid by theday is to receive not less per hour than the minimum rates of wages fixed,namely, 6& cents an hour. If he work two hours he will receive twice thatamount, if six hours, then six times that amount, if eight hours, eight timesthat amount, but his wages per day are an uncertain sum until it is knownhow many hours he has worked. Then the piece worker contemplatedin sub-section (1) asks to have his wages calculated for the day he hasworked. Sub-section (2) makes it clear beyond argument that he, apiece worker but paid by the day as the section says he must be, is entitledto be paid as for a day of eight working hours ; the provisions about over-time do establish that proposition for the piece worker, ill-expressedthough the sub-section may be. Then you will have in one and the samesection two kinds of worker, paid by the day both of them, yet paid on adifferent basis—the worker by the day who is also a piece worker gettingpaid by the day of an eight-hour basis, that is receiving the whole 50 cents,and the worker by the day who is not a piece worker getting paid by theday on a basis other than an eight-hour one, that is by the number of hourshe has worked, that is receiving a proportional fraction of the 50 cents.This is an anomaly—an inelegantia the Roman lawyers would call it—for which I can find no support in this section or in any other in the law.The respondents saw the force of this, and postulated yet a third categoryof labourer, other than the worker paid by the day who is a piece workerand other than the worker paid by the day pure and simple, namely, thetime worker paid by the hour, and for the creation of this new entityagain I can find no support either in this Ordinance or in any other of thelaws with which it has to be read.
There was yet the further argument for the respondents to which theywere forced by the logic of their position. If the' Notification did
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establish a daily wage of 50 cents—they denied it did so, but if it did—then the daily wage was ultra vires, and they supported this position byreference to certain English Statutes and the cases decided on them.The most important of these was the Agricultural Wages (Regulation)Act 1924 and Seabrook & Sons v. Jones', decided thereon. That Actgave power by section 2 (1) to Wages Committees to “fix minimum ratesof wages for workers employed in Agriculture for time work” withpower also to fix them for agricultural workers on piece work, and bysection 2 (2) to vary such minimum rates “ according as the employmentis for a day, week, month or other period, or according to the number ofworking hours or the conditions of employment or so as to provide for adifferential rate in the case of overtime Section 7 (1) says “ any personwho employs a worker in agriculture shall in cases to which the minimumrate is applicable pay wages to the worker at a rate not less than theminimum rate and if he fails to do so shall be liable on summary convic-tion ” to a fine, and section 7 (2) is identical in terms with section 11 (2) ofOrdinance No. 27 of 1927, and enables an order to be made for paymentof the difference between the amount which ought at the minimum rate-to have been paid and the amount actually paid. It will be noticed thatthis Act, like Ordinance No. 27 of 1927, speaks of minimum rates of wagesand of time work but it must also be observed that by section 2 (2) itspecifically gives power to fix these rates “ so as to vary according asthe employment is for a day, week, month or other period or accordingto the number of working hours ”. Perhaps the draftsman thought thatwithout this sub-section there would be no power to fix wages accordingto the day, the week or the number of working hours. What would havebeen the effect of the Act wanting that sub-section it is unnecessary todecide. But the fact that it was thought necessary to insert it rathertells against the argument of the respondent that, since Ordinance No. 27of 1927, unlike the English Act, gives, no power to provide rates accordingto the number of working hours, Estate Boards have fixed a rateapplicable to every kind of contract “ which rate must be one that takesaccount of the number of hours actually worked the argument to uswas put in these words. The inference is the other way, namely, thatwithout the power in section 2 (2) of the Act of 1924 to fix rates accordingto the number of working hours, the Committees contemplated by thatAct would not have had the power to fix them on that basis and thatsince Ordinance No. 27 of 1927 does not give this power to fix ratesaccording to the number of working hours, Estate Boards cannot fix arate that takes account of the number of hours actually worked but mustfix it as the different Ordinances read together empower them to do,namely, by the day, which is what they seem to have done.
Seabrook & Sons v. Jones (supra), a case decided under the Act of 1924,was to this effect. Clause 1 of an order issued under that Act prescribedthat wages “ should not be less than wages at the following minimum rates,male workers 20 years of age and over, 30 shillings per week of 50 hoursin summer and 48 in winter ”. Clause 2 of that order said “ Where awhole-time male worker is employed by the week or any longer period,and the hours of work agreed between the worker and the employer in
» (1929) 1 K. B. 335.
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any week (excluding hours of overtime employment) are less than 50 insummer or 48 in winter, the rate of wages applicable to that worker shallbe such as to secure to the worker the wages which would have beenpayable if the agreed hours had been 50 in summer and 48 in winteras the case may be ”. It was argued that this clause was ultra vires andthat in a week in which a public holiday, Good Friday, occurred, it waslawful for the employer to pay at the rate of 30 shillings for fifty hoursbut paying on a less number of hours, those that the labourer would haveworked on the Good Friday being deducted and the pay for the same.In its facts then, Seabrook & Sons v. Jones (supra) was very close to the pre-sent case. Hewart C.J. said as follows, p. 340:—“There is nothing inthe Act to say that the committee may fix the rate per hour but not therate per week ; on the contrary, it provides expressly that such minimumrates may be fixed by the committee so as to apply universally to allworkers or to any special 'class of worker or any special area or to anyspecial class in a special area, subject to any exceptions which may bemade, and so as to vary, according as the employment is for a day, week,month or other period or so as to provide a differential rate in the case ofovertime. The order, with a particular part of which this case has to do,is an order relating to a whole-time male worker employed by the week.Addressing themselves to the task of fixing a minimum rate for. such aworker, the committee came to the conclusion that if he is twenty-oneyears old or older, he ought to have at least 30 shillings a week,that week being normally one of fifty working hours. Then it immedi-ately occurred to their minds that although in practice there was the week,there might be an agreement for what was nominally a week, but whichinvolves less than fifty hours of employment or actual work, and so theyprovided that, even so, that worker should have his wages at the minimumrate per week secured to him, because in his case- the rate of wagesapplicable to him should be made such as to secure to him the amountof wages which would have been payable if the agreed hours had beenfifty. In my opinion there is nothing ultra vires in that part of theorder ”—sc. clause 2 set out above—“ nor do I think that that partneeds to be invoked for the purpose of justifying what was contendedhere, namely, that the agricultural worker was a male worker of full ageemployed by the week, and as such was entitled to the minimum wageper week. It matters not that in the particular week there came GoodFriday ”. Avory J. put it thus : —“ I am of the same opinion. Once it isadmitted that the committee had power to make or fix the rate of wagesof 30 shillings per week for male workers of twenty-one years and over,I think it cannot be said that they were acting ultra vires in providingthat although normally 30 shillings a week was to be paid for fifty hourswork in summer and forty-eight hours in winter, if in any particularcase the employers chose to agree that the worker need not work the wholeof the fifty hours or forty-eight hours, as the case might be, that then,in that case, the man should still be entitled ‘to his 30 shillings for theweek. Having come to that conclusion, I can see nothing ultra viresin these regulations taken as a whole; and therefore, I agree that theappeal fails ”. It will be noted that clause 2, set out above, preventing
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payment on something less than fifty hours per week because of an agree-ment to work less, was not relied on, the decision would have been thesame without it.
Jones v. Harris a case under this same Act of 1924, was also cited tous, but does not seem to me to carry the present case much further. Itdealt with minimum rates of wages varying with the age of the worker,and ruled where the onus lay of proving what that age might be.
Two cases, Board of Trade v. Roberts2 and France v. Coombes & Son",decided under the Trade Boards Acts 1909 and 1918, were cited to us.Both these cases dealt with workers in certain trades—tailoring andboot making—the regulations as to wages in which contemplated aworker being “ engaged during the whole or any part of his time ” onwork actually connected with his trade, but also being engaged, the sameworker, for part of his time on other work, clerical for instance, notdirectly connected with his trade, and these cases dealt with the adjust-ment of his pay for the hours he was engaged on each class of work. Onthe Acts there in question there could be no doubt that minimum rates ofwages had to be determined with reference to the hours worked butthese cases cited do not decide that under every Statute where thephrase minimum rates of wages occurs it must be so interpreted.
The case Hampton v. Smith*, one brought under the Com ProductionAct 1917, which provided for “ wages …. at a rate not less thanthe minimum rate as fixed under the Act ”, seems to decide this, that if anemployer engage a worker for a year at a wage of so much a year, equiva-lent to so much per week, he is hot required to pay that worker his pro-portionate wages week by week; he may pay instalments from time totime, and the balance at the end of the year’s hiring, and will commitno offence if on receiving such balance the worker has not received lessthan wages at the minimum rate:I doubt it throws much light on the
present case.
