we - _V__THR VICTORIAN RALLWAYS COMMISSTONTRG, tk " ROBINSON & Q) 8 . RATUMAYS + duagment. Knox C.0. The question in this case turns on tho construction of an agreement made between the Respondents and certain branches of the Coal & Shale Employees Federation for the purpose of regulating the conditions of employment of perecns workin§ in. the VYonthagei Ccal mines. By clause 15 of that agreement it is provided that the minimun wage for efficient miners employed as coal hewers or brushers shall be 19/7 per shift. Clause 9 of the agreement under the heading "Dirt Scale" provides by sub-clause (a) that certain refuse ocourring in the seam p. 2. is to be paid for at specifiied rates, by sub-clause (b) for payment for Girt ordered to be filled out, by sub-clevse(c) that the maxinum quantity of dirt or foreign mutter ellowed in a skip without a fine Bhall be 17 lbs that af that quantity be exceeded a fine of 34. for each 7 lbs in excess shall be imposed aud by sub-clause (4) for the method cf payment where 4 small band of coal coours in or under & dirt seam. The question at issue is whether the respondents are entitled to make deductions under clause 9(c) of the a8reement from the amount peyable to a miner if the effect of such deduction ie to reduce the nett amount payable to him below 19/7 ker shift. 3. ¢ The Supreme Court by majority - faut & MannJJ ; Weigeull J. digsenting - upheld the contention of the I a&ree in the conolusicn reached by Weigeall J. and in the reagoning by which he supported that conclusion. He said " For the : plaintiffs 1t was contended that these deductions are syecified by clause 9 as factors which shall cr may operate in ascertaining the workers! wage, and that, thougSh in that olause cdlled "fines" or "penalties" they are not such in any real sense, and are not enforce- able or ogerative otherwise than as elements in ascertaining the wage earned. In my view this contention is correct. In the light of she evicence biven at the trial the general effect of the avreement in question seems to me éo be as follows - The wate sarned by such ucrkers as the plaintiffs in respect of each skip loaded by them is to be a aum to be calculated at the rates fixed by the agreement on the weight of the leaded skip, but to be ainished to the extent speo- ified by clause 9 in respect of any excess over 17 lbs of dirt found 4, by soreening to have been insluded in the load." x x x x & K X "It gubstankiukiy (the fine) is cubstantially zo more than the net ot of a deduction to be mace from a Eross sum before acosttaining he to worker in reayg sum rey;resenting the payment to be ma the shift. If, a3 the result of such Geduetion, the worker is found to'have earned in respeot of yuch shift less than 19/74. I think that clause 15 requires that fer such shift The worker ehull nevertheless be poid ly/7a. In other words, I think that clause 15 does not allow clause 9 to prevent the worker from receiving 19/74. a shift as a wininum wage aud in any event." Agreeing as I do in this view of the senstasoteon of the aére ment IT am cf opinion that the appeal ehould be allowed and the judgme of the County Court restored, ios gh Crul- Ma biw hag iV NT A hae SA | J bb 4) v VICTARTAW BATA | Ge i TSOT UPR LOBTSUt VV ICON TaN VAT WAY Cormt TRS This appeal turny on the trus conskruetion of part ef clause ly of the sgrrecent, viz, the werds "Mindmun Yage/, # The wininum "wags Ser effec: 'ro ethloyea es coal hew Sor brashers aig " ghall bs 198, 7d. per ahift, * The yaval arguments may bo substantially uteted thus, the appktexntx appellants saintain that thess worda secure te then 19/7 per shift nobvitnotanding any fines under Gleune 9 of the agreemcnt, while the respondent's contention ig that the worus sseurn to the agpellants 19/7 per shift subject te those fines, Tho matter must be determined by construing the crucial worda in surkx relation te the rest of th: agreensnt, Clause 1Y of the agreenent in hoaded Shift Rates, and there aso liat of alagsifind enjleyses warth varying rates attached to each, Tha list uses not inciuds caml newora or brushers, Then, still es port ef miux cluure 15 cour the worus fT have quoted, After tnose words