Enmore Estates Ltd v Singh

• Jurisdiction: Guyana
• Judge: Persaud, J.A.,Crane, J.A.
• Judgment Date: 29 January 1976
• Neutral Citation: GY 1976 CA 3
• Docket Number: Civil Appeal No. 21 of 1974
• Court: Court of Appeal (Guyana)
• Date: 29 January 1976

Court of Appeal

Haynes, C., Persaud, J.A.; Crane, J.A.

Civil Appeal No. 21 of 1974

Enmore Estates Limited

and

Singh

Appearances:

C. Lloyd Luckhoo, S.C.C. Denbow with him, for appellants

Ashton Chase, W.M. Zephyr with him, for respondent

Labour Law - Statutory Interpretation — Overtime Pay

1 CHANCELLOR: Between February 1966, and September 1971, when he retired, Dhanraj Singh was employed by Enmore Estates Limited as their head laboratory technician at their sugar factory at Enmore, East Coast, Demerara. He worked a forty-eight-hour week from Monday to Saturday for eight hours daily. He was paid monthly. After for he retired, he brought these proceedings. He clamed that during this period he worked on a number of Sundays and public holidays, but was not paid for work done on these days as he was entitled to be paid, under s. 24 of the Factories Act, Cap. 95:02. The trial judge awarded him $2,093.05 with costs fixed at $750. Enmore Estates Limited are dissatisfied with this judgment. They say he was not entitled to a penny. Hence this appeal to this Court.

2 In the court below, the respondent claimed he should have been paid for those Sundays and holidays as “overtime” work, at the rate specified in s. 24 (4) of the Act S. 24 (1) (b) and (c) read as follows:

“The Minister may make regulations prescribing the rate at which a person who is employed in a factory, or in any occupation in a factory, shall be paid —

• (b) in respect of work on any public holiday, other than as specified in paragraph (c);

• (c) in respect of work on Sundays, Christmas Day, … … ….”

3 But no regulations were prescribed. So that his entitlement (if any) depended on the application to him of s. 24 (4) which enacts that —

“Where, in relation to any factory or to any occupation in a factory the appropriate rate under subsection (1) (a), (b) or (c) has not been fixed in regulations made under this section, such rate shall be, in the case of work on any day specified in subsection (1) (c), twice the rate at which the person employed would but for this section be paid, and, in the case of any other work, one and a half times the rate at which the person employed would but for this section be paid”.

4 The words “the rate at which the person employed would but for this section be paid” were judicially interpreted in Sir Linday Parkinson & Co. Ltd. v. Scholsberg, (1961) 3 W.I.R. 413, to mean the ordinary or basic rate of pay of the employee during week-days for work done. This Court, in Mustapha Khan v. Bookers Demerara Sugar Estates Ltd., Civil Appeal No. 15/1966, dated 6th February 1967, adopted and applied this interpretation. And in Dwarka v. Demerara Co. Ltd., Civil Action No. 577 of 1967, Demerara, Crane, J. (as he then was) applied this provision to a monthly paid employee. And so did the trial judge here.

5 At the hearing, the appellants admitted the respondent did work on a number of Sundays and public holidays. They conceded this work was done in a “factory” as defined in the Act. But they contended, mainly, that the Act was intended to and did apply only to factory workers employed in manual labour; that the respondent's occupation was supervisory and clerical and, accordingly, s. 24 of the Act was inapplicable to him. The trial judge ruled that the respondent was not employed in manual labour but nonetheless, held that he was ‘employed in a factory’, or, “in any occupation in a factory” within the meaning of s. 24. And so this appeal would depend on the proper interpretation of those vital words, if the respondent's occupation was not manual labour.