A case much relied on for the respondents here was Davies v. GlamorganCoal Co.8, since it contained a very lucid explanation by Buckley L.J. ofthe meaning of “ rate ”. It is unnecessary to set out the facts in that case,but it had been argued that the Coal Mines (Minimum Wage) Act 1912under which the case was brought did not say that the District Boardscontemplated by it were to settle a minimum daily wage but to settle“ minimum rates of wages ”, and it was to this contention that BuckleyL.J. was addressing himself in his explanation of the term “ rate ”, and hesays “ I find that in this Act the minimum rate, the thing which has to bedetermined for the purposes .of the Act is contemplated …. asbeing a daily rate ”. The two other Lord Justices said nothing about thesubject * of “ rates ” and determined the appeal on other grounds. Idoubt that this case either is of much importance or assistance in regardto the case now before us ; it was not, one may note, referred to inSeabrook’s case (supra).
On the interpretation of the law, which I find myself driven to accept,the accused will then have been guilty of paying the persons mentionedin the charge at a rate of wages less favourable to them than the minimum* (1927) 1 K. B. 425.3 (1928) 2 K. B. SI.
3 85 L. J. K. B. 79.* 89 L. J. K. B. 413.
3 (1814) 1 K. B. 674.
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rate. If so, then this appeal must be allowed and the case sent back' tothe Magistrate with the direction to convict and to make ofder for thepayment to the labourers mentioned in the charge of the differencebetween the amount which ought at the minimum rate to have been paidthem and the amount actually paid. As this has been a test case broughton a body of law, one portion of which—Ordinance No. 27 of 1927—wasdifficult of interpretation, the fine inflicted must be a purely nominal one.
What the effect of this decision may be is beyond my duty to inquire.It may be that it will compel some estates to close down altogether,thereby increasing the amount of unemployment, or at least compel themto dismiss from their employ some of their present-labourers, whereby thesewill be getting “ no bread ” instead of the three quarter loaf which thecontract challenged in this case secures to them and with which, as far asI can judge from the evidence, they seem moderately contented. But theseare questions with which I am not concerned. I have done the taskimposed upon me when I have construed an ill-drawn piece of legislationaccording to such light as is given me ; per Vaughan J. in Harrison v.Burwell “ I must in the first place premise that perhaps if we the Judgeshad been the makers of the law this question had not been ; but we areto proceed upon the laws as made, and cannot alter them. This is not athing of our promotion and this I speak to satisfy such as might objectagainst us ”.
Garvin S.P.J.—
The respondent to this appeal was charged with having committedan offence made punishable by section 11 (1) of Ordinance No. 27 of1927, in that being the Superintendent of an estate known as Perthestate, situated in Horana, he paid three labourers named Thangaperumal,Mayandi, and Nallamma, respectively, to whom minimum rates of wagesfixed under Chapter I. of the said Ordinance were applicable, at ratesof wages less favourable to them than the prescribed minimum rate ,of wages applicable to each of them.
In a Notification bearing No. 23 published in the Government GazetteNo. 7,676 of November 30, 1928, the rates fixed by the Estate Wages Boardand approved by the Governor are set out and it appears therefromthat “ On all estates the rate fixed is the minimum rate to be paid fora working day of nine hours (including time not exceeding one hour takenfor the midday meal)”. The rate for an adult male is 50 cents and fora female labourer 40 cents.
Admittedly, the wages paid during the period to which the chargesTelate work out at less than 50 cents for Thagaperumal and Mayandiwho are adult males and less than 40 cents in the case of Nallamma anadult female labourer, for each day in which work was performed.Since May, 1931, in the case of Perth estate, the working day waslimited to six hours for which the labourers were paid a wage computedat the rate of six-eighths of 50 cents or six-eighths of 40 cents according asthe labourer was an adult male or a female, plus a bonus computed onthe mount of latex collected by the labourer in excess of a prescribedminimum. No labourer was required to work longer than six hours.
1 2 Ventris 10.
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In every instance the labourer received his wages for six hours and someof them in addition the bonus calculated as above. This arrangementwas accepted and has been acquiesced in by the labourers.
The defence to the charge was that the wages paid in every instanceworked out per hour amounted to the same or a little more than theamount per hour computed at the minimum- rate fixed by the EstateWages Board and could not therefore be said to be at a less favoura-ble rate.
The Police Magistrate upheld this defence and acquitted the accused.The Attorney-General appeals. This appeal was first listed before me.As the argument proceeded, it became increasingly evident that thematter, because of its great public importance, its difficulty and the desireof both parties to obtain an authoritative decision which would finallysettle the law on the point, was one which should be referred to a benchof three Judges. After reference to the Chief Justice, it was duly listedand argued before a bench so constituted and it only remains for me asa member of that bench to examine the point which was very fully andably argued and set down my reasons for the conclusion at which Ihave arrived.
A perusal of the evidence upon record discloses a conflict upon certainquestions of fact but the Solicitor-General was content to accept thefindings of the Magistrate and to invite a decision on the basis of therespondent’s allegations as to the facts.
The labourers referred to in the charges are “ labourers ” within themeaning of Ordinance No. 27 of 1927, in that they are Indian labourerswhose names are “ borne on an Estate Register ”. Their names havebeen entered in the check roll of the estate and they have, I gather,received advances of rice. There being no express stipulation to thecontrary, the contract with each of them, it is admitted, must be takento be a contract for hire and service for a period of one month, renewablefrom month to month and which must be taken to be so renewed unlessone month’s previous notice be given by either party to the other of hisintention, to determine the same at the expiry of a month from the dayof giving such notice, vide section 5 of Ordinance No. 13 of 1889. But itis a term of the contract that the working day shall be one of six hoursand the wage for each such working day 37£ cents in the case of maleand 30 cents in the case of female labourers.
Now the law gives to every labourer under monthly contract, thoughpaid at a daily rate, a right so long as he is able and willing to work tosix days’ work in every week or, if the employer is unable or unwillingto give him work, to six days’ pay. This statutory right is admittedand recognized by the employer in the case before us and no questionbased upon such right or its infringement arises. It is hardly necessaryto say that employer and labourer alike are free to make, what contractthey please so long as it involves no infringement of the law. Priorto the date when Ordinance No. 27 of 1927, came into operation therewas nothing in the law to prevent a contract being made for hire andservice for a month with a “ labourer ” and here and throughout thisjudgment, I use the word labourer in the sense of a labourer within the
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meaning of the Ordinances Nos. 13 of 1889 and 27 of 1927—at a wageto be computed at a daily rate of 37£ cents for a working day of six_hours.
There is nothing in Ordinance No. 27 of 1927, to which a stipulationthat the working day should be one of six hours is obnoxious. Indeed,it would need a very specific declaration to that effect before one canascribe to the Legislature an intention to interfere with the freedom ofcontract to the extent that a labourer may not stipulate for a six-hourday or that such a stipulation if made by the parties to a contract ofhire and service is to be treated as a nullity.
The only provision of Ordinance No. 27 of 1927, which has a bearingon the question of the contract between employer and labourer issection 11 (1) which is in the following terms : —
“ Any person who employs or pays a labourer to whom a minimumrate of wages fixed under this chapter is applicable at a rate of wagesless favourable to the labourer than the minimum rate shall onconviction by a Police Magistrate be liable to a fine not exceedingone hundred rupees for each offence ”.
The Ordinance therefore leaves the parties free to make their owncontract subject to the limitation that the employer shall not employor pay the labourer at a rate less favourable to him than the mini-mum rate._.
Since there is no objection to a contract for k si^vhour working daythe respondent has not offended against section 11 (1/^unless it be heldthat employment or payment at 374 cents in the case of an adult malelabourer and 30 cents in the case of an adult female for a six-hour, workingday can be said to be at a rate less favourable to the labourer than theprescribed minimum rate of 50 cents for a working day of nine hours(including time not exceeding one hour taken for the midday meal), i.e..of eight working hours. If the word “ rate ” in the expression “ mini-mum rate of wages ” means the ratio proportion or relationship betweentime worked or time which a labourer has contracted to work on the .one side and remuneration on the other, by and in accordance withwhich the actual amount earned or payable for a period of time whicha labourer has worked or contracted to work is to be ascertained, thenthe respondent has not offended against the provision of section 11 (1)..For how can it be said that a male labourer who gives six hours of histime at a rate of 6-4 cents per hour is paid at a rate less favourable tohim than a labourer who gives eight hours of his time also at the rateof 64 cents per hour ? It may be more favourable to a labourer in thesense that he would earn more by working longer, that he should makea contract for a day of eight hours. But it is at least conceivable thathe may prefer a shorter working day with more free time to be spent,possibly to his greater advantage in other occupations, and certainly,as he pleases, earning less per day in the aggregate rather than worklonger hours and earn more at the minimum rate.'