provision ia made for workers unable to vain ths mininum wage for any clscs of work under the agreenent, So far there woulau be a clear right of coal hewers and brushers to 19/7 per shift, "Vlanse 9 hevever kes provision fer "art vesle", Paragraph dyx (a) relates te refugo over 2 inches thie! ani left Standing 2. ina sean, end makes provigiva fer 4 certain allow: workers, ""laragrayh A". L relates te stene or rofuse felling with the cori ene which cantet oa Kept up. 4 certain ollowance is alge made for that, Luregragh (pb) relates to dirt wraerad te 02 filled out, Again an allcwance ia made for that. it is paragraph (c) which in-its relation to clauso 15 givea rise te the rival contentiens, It soys:- 'The maximus qunntity "af dirt or fercign matter aliowed ino skip vithout a fine "siiall be lfZiba: from 17 lbs to 24108. % Line of 3a chali be "impesed and ve en, an additional fine ef 3a Ler every 7 los." en we find the.c words: "Shise penalties to apply enly to the skip or skips in which "the aixt or Yayeoign matter is feund, The Management rauerves the fright te ciominx tkamnm: dismiss any san for repeated offencen "or pordouy offences," T de not fing it neon ary to aeboruins whether on the one her the words "mlnef and oi fenees"hove a quaadetechnieal meaning Ainticeting contravantisn er rulss end consequent punisl Ay whether on the other tusy are merely otra: erds for causes of deductions fren ear a2, Shah it cleer to ne ds that they show plainly Duth parties agreed that to execau 17 pounds of dirt in a skip was dnexcuanble conduct on the part of the employse, and beyond the fair margin of effielent carivranghip, eee Leading the document therefore as @ whels I construe tr relevqnt passages thus bificient veal nevrerg end brughera sre sagured in a rinimun wage of 19/7 per shift en ti: basis of their adhering te the ether terns tot agreement, These otiinr te, , £irct senrre to them stated allovances for the disficultisa of existing dirt anu refuss out not na gant up mixed with the coul, Ae apperre fren tha evidence it ia fhen "the duty of the miners te pick out the coal as fer Yag poopible and lesa dt auto skips." Ab tude point paragraph (ce) opaxatec, In recognition of tne fairness of aliewine: sarie margin of refuar in coal witheut cemplaining of negligence the partisa agree on a Limit of 17 los. per skip, That ig to be the limit compatibles vith workmanlike care, Up to that quantity thers is conventionally perfermancs ef tis agreenent, bo voyand that thers te cena, tionally @ breach st by the miner, and for that breach of agreenent thera io praportionately 49 the extent of the brosch an agreed measure of penalty. the agreed minima of 19/7 per shift uosunes tnt th workaan porferns his contract as agreed, that 4s that le ob :srves the conventional limit of eare, he agreed nininun is therefere aubjeot to the agresd mesvere of penalty for deparfture from the conventional standard of workvanlike diligende in separating coal from refuge, t 19 the racsonable construetion on - a on the facs of ths agreanant, but a decisive test way in sy opinion be applied. "mapoae the negliganes ve great that ningetonths of y stip in the shitt ia dirt 52 timt the fines net omly lear: nothing to be psad in reapeet of any vlazle skip give menfceel ¢ a a but shew a balants owing, for Tinea Kéoula it ronoonably be contende that a clasr sum of 19/7 wow nevertheless payable as tic vdndmum ee [he stele wage, and no gua payable oa = Line 3 In wy opinisn elsarly net, But if not, it shewe that the wage of 19/7 ig supject to the prev= inion as to fines, The uppsel should conaequently be dionias 1. V. VICTORIAN RAILW on piece- Higgind o the rethe In my opinion, the judge of the County Court,was right sons stated by him;but the difference of opinion is not surprising as to them . agnen construction of au ag yan nt so slovenly,if we put aside, as we must,what we may know of the ways of miners. Clause 9 of the agreement - with the head— ; ing "Dirt Seale" is inserted among the complicated provisions as to piece- work earnings;it relates to those earnings only,and does not affect the | shift rates for time wages,or the minimum wage provisions - all of which