6 On the evidence he accepted, the trial judge found that the respondent's occupation was supervisory and clerical. With this finding of fact I agree. In any event, to use a phrase invented by O'Connor, J. in Da Costa v. Savage & Trading Pty. Ltd., (1970–1971) 124 C.L.R. 192, this was a ‘value judgment’, and there was evidence to support it. True, it was that, as a laboratory technician, he did work with his hands, as we all do. But this fact simpliciter could not, as a matter of common sense, make it apt to describe him as a ‘manual’ labourer or as employed in ‘manual’ labour. It has been laid down in cases whose authority I accept, that the real test is: What is the substantial nature of his employment? If that be manual labour, the fact that there are other duties performed that could not be so described, still leaves a factory worker a person employed in ‘manual’ labour. If, on the other hand, the substantial part of the employment cannot be described a s ‘manual’ labour, the fact that the manual work has to be performed also does not make him a person employed in manual labour. It is the character of the employment as a whole, which determines the correct classification. [See Bound v. Lawrence, (1892) 1 Q.B.D. 226, Jaques v. Owners of Steam Tug Alexandra, [1921] 2 A.C. 339 and J. & F. Store Lighting & Radio Ltd. v. Haygarth, [1966] 3 All E.R. 539.] Here, the respondent's use of his hands was of so incidental and subsidiary a nature that, on a common sense approach, a decision could be reached readily that he was not employed ‘in manual labour’. His occupation was primarily non-manual, though involving some manual work. And so the crucial question is the interpretation of s. 24.

7 Admittedly, the statutory clause “a person who is employed in a factory or in any occupation in a factory” is, in its ordinary literal meaning, by itself and out of context, general and wide enough to include the respondent. He was employed in a factory, in the occupation of a technician. But the appellants contended that they had to be given a limited or restricted meaning; then they would be cut down or qualified, as if the section read — “a person who is employed in a factory or in any occupation in a factory, in manual labour”. They founded this argument on “the intention of the Act”.

8 This intention, it was submitted, was to protect and benefit only those who did ‘manual’ labour in the factories, and those who did not were to be outside its statutory shelter; and if those words were unconfined in meaning, the legislative intention would be defeated. To evaluate this proposition rightly, it is essential to discover the intention of the framers of the Factories Act. In older days in England (as in British Guiana as it then was), it was easy to locate the statutory objective and intention. Lord Diplock, in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. [1975] 2 W.L.R. 513 explained the reason why. The point debated there was whether the report of a committee, which recommended that legislation be passed to remedy certain mischiefs, could be looked at to assist in determining the intention of the Act itself. His Lordship said (p. 541):

“As regards recourse to the report for the purpose of ascertaining the mischief for which Parliament intended to provide a remedy by the Act, this is based upon the so-called ‘mischief’ rule which finds its origin in Heydon's Case, 3 Co. Rep. 7 a decided under the Tudor monarchy in 1584. The rule was propounded by the judges in an age when statutes were drafted in a form very different from that which they assume today …. …Statutes in the sixteenth century and for long thereafter in addition to the enacting words contained lengthy preambles reciting the particular mischief or defect in the common law that the enacting words were designed to remedy. So, when it was laid down, the ‘mischief’ rule did not require the court to travel beyond the actual words of the statute itself to identify ‘the mischief and defeat for which the common law did not provide,’ for this would have been stated in the preamble. It was a rule of construction of the actual words appearing in the statute and nothing else.”

9 It was against the background of such a legislative structure, that eventually the rule was developed which was expressed by Lord Chief Justice Tindal in delivering the advice of the judges to the House of Lords in The Sussex PeerageCase, (1844) 8 E.R. 1034, at p. 1057, thus:

“… the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe mean of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Chief Justice Dyer ( Stowel v. Lord Zouch, Plowden, 369), is ‘a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress.’”

10 So it is that in construing modern statutes, which contain no such preambles to serve as inset aids to construction, the ‘mischief’ rule must be used with the caution asserted by Lord Diplock in the Black-ClawsonCase (supra, p. 541). As there is seldom now (if ever) any detailed preamble in effect setting out completely its intention as a part of the statute itself, the intention of the legislature must be found elsewhere. In Salomon v. Salomon. [1897] A.C. 22, Lord Watson said (p. 38):

“…. … ‘Intention of the Legislature’ is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by...