It was pressed upon us by the Solicitor-General that the object ofOrdinance No. 27 of 1927, was to secure for this class of labourer aminimum living wage and that this purpose has been achieved by the
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GARVIN S.P.J.—The Attorney-General v. TJrquhart.
provisions of this Ordinance and the fixation by the Estate Wages Boardacting in pursuance of the powers conferred on them of a daily wagevarying only with the sexand ageof thelabourer. This Ordinance, it
is said, gives effect to theintentionof theLegislature tosecure for the
worker as has been successfully done in other countries that he shallreceive such a wage as is not less than that amount which, after inquiryand consideration a Board representative both of employers and Indianlabourers working on estates, fixes as the minimum living wage.
There are provisions in the Ordinance which indicate that it wasenacted in the interests of the Indian labourer and was designed tosecure for him a “ minimum rate of wages ” and there is thus createdin one’s mind a general impression that it was the ultimate object of theLegislature to secure to this class of labourer a minimum living wage.But we are concerned primarily with the language employed by theLegislature from which we mustgatherits intentionand also what
provision it has made forcarryingout itsintention andthe method by
which it proposes to reach the end in view. If the provisions enactedby it for the purpose of carrying out what we suppose to be its intentionshould appear to be inadequate for fully carrying that intention intoeffect, it must be left to the Legislature to make such further provisionas it may deem necessary.
The Ordinance provides for the appointment by the Governor of anEstate Wages Board for any revenue district. The Board is to becomposed of the Chairman (a public officer nominated by the Governor),and four members of whom two shall be employers of Indian labourersworking on estates, the remaining two being selected to represent thelabourers. Every Estate Wages Board is empowered from time to timeand as occasion may require to fix minimum rates of wages for time workperformed on estates within its jurisdiction. Provision is made for thenotification to the public of the intention of the Board to fix minimumrates of wages or alter them where they have already been fixed.
The decision of the Estate Wages Board has to be communicated to• the Chairman of the Board of Indian Immigrant Labour and that Boardis empowered to confirm, vary, or cancel such decision, is required topublish the decision and may not confirm, vary, or cancel the same untilafter the expiration of one month from the date of such notification.
Finally, it is provided that a minimum rate of wages or the cancellation•or the variation thereof shall not take effect until it has been approvedby the Governor.
Before one can determine what is comprised in the power to fixminimum rates of wages it is necessary to ascertain what is meant bythat expression. The Legislature has defined it as follows :—
“ Minimum rates of wages ” means the rates proper in cash or kindor both for an able-bodied unskilled male labourer above the age ofsixteen years, for an able-bodied unskilled female labourer above theage of fifteen years, or for an able-bodied child of either sex for time work—-vide section 2 (1).
If the words “ for time work” be given their proper effect minimumTates must have some relation to time worked or to time which a labourer
GARVTN S.P.J.—The Attorney-General v. Urquhart.
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is under contract to work. Indeed section 8 (1) in terms requires EstateWages Boards to fix minimum rates of wages for time work performedon estates. Time work is work which is paid for by the time actuallyoccupied by the labourer in doing it or by the time which the labourerhas contracted to give to his employer and it is almost impossible toconceive of either a wage or rate of wages for time work which has norelation at all to either of these factors.
Apart from the factors of sex and age, Estate Wages Boards areempowered by section 8 (2) to fix different rates for wages in differentdistricts and for different classes of labourers. It would seem thereforethat the “ minimum rates of wages ” to be fixed may only vary inaccordance with the factors of age, sex, locality, and the “ class ” to whichthe labourer belongs. Minimum rates for time work once fixed forany district remain constant and in force until cancelled or altered.The minimum rates for the district in which Perth estate is. situatedhave been fixed by the Wages Board and the rates as fixed vary onlyaccording as the labourer is a man, woman, or child and have been fixedfor a working day of nine hours (including one hour taken for themidday meal).
Thus the combined effect of the Ordinance and the minimum ratefixed under the authority of the Ordinance is that a sum of 50 cents isassured to a labourer for a “ working day ” consisting of eight workinghours. The method by which this end has been secured is by fixing aminimum rate at which the labourer shall be paid.
The greater part of the argument addressed to us turned on themeaning and implication of the words “ minimum rates of wages ”. Itwas contended on the one hand that in this context and throughout theOrdinance “ minimum rate of wages ” meant minimum wage and, percontra, that both in the Ordinance and in the decision of the EstateWages Board, the expression meant and could only mean the rate byand in accordance with which the total amount payable to a labourerwas to be computed. For the purpose of fixing and expressing a minimumrate of wages for time work the Wages Board necessarily had to selecta unit of time worked or agreed to be worked and the unit of moneywhich it decided should correspond to that unit of time. It has selecteda “ working day ” which it has defined and a sum of 50 cents as theamount of money which it deemed to be the minimum which should bepaid for such a working day. It is urged on the one side that the twounits selected for the purpose of expressing the rate are susceptible ofsubdivision, even as they are capable of multiplication, for the purposeof ascertaining what is payable to a labourer for time worked or timewhich he had contracted to work and for which he is entitled to be paid.On the other hand it is contended that the minimum rate so fixed maynot be subdivided, that although for the purpose of ascertaining theamount payable for a period of more days than one the unit of moneymust be multiplied by the number of units of time, it is not permissibleto divide the unit of money by the number of working hours in the“ working day ” contemplated for the purpose of ascertaining the rateat which a labourer has been paid on any day on which work has beenperformed.
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GARVIN S.P.J.—The Attorney-General v. Urquhart.
If the latter of these two views is to prevail then it follows that whetherthe “ working day ” consists of eight hours or less a labourer is entitledto be paid 50 cents. Two questions naturally suggest themselves—first,has the Wages Board power to fix a minimum wage payable to a timeworker for every day upon which he works quite irrespective of theactual time -worked or of the time which the labourer had contractedto give his employer and second, whether assuming the existence of sucha power the Board has fixed such a minimum wage per day.
In support of this appeal it was urged that the expression “ minimumrates of wages ” and “ minimum wages ” were convertible terms andthat the power to fix a “ minimum rate of wages ” was power to fix aminimum wage for time workers. To this I cannot assent. Even the•definition clause speaks of the expression “ minimum rates of wages ”as “ the rates proper in cash or kind or both for an able-bodied unskilledlabourer …. for time work ”. And section 8 (1) only empowersWages Boards to fix minimum rates of wages for time work performed on-estates. It does not authorize such Boards to fix wages for time workersbut rates of wages for time work performed on estates.
Section 3 of the Ordinance, which every one engaged in the case-agrees is not happily worded, was supposed to bear out the contentionthat minimum rates of wages and minimum wages were convertibleterms. But the language of sub-section (1) of that section makes a cleardistinction between the two, for what it says is, that “ where a laboureris employed at work other than time work for a day or a successivenumber of days within any calendar month the wages payable to himfor that day or successive number of days, shall not be less than thewages payable to such labourer for such period at the minimum rates ofwages prescribed under this Ordinance ”.
As to sub-section (2) of section 3, all that can be said with any confidenceis that it may fairly be gathered that it was the intention of the Legis-lature that a time worker should be paid extra for any period of workperformed exceeding nine hours per day (including time not exceeding•one hour taken for the midday meal).
It is not only that the language used shows an appreciation of the■difference between rates of wages and wages but that the Legislaturehas expressly and explicitly stated that unless the context otherwiserequires “ Minimum rates of wages ” shall mean “ rates proper ….for time work ”. There is nothing in the context which requires orjustifies the interpretation of the term “ minimum rates of wages ” insection 8 (1) as “ minimum wages ”. Indeed, if proper effect be givento the all important words “ for time work ” the matter is concludedfor what is a “ wage for time work ” but the rate at which time workedor agreed to be worked is to be remunerated. The power conferred ispower to fix “minimum rates of wages for time work” not power to fix'* wages for time workers ” which need have no relation to the time•actually worked or to the time specified in the contract of employment.