ap— | pear in the same clause 15, But for the fect that in clause 9 the words "fine""penalties""offences" are used,the case would not be arguable. These | words,however,as is admitted by the majority of the justices of the Supreme Court,cannot be enforced otherwise than by deduction from the wages;the fines | are not true fines,substantively enforceable, The position is similar with | regard to fines for taking another man's tools (cl.21). Such a fine is ex- pressly "to be deducted from his (the miner's] earnings"; but,from the nature | of the offence,and the position of the provision efter clause 15 as to mini— | mum wage,I should think that the fine under clause 21 could be deducted evew ' from the minimum wage. Fines under clause 9 are not for the mere purpose i of discipline,of punishment; they are to a large extent a gauge of the l' value which the miner is giving by his piecework; and if his "dirt" is ex- i cessive,the remedy is dismissal (C1.9(c)). I respectfully dissent from the f, View that thk operation of clause 9 "depends entirely upon the volition of the workman himself", From the nature of the case,miners cannot avoid send— ing some dirt with the skips;but in order to prevent them from earning their fii piecework pay too easély,by sending up dirt instead of solid coal, they are limited to 17 pounds of dirt per skip "withoyt a fine". Sometimes a man X bs put to work at o place where the dirt is excessive and without his fault; and the deduction of 3a,6a,94,1/- per skip is a kind of check on.him, so 1) that he may not earn more wages by sending up excessive dirt. At the same ; time,as a check on the employer,who has the selection of the place where the' : 8 I mdm must work,the man must receive at least '19/74 per shiff. "The maximum }wage for efficient miners employed as coal hewers or brushers shall be 19/7 A per shift", That is to sgy, the net earningsof the man on piecework is to ' 8 . FP be measured with 19/7d ver day, and if they fall short of fo/7a, the differ ; ence has to be made up 'to him, It is a mere case of piecework earnings with a timework minimum. i It has not been contended that this clause as to minimum wage applies i I to any hewers and brushers who may be empioyeu vu vame wean, a veen treated as a minimum wage provision for "efficient" miners on piece~ work; and by "efficient" miners I understand those who are not under the special provision for men wno' are unable from any cause to earn the minimum rate, Vrobably this treatment is right; but if it had been contended as I suggest, the contention would have been more formidable for the miner to meet than the present. In my opinion, the apyeal ought to be allowed. ROBINSON v, THE VICTORIAN RAILWAY COMMISSIONERS. JUDGMENT . RICH J. THU _VICTORIAN RAILMAY COMMISSIONERS. JUDGYENT, a RICH J. I agree with the conolusion errived by the majority of the Judges of the Supreme Court, Clause 15 does not prescribe a standard wags in all eve' It ie not to be treated as isolated from the rest of the agreement. "Much turne in each oase on the context. The document to be construed "must be read ag a whole, and in interpreting particular words these cannot be read without reference to what comes before and after", Lord Haldane L.¢, Toronto Cuburban Pailway v. Toronto Corporation, 1915 A.C. 590 at p. 597 Reading then clauses 9 and 15 together the employers agreed to make the allowames in 9 (a) (aI) and (b) and the employees conceeded that dir' or foreign matter over a maximum quantity amounted to a failure to attain the requisite standard of efficiency, This plac the fine on a different plane from the minimum wags Frovision, The re- sult of which is that there is no inconsistency bewween coneeeding that j ! i the miner is oredited with 19/7 as a mininum wage and debited with the fine in respect of a particular skip, The appeal should be dismissed, { \ ROBLASON Ve VICTORTAN RAILFAYS COMMISTTOFERS SUOGNERT The judgment of the majority of the Suprema Court waa, in my Qpinion, right. I have uothing to add te what was gaid by Sobutt and Mann JJ. in that Gourt in suppert of theiz conolusion, ond therefore ainply conour in the reasons which they have so clearly oxpreasede