It is evident that the Legislature, assuming that its object was tosecure for these labourers a minimum living wage, decided to reach theend in view through the medium of a minimum rate of wages.– IiT this,
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GARVIN S.P.J.—The Attorney-General v. Urquhart:
it is not singular, for such of the Acts of the British Parliament as werereferred to in the course of argument have attempted to reach the sameend by the same means.
The Agricultural Wages (Regulation) Act 1924, which there is goodreason to believe was the model upon which Ordinance No. 27 of 1927,was based expressly directs as follows: —
“ In fixing minimum rates of wages a committee shall, so far aspracticable, secure for able-bodied men such wages as in the opinionof the committee are adequate to promote efficiency and to enablea man in an ordinary case to maintain himself and his family inaccordance with such standard of comfort as may be reasonable inrelation to the nature of his employment”—vide section 2, sub-section
.
There is in this provision a clear indication that the object in viewwas to secure to a labourer a living wage and that the means by whichthat object was to be attained was by the fixation of minimum rates ofwages for time work. There is no similar provision to the one quotedabove in our Ordinance but it seems clear that our Legislature has alsodecided to attempt to reach the object in view through the medium ofminimum rates for time work.
If therefore all that an Estate Wages Board may do is to fix “ minimumrates of wages for time work ” and not a wage for time workers, withinwhat limits and in accordance with what factors may those rates vary ?As a result of the combined effect of the definition clause and section 8(2) of the Ordinance it would seem that such minimum rates may, ashas been said earlier, only vary in accordance with the age and sex ofthe labourer, the locality in which he is employed and with the “ classof the labourer”. These are the factors in relation to which the ratemay vary but the rates in terms of the definition clause and by section8 (1) must be rates “for time work ”. In short what the Legislaturehas said to Estate Wages Boards is that they may fix minimum ratesof wages for time work variable only in accordance with the age, sex,locality, and “ class ” of the labourer. It is by no means clear whatis meant by “ class of labourer ” or whether it implies anything morethan a classification based on sex and age. But whatever it may mean,once the minimum rates of wages for an adult male, an adult femaleand a child “ for time work ” have been fixed the powers of the Boardare at an end except in so far as they may cancel or alter that rate.Inasmuch as the Board is required to fix a minimum rate for time workthe rate as has been observed earlier must have some relation to timeworked or time for which the labourer has agreed to work.
The minimum rates though they may vary in accordance with thesefactors must in each case have a definite relationship to time- workedor time which the labourer has agreed to work and therefore must beexpressed in units of time and money. But whatever unit of timemay be selected the rate is merely the relationship between time workand remuneration in money. Nowhere is it said that an Estate WagesBoard may say to the labourer you shall work for eight hours a day orany other period or to the employer you shall employ a labourer for
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418GARVIN S.P.J.—The Attorney-General v. Urquhart.
eight hours a day or pay him as if you had employed him for eight hoursnotwithstanding that you have only engaged him and he has only workedfor six hours.
It is worthy of note that in the Agricultural Wages (Regulation) Act1924, (14 & 15 Geo. V. c. 37) after stating that the committee shallfix minimqm rates of wages for workers employed in agriculture fortime work the Act proceeds as follows : —
Section 2 (2).—“ Any such minimum rates may be fixed by theCommittee so as to apply universally to all workers employed in agri-culture in the county for which the Committee act or to any specialareas in the county, or to any special class in any special area subjectin each case to any exceptions which may be made by the Committeefor employment of any special character, and so as to vary accordingas the employment is for a day, week, month or other' period, oraccording to the number of working hours or the conditions of theemployment or so as to provide for a differential rate in the case ofovertime. ”
The expression “ Employment ” in the act unless the context other-wise requires means employment under a contract of service orapprenticeship.
Thus power has been conferred on the Committee to fix minimumrates “ so as to vary according as the employment ”—i.e., the periodof employment under a contract of service—“ is for a day, week, monthor other period, or according to the number of working hours … . ”
It is said that all this and apparently even more is implicit in the powerto fix minimum rates of wages vested by our Ordinance in Estate WagesBoards since these Boards, it is contended, have the power to fix a wagepayable to a labourer for any period irrespective of whether the numberof hours the labourer works or is under contract to work is the same orless than the hours specified by the Board when fixing the rate.
But inasmuch as in the English Act, power having been conferredon the committee by section 2 (1) to fix minimum rates of wages fortime work, it was nevertheless thought necessary to supplement whathad been said in that clause' by a further provision, section 2 (2),specially vesting in the committee power, inter alia, to fix rates so asto vary according as the employment is for a day, week, month or otherperiod, or according to the number of working hours, it might fairly bepresumed (a) that the power to fix minimum rates for time work con-ferred by section 2 (1) was not deemed sufficient of itself to secure tothe labourer a living wage and (b) that power to fix minimum rates ofwages for time work means power to fix the relationship between workwhich is paid for by the time and remuneration in accordance withwhich the amount earned for a period of time work is to be computed.Power to fix such time rates when supplemented by power to fix rates“so as to vary according to the period of the contract of employmentor according to the number of working hours ” enables the Committeethrough the medium of varying rates to secure for the labourer a livingwage as enjoined by section 2. (4) of the Act.
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Here I would repeat tljat the rates to be fixed by Estate Wages Boardsmay only vary according to the sex and age of the labourer, the localityin which he works, and the “ class of the labourerIn an order of the Agricultural Wages Board dated October 25, 1927,are embodied certain rules made by a Wages Committee in exercise ofthe power conferred by the Act of 1924 and, among them, are thefollowing:—
Clause 1.—The wages payable for employment in summer and winter(as hereinafter defined) shall be not less than wages at the followingminimum rates (a) male workers twenty-one years of age and over30 shillings per week of fifty hours in summer and forty-eight hours inwinter.
Clause 2.—Where a whole-time male worker is employed by the weekor any longer period and the hours of work agreed between the workerand the employer in any week (excluding hours of overtime employ-ment) , are less than fifty in summer and forty-eight in winter, the rateof wages applicable shall be such as to secure to the worker the wageswhich would have been payable if the agreed hours had been fifty insummer and forty-eight in winter.
The first of those clauses is clearly referable to the power to fix mini-mum rates “ so as to vary according as the employment (i.e., the contractof employment) is for a day, week, or month, &c. the second is madein exercise of the power to fix rates so as to vary according to the numberof working hours. As the combined effect of the two clauses, there isassured to a labourer a wage of 30 shillings per contract week, computedat the minimum rate of 30 shillings for fifty hours where the agreed hoursare fifty, and computed at a higher rate where the agreed hours are lessthan fifty. In both these clauses and in clause 2 in particular thedistinction between “ rates ” and “ wages ” is clearly marked andmaintained and the object aimed at which is expressed to be to securefor the labourer a minimum wage has been reached through the mediumof varying minimum rates.
The case of Seabrook & Sons, Ltd. v. Jones1 turned upon the effect ofthese two clauses. "The appellants”, I quote from the head note,"employed one T as an agricultural labourer by the week of fifty hoursat 30 shillings per week. On Good Friday, T, according to custom, wasnot required by the appellants to work, and, in consequence, they refusedat the end of the week to pay him his full weekly wages, deducting theportion appropriate to that day, but gave him, according to their custom,a small bonus instead”. It was held that T was entitled to be paid 30shillings for the Good Friday week.
As there appeared to-be some question as to the terms of the contractbetween the appellants and T, I quote further from the report—‘ Nowritten agreement as to service, hours of work, rates of pay, or othermatters was entered into, but Twinn worked and was paid in accordancewith the appellants’ customary hours of work and rates of pay. Duringa normal week from Saturday to Saturday (in summer), Twinn wasrequired by the appellants in accordance with the custom of their
i (1929) 1 K. B. D. 335.
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GARVIN S.P.J.—The Attorney-General v. Urquhart.
business tu work fifty hours …. The appellants paid him by theweek 30 shillings, less 9 pence national health insurance, being at therate of 7 1/5 pence per hour. On March 30, 1928, the appellants posteda notice, which was seen by Twinn, as follows:“ Good Friday,
April 6Employees will not be required on this day and
work cannot be found for them.”
The Justices held that a valid variation of the contract had beenconstituted by the notice and its acceptance and held that clause 2 ofthe Order applied and alternatively that if it did not constitute a validvariation of the contract clause I applied—the labourer in either casewas entitled to 30 shillings.
Lord Hewart who held both parts of the Order to be intra vires madethe following observations: —
“ Addressing themselves to the task of fixing a minimum rate forsuch a worker, the committee came to the conclusion that if he istwenty-one years old or older, he ought to have at least 30 shillings aweek, that week being normally one of fifty working hours. Then it im-mediately occurred to their minds that although in practice – that wasthe week, there might be an agreement for what was nominally a week,but which involved less than fifty hours of employment or actualwork, and so they provided that, even so, the worker should have hiswages at the minimum rate per week secured to him, because in hiscase the rate of wages applicable to him should be made such as to secureto him the amount of wages which would have been payable if theagreed hours had been fifty. In my opinion there is nothing ultravires in that part of the order. Nor do I think that that part needsto be invoked for the purpose of justifying'what was contended here,namely, that the agricultural worker was a male worker of full ageEmployed by the. week, and as such was entitled to the minimumwage per week. It matters not that in the particular week therecame Good Friday ”.
The agreement was for a fifty hour week and not a “ nominal week ”.Evidently the Lord Chief Justice did not think that a valid variationof that agreement had been constituted by the notice that there wouldbe no work on Good Friday.
Avory J. who concurred affirms the validity of both parts of the orderand in that view the labourer would of course be entitled to 30 shillingsfor the week whether a valid variation of the agreement had beenconstituted or not.
The point I desire to emphasize is that the first part of the Order bywhich a minimum rate for a Week of fifty hours was fixed was not deemeda bar to an agreement for a week of less hours than fifty and the nextis the recognition of the necessity to provide for the case of such a“ nominal week ” by means of a varying rate.
The case of Seabrook & Sons, Ltd. v. Jones (supra), and the provisionsof the Agricultural Wages (Regulation) Act 1924 (which it appears to mewas the model for our Ordinance No. 27 of 1927), and the Order made
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by the committee, in pursuance of the powers conferred on them, towhich reference has been made, all point to the following conclusions: —
The object of the Agricultural Wages (Regulation) Act was tosecure to a worker a minimum wage.
This object was reached through the medium of minimumrates of wages for time work.
Minimum rates of wages for time work mean minimum ratesof wages measured in time.
Minimum rates of wages must have reference to the time workedand the time the worker has agreed to work.
Unlike in Ceylon the committees appfjinted under the Agri-cultural Wages (Regulation) Act 1924, have power to fix minimumrates of wages which may vary according as the contract of employ-ment is for a day, a week, a month or any other period, or accordingto the number of hours worked.
The fixation of a minimum rate of 30 shilling's per week of fiftyhours is not a bar to a contract for a week of less than fifty hours anddoes not where such an agreement has been made compel an employerto pay the labourer more than the amount due for the agreed numberof hours estimated on the basis of 30 shillings for fifty hours.
These committees unlike Estate Wages Boards, are empoweredto provide for the case of a week or other contract period where theagreed hours are less than the customary working hours by rateswhich may vary according to the number of working hours so as toyield the same wage as if the agreed hours were those contemplatedor specified in the order fixing the minimum rate.
Power to fix a “ minimum rate of wages ” for time work doesnot of itself include power to fix a wage payable per day irrespectiveof the time worked or the time which the labourer has agreed to work.The powers of Estate Wages Boards constituted under the provisions
of Ordinance No. 27 of 1927, are not co-extensive with the powerscommitted by the Agricultural Wages (Regulation) Act 1924, to com-mittees appointed thereunder and are limited to the fixation of minimumrates of wages for time work in accordance with which the wage payablefor a period of time worked or agreed to be worked is to be ascertainedand does not include power to fix a daily wage payable irrespective ofthe'hours worked or agreed to be worked.
The Legislature has not expressly and explicitly conferred uponEstate Wages Boards a power to fix a minimum wage for labourersemployed at time work to be paid for every day on which a labourerworks or for any part thereof regardless of the time worked or the timethe labourer is bound by his contract to work, and there is nothing inthe Ordinance which can in my opinion fairly be said to vest such apower in these Boards in express terms or by necessary implication.
At the time when this Ordinance was enacted the tide of Ceylon’sprosperity had not begun to ebb and there was no reason to supposethat any employer would require of a labourer less than as many hourswork per day as a labourer could reasonably be expected to work. Itis quite conceivable therefore, that while provision has been made to
422GARVIN S.P.J.—The Attorney-General v. Urquhart.
ensure that a labourer should earn a reasonable wage per day of eight hourswork and that any work in excess of this period should be paid for atovertime rates, the case of an employer requiring less than eight hours of alabourers time was neither foreseen nor contemplated; if it was con-templated it has not been provided for. But since 1927, the tide ofprosperity has turned and this Island has for the last two years andlonger been and still is experiencing the hardships of financial depression.Employers are faced with the dismissal of a portion of their labourersor the reduction of the working hours as an alternative to closing downaltogether. To the labourers the question is whether all or a numberof them are to have their contracts determined or whether all of themshould accept the shorter working day and less wages. Entirely newand unforeseen circumstances have resulted in an adjustment to meetthe changed circumstances by which employer and labourer haveendeavoured to find a solution in a contract for a working day of six hours.Is the employer nevertheless bound to pay the labourer as for an eighthour day? If he is, then employers and labourers have sought in vainfor a solution.
. Admittedly these are contracts for a month, the obligation imposedon the labourer being that he shall work six hours on each working dayand on the employer that he shall give the labourer work on each of thesix working days in each week or alternatively to pay him the wage whichhe would have earned for each day on which he was able and willing to. work and offered to do so. The wages earned are payable monthly.After careful consideration of the Ordinances relating to master andservant prior to Ordinance No. 27 of 1927, I am unable to see that thereis anything in such a contract which is obnoxious to its provisions. Noris there anything in Ordinance No. 27 of 1927, which expressly forbidssuch a contract except upon condition that the labourer shall be paidas for eight hours at the minimum rate of wages prescribed. Can it fairlybe said that it does so for the reason that it has vested in Estate WagesBoards the power to fix minimum rates of wages for time work? Tothat question also the answer it seems to me must be in the negativeunless power to fix minimum rates of wages for time work be construedto mqan power to fix wages for time workers which have no relation totime worked or agreed to be worked. This to my mind is not a possibleinterpretation.
But, whatever its powers may be, has the Estate Wages Board fixeda minimum daily wage payable to a labourer for every day on which heworks whether the time worked or agreed to be worked be eight hours orless ? In the Notification earlier referred to it is declared that “ on allestates the rate fixed is the minimum rate for a working day of nine hours(including time not exceeding one hour taken for the midday meal)”.What is meant by a “ working day of nine hours including time not exceed-ing one hour taken for meals”? It has been interpreted by the accusedas a day of eight working hours in the sense of a day in which the timeworked or agreed to be worked is eight hours. It seems to me it is onlysusceptible of that meaning. Had the Estate Wages Board fixed a wage fora “ working day ” it would have become necessary to inquire whetherwhat was meant was the contract working day, the customary working
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day or possibly even a day on which work is performed, as distinguishedfrom the Sabbath. But where, as here, the words working day arefollowed by the words of definition “ of nine hours (including time notexceeding one hour for meals)” the expression which has reference toeight working hours can only, it seems to me, mean a day of eight hoursWorked or of eight hours which the labourer has agreed to work.
The expression “ a working day of eight hours ” mutatis mutandis is notdistinguishable from the expression “ a week of fifty hours ” in clause 1 ofthe Order made under the authority of the Agricultural Wages (Regulation)Act, 1924. That clause is not of itself a bar to a contract for a week ofless than fifty hours nor does it place an employer under a duty to paythe same wage for a week of less than fifty hours.' Unlike the committeescreated under the authority of the Act just referred to, the Estate WagesBoard for this district has not—always assuming they had the power todo so—provided for the case of a working day of less than eight hoursby directing that in such a case the labourer shall be paid at a rate whichwill secure to the labourer the same wage as would be payable if theagreed hours were less than eight per day.
The Board has not said that 50 cents shall be payable for a workingday of eight hours or less.
A labourer is only entitled to his wage when he has earned it by workor has offered in fulfilment of his part of the contract to perform workfor the whole of the agreed “working day”. A labourer who afterworking a few hours, for example, four hours, falls ill and is unable tocontinue is entitled to be paid for four hours at the minimum rate and nomore. How can it be said that a labourer who has only agreed to workfor six hours and who only works for six hours or less has become entitledto be paid 50 cents as for eight hours, when all that the Wages Board hassaid is that he is entitled to be paid at a minimum rate of 50 cents for aworking day of eight hours and has not said that he shall, in the event ofthe agreed working day being less than eight hours, be paid at a rate’which will secure to him a daily wage of 50 cents?
If such was the intention of the Legislature there could have beenno difficulty in stating that Indian labourers employed on estates onmonthly contract shall be paid at such minimum rates of wages per dayof eight hours, whether the agreed hours of work be eight hours or less,as the Estate Wages Board may fix. But it has not said so nor has itin my opinion conferred powers to do so on Estate Wages Boards whenthey authorized them to fix minimum rates of wages jor time work. TheEstate Wages Board for the district in which Perth estate is situatedhas fixed a minimum rate of 50 cents for a working day of eight hoursbut it has not said that where the agreed working day is less than eighthours the labourer shall be paid at such a rate as will secure to him asum of 50 cents per day nor has it said that a male adult labourer shallbe paid 50 cents for a working day of eight hours or less.
This is a criminal prosecution for the alleged breach of a statutoryduty to pay the labourers referred to as for eight hours per day notwith-standing that they only worked for six hours and were only under agree-ment to work for six hours. Unless the Legislature and the subordinateauthority, i.e., the Estate Wages Board constituted by the Legislature,
424
DALTON J.—The Attorney-General v. TJrquhart.
have imposed such a duty clearly and unambiguously the accused isentitled to be acquitted. Indications of an intention in the mind of theLegislature to secure for labourers a minimum wage will not sufficeunless upon a fair interpretation of the language it has used it clearlyappears that the particular duty alleged has been' imposed on theemployer. The objects and intentions of the Legislature are sometimesonly partially and imperfectly carried into effect by the Statutes enactedfor the purpose. At other times a Statute is in 'all respects adequatebut the subordinate legislation passed under the authority of the Statuteproves to be insufficient to carry its objects fully into effect.
Our legislation relating to Indian labourers and Ordinance No. 27 of1927 shows that the Legislature has secured to those labourers thattime work should be paid for at the minimum rates fixed by the WagesBoards and that time worked over eight hours shall be paid for at overtimerates. But I am unable to find any provision which requires paymentat a higher rate for time work whenever by the terms of the agreementthe agreed hours per day are less than eight hours nor is it in my judgmentpossible to interpret the rate of 50 cents per working day of eight hoursfixed by the Estate Wages Board as meaning a wage of 50 cents for everyworking day of eight hours or less.
In the absence of a statutory provision which makes it an impliedterm of every monthly contract of hire and service with an Indianlabourer that the working hours shall be eight per day or alternatively of astatutory obligation to pay such labourers for a working day of less thaneight hours at such rates as will secure to them the wage which would havebeen payable had the agreed hours been eight, an employer cannot beconvicted of paying male labourers employed by him at a rate lessfavourable than the rate prescribed by the Board so long as he paysthem for the number of hours worked or agreed to be worked, whicheveris the greater, wages computed at the rate of 50 cents for eight hours whichamounts to 37£ cents for an agreed working day of six hours. In thisinstance both the agreed hours and the hours worked were six and thewage paid 37£ cents and in some instances a little more. The positionin regard to the female labourer is exactly similar.
This appeal should therefore be dismissed.
Dalton J.—
This appeal depends upon the construction of the provisions of theIndian Labour Ordinance, 1927, which has to be read and construed asone with Ordinance No. 11 of 1865 (Contracts of Hire and Service) .OrdinanceNo. 13 of 1889 (Contracts of Hire and Service; Indian Coolies), and Ordi-nance No. 1 of 1923 (Contracts of Hire and Service ; Indian ImmigrantLabourers.) The question to be decided is whether since the three. labourers in question are monthly servants payable at a daily rate, theyare entitled and required to be paid a minimum wage at the rate fixedfor their respective class for the twenty-four days on which they worked inthe month of September, 1931, irrespective of the hours during which theyworked on those days under eight hours. The Magistrate has held thatthey were entitled to be paid for work done according to the time takenin the work, at a rate proportional to the rate fixed for a day of nine
DALTON J.—The Attorney-General v. Urquhart.425
hours (including one hour taken for the midday meal), and that theminimum rate of wages fixed is not a minimum wage to be paid withoutreference to the hours actually employed on the work. He accordinglyfound that no offence had been committed under section 11 of theOrdinance.
It is contended by the Acting Solicitor-General for the appellant thatthe decision of the lower Court is wrong. He accepts the finding of theMagistrate against the evidence of the labourers, that, in fact, they didnot work more than six hours on any day during the month in question,and there is no dispute that they were in fact employed on time work.He contends, however, that the rates fixed by the Estate Wages Boardand approved of under the Ordinance (27 of 1927) are minimum dailywages to be paid for every day they worked without any deduction,in other words, that they were entitled to have their wages computedaccording to the days they worked (subject to any overtime after ninehours) and not according to the hours they worked during the day.Whilst supporting the judgment of the Magistrate and the reasoningupon which he based his conclusion, Mr. Perera, however, argued that theagreement entered into between the employers and labourers was one fora six-hour day, that there is nothing in the Ordinance to prohibit suchan agreement, and that the minimum rate of wages fixed by the WagesBoard being for an eight-hour work day, taking that as a proportionalrate only, the labourers are entitled under their agreement to wages atthe rate of six-eighths of the rate fixed by the Wages Board, at whichrate they have in fact been paid.
It is not contested that the labourers are engaged on a monthly contract,the wages being payable monthly at a daily rate. Under the provisionsof Ordinance No. 11 of 1865, in the case of such a contract unless the wagesare payable at a monthly rate, they are to be computed according to thenumber of days on which the labourer shall have been able and willingto work. That requirement was amplified by Ordinance No. 13 of 1889.Section 5 imports certain conditions to be implied in such a verbal con-tract notwithstanding that the wages are payable at a daily rate, whilstsection 6 (2) enacts that the monthly wages shall be computed accordingto the number of days the labourer was able and willing to work anddemanded employment, whether the employer was or was not able toprovide him with work. It is here expressly enacted, however, that theemployer shall not be bound to provide for any labourer more than sixdays’ work in the week. Prior to the enactment of the Ordinance No. 27of 1927 therefore these particular labourers under their contract would beentitled to twenty-four days’ work each month to be paid for at a dailyrate whether work was provided or not, provided they were able andwilling to work. The amount of the daily wages was, however, up to thattime entirely a matter of agreement between the employer and labourer.
16—xxxiv.
426
DALTON J.—The Attorney-General v. Urquhart.
Ordinance No. 27 of 1927, which is to be read and construed with theseprevious Ordinances, provides for the appointment of Estates WagesBoards with power to fix minimum rates of wages for time work per-formed on estates within their jurisdiction. Time work is not definedin the Ordinance, but I do not think there is any difficulty as to itsmeaning. Its ordinary and general meaning is work done and paid forby measure of time,'as opposed to piecework which is work done andpaid for by the measure of quantity or by previous estimation andagreement. The term “ minimum rates of wages ” is defined as the ratesproper in cash or kind or both for an able-bodied unskilled male labourerabove the age of sixteen years, for an able-bodied unskilled femalelabourer above the age of fifteen years, or for an able-bodied child ofeither sex for time work. Different minimum rates may be fixed forlabourers in different localities, and for different classes of labourers.The Ordinance in section 11 goes on to enact that any person who employsor pays a labourer, to whom a minimum rate of wages applies, at a rateof wages less favourable to the labourer than the minimum rate shall beliable to a penalty.
On November 27, 1928 (exhibit P 1), the appropriate Board fixedminimum rates of wages (in addition to certain issues of rice) applicableto the estate on which these three labourers were working. The relevantportions of the schedule in the order approved under section 10 of theOrdinance were in the following terms: —
On all estates the rate fixed is the minimum rate to be paidfor a working day of nine hours (including time not exceeding one hourtaken for the midday meal).
4. The following minimum rates of wages have been fixed for theareas specified: —
MenWomenChildren
cents.cents.cents.
Kalutara Revenue District ..50. .40. .30
With the passing of Ordinance No. 27 of 1927, and on the approval ofthis order, the position of the labourers to whom it was applicable in respectof their work and wages, was, so it seems to me, as follows: they aremonthly labourers, their wages being payable monthly at a daily rate,being computed according to the number of days they are able and willingto work. They are entitled to have work for at least twenty-four daysin each month to be paid at the daily rate for those twenty-four dayswhether work was provided or not. A working day is fixed at nine hours,which includes one hour taken for the midday meal, and a minimumrate of wages is fixed, for the different classes, in a certain sum for thatworking day. If the employer, pays him less than the minimum rate ofwages so fixed, he is liable. to a penalty under the Ordinance. Theintention, it seems to me, in the Ordinances when read together is clear,
427
DALTON 3.—The Attorney-General v. Urquhart.
monthly contract, work to be paid at a daily rate, guaranteed numberof days’ work, and a minimum wage for a day’s work. Under the orderthe rate of minimum wage is fixed, and the work day is also fixed ateight hours.
From the evidence led in this case it would seem that up to aboutApril, 1931, no difficulty arose in finding work for labourers for an eight-hour working day and paying them at the minimum rate fixed for theday’s work. At times, it is stated, much more than the minimum rateswere paid. When prices fell, however, difficulties arose, and it appearsto have been thought that labourers could be retained to work on theestate, if they agreed, for a shorter day than an eight-hour day, and ifsuch an agreement was entered into by them, they were entitled to bepaid wages for the hours, which it was agreed should comprise a workday, at rates proportional to the minimum rate fixed for an eight-hour,day. In this case under appeal, on the footing that they worked only sixhours a day, they have been paid six-eighths of the minimum rates ofwages fixed by the Board, which, it is urged, is a compliance with the. requirements of the law.
At this point I would state that I can find no evidence to show that thethree labourers in question entered into any agreement with theiremployer that they would work for six hours only a day. The evidenceis clear that no record is, in fact, kept of the hours for which any labourerworks on any day, the time being arrived at, according to the Superin-tendent, on a calculation of the amount of latex brought in, coupled withmere suppositions as to when the work is commenced and when it isfinished. Although the Solicitor-General does not question the Magis-trate’s finding that they did not work more than six hours on any day inSeptember, the evidence on this question is, in my opinion, most unsatis-factory and quite inconclusive. All the Superintendent states on thequestion of an agreement is in the following terms: —
“ I went and talked to people in the, various estates. They agreed
to get 6/8 of the minimum wage; they suggested this rate and I
accepted it; they went on accepting this1 rate before I went to England.
I started paying 6/8 in May. I started this in the interests of labourers ”.
The accused, who was the acting Superintendent from June toDecember, 1931, merely states that he carried on that system which theSuperintendent explained to him when he took over.
In support of the Magistrate’s judgment, it is first of all urged that theEstates Wages Board was acting ultra vires in providing for a workingday of eight hours, but the power to fix a minimum rate of wages for timework seems to me necessarily to include power to'fix the time to whichthe rate of wage fixed is applicable. It will be seen from the case ofSeabrook & Sons, Ltd. v. Jones' to which I again refer later, that thecommittee under the Agricultural Wages (Regulation)/Act, 1924, hadpower, in fixing minimum rates of toages per week" for agriculturallabourers, to direct that a week should in summer consist of fifty hours,
1 (1929) 1 K. B. 336.
428
DALTON J.—The Attorney-General u. Urquhart.
and in winter of forty-eight hours. It does not appear that on thisparticular point it was suggested they were acting ultra vires of theirauthority. There was an argument before us that the committees underthe Act have wider powers than the Estate Boards under the Ordinance,but on the question of deciding what is a working day or working week inrespect of the minimum rate of wages, their powers appear to me nogreater than the powers of the Estate Wages Board. In any event inthe case of the Ordinance, it is to be noted there is, in addition, a pro-vision for the payment of overtime rates, for the calculation of which itis laid down that the day’s work, apart from overtime, shall be ninehours including time not exceeding one hour taken for the middaymeal.
It was next urged that what the Estate Wages Board has done infixing a minimum rate of wages in the schedule to the order (P 1) is tofix a ratio for payment for time work, according to time actually worked,under any agreement entered into between the parties, and that there isno provision of the law which would prohibit an agreement for a six-hour working day, if employers and labourers consent to enter into suchan agreement. I have already stated that I can find no such agreementhere, but even had the employer agreed to less than eight hours’ workbeing done under the Ordinance, in my opinion, the labourer is stillentitled to be paid the minimum wage for eight hours at the rate fixedfor his or her glass. The force of Counsel’s argument that the rate fixedis a ratio for payment according to hours worked was also somewhatdiminished by his admission that if the labourers in this case had workedfor less than six hours for which the employer paid them, they wouldnevertheless be entitled to be paid for the six hours. The purport ofthese Ordinances read together and very shortly put, is to assist estateemployers of labour to obtain an adequate and regular supply of labouron settled terms, and to guarantee to labourers able and willing to worka definite amount of work per month, for which they are to be paidregular wages at a daily rate not less than a certain sum (which of coursemay be varied from time to time) for a day’s work of a definite numberor hours. It does not seem to me that, having regard to the provisionof the law, there is room here for the position for which counsel contends.The rates fixed, under the approved order, are a minimum wage to be paidto the labourers according to their class for an eight-hour day withoutany deduction. Although section 3 of the Ordinance undoubtedly offerssome difficulties in interpretation, I can find nothing in it to suggest tome that my view is incorrect. On the other hand, allowing for. thecorrection of a grammatical error in the section, my considered view of itrather goes to confirm the conclusion to which I have come, as to theplain intention of the Ordinance and the order. The Ordinance has ingreat part been based upon the Agricultural Wages (Regulation) Act,' 1924. Section 3, however, is new, but the whole Ordinance must beread together: Sub-section (1) of the section applies to labourers employedat work other than time work for a day or a successive number of days,and directs that for that day or successive number of days his wages are
DALTON J.—The Attorney-General v. Urquhart.
429
to be not less than the wages payable to the labourer for such period atthe minimum rates prescribed. If the words “ or part of a day ” followed“ a day ”, then there might be something to support Mr. Perera’s argu-ment although even that addition does not remove all difficulties, but theday being a working day of eight hours, I can find nothing in the sub-section inconsistent with the conclusion to which I have come.
Sub-section (2) is undoubtedly badly drafted, and some words as“ such payment ” must be read into the fourth line between “ and ” and“ shall ” to make it grammatical. The use of bad grammar does not,however, necessarily make a sentence unintelligible, and fortunatelythere is no dispute as to the meaning of the Legislature in that particularrespect. The sub-section provides for the payment of overtime workin the case of daily paid labourers. Any period of work exceeding ninehours, including an hour for the midday meal, is to be paid for at over-time rates. Payment for overtime is, of course, to be in addition to theminimum rates payable for a day’s work, and it is provided that over-time rates are to be not less per hour than one-eighth of the minimumrate of wages fixed under the Ordinance. The amount earned forovertime work is required to be calculated per hour, using the rate fixedfor an eight-hour work day as a basis for calculation, but I am unableto read into that provision any intention or requirement that paymentof wages for the day’s work apart from overtime is to be calculatedaccording to the hours worked on the same basis. If that was theintention of the Legislature, nothing would have been easier than toprovide for it. I am unable to find in either sub-section of section 3anything which, in my opinion, can be said to support Counsel’s conten-tion, or which is other than consistent with my view of the Ordinanceas a whole.
In the course of the argument certain English cases were cited bothby the Solicitor-General and Mr. Perera in support of their respectivecases, to which I will refer.
The case of Seabrook & Sons, Ltd. v. Jones (supra) was one arising underthe Agricultural Wages (Regulation) Act, 1924, and an order thereunder, anfor that reason is of considerable assistance on the question in this appeal.Lord Hewart in his judgment points out that the Act provides that theminimum rates of wages may be fixed so as to apply universally to allworkers who come within the provisions of the Act, or to any specialclass of workers, or any special area, or to any special class in any specialarea, and so as to vary according as the employment is for a day, week,month, or other period, or so as to provide a differential rate in the caseof overtime. Although somewhat different terminology is on occasionused in the Ordinance, due no doubt to the fact that local conditions aiemuch less complex than in agriculture in England, I see no materialdifference between the powers of the Agricultural Wages Committeeunder section 2 of the Act and those of an Estate Wages Board under theOrdinance. The former are perhaps set out in more detail in the Act,but they do not seem to amount to much more than is provided in the
34/31-
430DALTON J.—The Attorney-General v. Urquhart.
Ordinancie on this point. I have already dealt with the meaning of theterm “ time work The Act does, it is true, provide in express termsthat a committee shall, as far as is practicable, secure for able-bodiedmen wages as in the opinion of the committee are adequate to promoteefficiency and to enable a man in an ordinary case to maintain himselfand his family in accordance with such standard of comfort as may bereasonable to the nature of his occupation, but the promotion of efficiencyand the payment of an adequate living wage are matters which, in theinterests of both employer and labourer, any committee doubtless wouldand should take into consideration without any special direction to thateffect. Although there is no such direct provision in Ordinance No. 27 of1927,1 have already indicated the purport of this and the other Ordinanceswith which it has to be read.
Lord Hewart goes on to point out that a committee addressing itselfto its task came to the conclusion that a worker ought to have at least 30shiHings a week, that week being normally one of fifty hours. Applyingthe rates fixed to the case before him, although in fact the worker had notactually worked fifty hours during the week, owing to Good Friday fallingwithin the week, Lord Hewart states that the worker being an agriculturalworker of full age employed by the week, he “ was entitled to the minimumwage per week The Justices had held that the worker was entitled,under the Act and order framed thereunder, to receive the full.minimum ,wage of 30 shillings less national health insurance in respect of the GoodFriday week, whether he worked for the whole fifty hours or for-a shortertime, and it was held that they were correct. The argument that he wasentitled only to payment for the hours he had worked during the weekat a rate proportional to the minimum rate fixed, even if he had agreedto do so, was rejected. Avery J. put his conclusion very shortly in thefollowing way: —
“ Once it is admitted the committee had power to make or fix the rateof wages of 30 shillings per week for male workers of twenty-one yearsand over, I think it cannot be said that they were acting ultra vires inproviding that although normally 30 shillings a week was to be paid forfifty hours’ work in summer and forty-eight hours in winter, if in anyparticular the employers chose to agree that the worker need not workthe whole of the fifty or forty-eight hours, as the. case may be, that then,in that case the man should still be entitled to his 30 shillings for theweek
This conclusion was come to without in any way invoking clause 2 ofthe order, upon which Mr. Perera relied to show that the case could notbe relied upon by the appellant.
This view taken in Seabrook & Sons, Ltd.v.Jones (supra) as to the meaningof the words “minimum rates of wages ” in the order is supported by theearlier case of Jones v. Harris The question there was as to the onus1 ofproof in the case of a prosecution under the Act for the payment of wagesat a rate less than the minimum rate. The rates per week varied accord-ing to the age of the workers. It was held that the prosecution had to
i (1927) 1 K. B. 425.
DALTON J.—The Attorney-General v. Urquhart.
431
make out a prima facie case, showing (a) the relation of employer andemployed, (b) that there was a working in agriculture, and (c) the age ofthe person alleged to have been underpaid. The onus under the Act isthen upon the employer to prove that he has paid wages at not less thanthe minimum rate. There was no onus on the prosecution to prove thenumber of hours the worker had actually worked, since that fact was notrelevant as it must have been relevant had he been entitled to be paid,under the order only, for the number of hours he had actually worked.
In support of counsel’s contention that the word “rate” as used bythe Estates Wages Board in the expression “ minimum rate of wage ”meant the rate per hour of a normal working day of eight hours, we werereferred to the judgment of Buckley J. in Davies v. Glamorgan CoalCompany, Ltd.1 The question arising there related to the standard rateof day pay for a collier working at piecework, under the Coal Mines(Minimum Wage) Act, 1912. In my opinion it affords no assistance inthe case before us. The various duties which come within the remunera-tive part of the collier’s work are all paid for separately, and it must benot an easy task in arriving at the week’s wages due for coal that has beengot. It is quite clear, however, that the question as to how the rate ofthe actual earnings of the workmen was to be ascertained was not beforethe Court, the only points that arose for decision being whether rules 6and 7 (1) made under the Act were ultra vires. It was held that theywere not ultra vires, Vaughan Williams L.J. expressly refrained fromexpressing any opinion as to how the rate of the actual earnings was to beascertained, since he states it was not before them. Buckley L.J.,however, in his judgment considered it necessary to consider the meaningof the term “ rate ”, as, he says, it affected his judgment on the pointsto be decided. He defines the term, having regard to the special scheme. of the Act to which I have already referred, and he points out that in thisparticular industry a workman has to do various classes of work whichare paid for at different rates. He was clearly dealing with the meaningof the term, as used in what may be called a very special and no doubtcomplicated case, and it seems to me to give no assistance in answeringthe question before us. It is to be' noted also that it was not referred toin Seabrook & Sons, Ltd. v. Jones (supra) as giving any assistance on thequestions to be decided in that case.
The case of Board of Trade v. Roberts and another2 is one arising underthe Trade Boards Act, 1909. In an order under that Act. the Board ofTrade made minimum wages obligatory for certain branches of the tailoringtrade, and provided that the rates were to apply to all male workers whowere “ engaged during the whole or any part of their time ” in any branchof the tailoring trade, but not to persons engaged as clerks or messen-gers. The worker in question during part of his time did a certain amountof tailoring work, but at other times he was an errand boy and madehimself generally useful. The question to be decided was whether the factthat he was engaged for some part of the time in' tailoring work entitledhim to be paid either for the whole time or for part of the time at theminimum rate of wage prescribed by the order. In answering thisquestion Lord Reading says:
1 (1914) 1 K. B. 074.
2 So L. J. K. B. 79.
432
DALTON J.—The Attorney-General v. Urquhart.
“Once you arrive at the conclusion from reference to the act andthe order that the intention is that he should be paid not lessthan the minimum rate for the time in which he is engaged inthe tailoring trade, whatever work he may be doing at othertimes, it seems to me that there is little, if any, difficulty inarriving at a solution of the problem: In my, judgment thisorder means that if he is engaged for a part of the time ….in work in the tailoring trade, he is to be paid for that substan-tial part of the time at the prescribed minimum rate per hourThe terms of the order, in the use of the words “ engaged during thewhole or part of the time ”, differ of course in a most essential respectfrom the provisions of the Ordinance and the order made by the EstateWages Board. I do not see that this decision as to the meaning of theorder gives any assistance in answering the questions we are called uponto consider.
The case of Hampton v. Smith1 seems also to me to have no bearingon the questions before us. That case arose under the Corn ProductionAct, 1917, which was repealed in 1921 by 11 & 12 Geo. V. c. 48. . Thatlatter act provided in section 4 for the establishment of voluntary jointcouncils of employers and workmen in agriculture for the purpose ofdealing with wages, or hours, or conditions of employment, but thatsection was repealed and replaced by the Agricultural Wages (Regulation)Act, 1924, upon which Ordinance No. 27 of 1917 is based.
The case of France v. J. Coombes & Co.2, if it is of any use in the casebefore us, may almost be said to support appellant’s contention. At anyrate the orders under the Trade Boards Act, 1918, which the Court wascalled upon to construe, provide amongst other things that the workersin question were to be paid wages for a forty-eight-hour week at the ratesfixed, but “ subject to a proportionate reduction according as the numberof hours of employment in any week is less than forty-eight”. Thatclearly contemplates, as pointed out by Scrutton L.J., that if a workmanis working for, say, twenty-four hours, his guaranteed wages are to be halfonly of the rates mentioned. There is no such provision in OrdinanceNo. 27 of 1927, or the orders approved thereunder, and as I have alreadypointed out, nothing would have been easier to say so, if the Legislaturehad so wished.
There is just one other matter, to which I would wish to refer, in viewof certain matters mentioned in the course of the case. This Court has,of course, io interpret the law as it finds it. If one is satisfied as to thecorrect construction of any Ordinance, what may follow as a result of theenactments of the Legislature so construed, is not a matter that concernsthe Court in the performance of its judicial duties. Any suggestiontherefore that the allowance of this appeal may result in some estatesbeing unable to continue working on an economic basis and may be to thedetriment of both employers and labourers, resulting in the discharge oflarge bodies of labourers on the footing that the first are unable to paythe minimum wage fixed, cannot enter intojthe purview of the Court in
' 89 L. J. K. B. 413.
2 (1928) 2 K. B. 81.
DALTON S.P.J.—Van Cuylenberg v. Caffoor.
433
deciding the legal questions that have arisen in this case. The minimumrates fixed by the order of November 27, 1928, have, we are told, beenvaried by a later order of December 17, 1931, These latter matters,however, raise questions of policy which are entirely outside the provinceof this Court in deciding questions of law such as this. If this decisionas to the meaning of the law we are called upon to construe and theallowance of this appeal should tend to the unfortunate result that somewould seem to anticipate, the remedy is not within the power of thisCourt to supply. It lies elsewhere.
For the reasons given I am satisfied that the appeal must be allowedand the case be sent back to the Magistrate for a conviction under section11 of the Ordinance to be entered. Under the circumstances, it being atest case, if is obviously a case for only a nominal penalty. The Magistrate,however, must also ascertain what sum, if any, is due to the labourersunder sub-section (2) of section 11 of the Ordinance, and make thenecessary order in respect of that sum when ascertained.
Appeal allowed.