Full Judgment Text
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PETITIONER:
WORKMEN OF BOMBAY PORT TRUST
Vs.
RESPONDENT:
THE TRUST OF THE PORT OF BOMBAY
DATE OF JUDGMENT:
18/11/1965
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
RAMASWAMI, V.
SATYANARAYANARAJU, P.
CITATION:
1966 AIR 1201 1966 SCR (2) 632
ACT:
Minimum Wages Act (11 of 1948), ss. 13 and 14 and
Minimum Wages (Central) Rules, 1950, rr. 24 and 25--Scope
of.
HEADNOTE:
The respondent had under its control several docks. The
trustees Of the respondent introduced a two shift system of
work and that resulted in the crew working in some docks
getting 4 hours of overtime in some docks 3 hours of
overtime and in others 2 hours of overtime only. In the
last category the 12 hours shift wag divided in-to 8 hours
of work, 2 hours of rest and 2 hours of overtime. The 2
hours period of rest was variable depending on the tides or
the exigencies of the work, though the crew were informed
each day what the, period of rest would be on the following
day. The appellants, who belonged to this category,
complained that the breakup of the 12 hours shift into 8
hours of duty, 2 hours of rest and 2 hours of overtime
offended the Minimum Wages Act, 1948, and that the system of
variable recess did not satisfy the requirements of rest
which is the basis for fixing statutorily the hours of work
in relation to wages. The Industrial Tribunal held that the
appellants were not able to establish that the existing
system of work needed any modification.
In appeal to this Court,
HELD: There was no breach of the provision of the
Minimum Wages Act and the case of the appellants could not
be compared with that of the crew working at the other
docks, because, there wag no parallel in the work of the
three different sets of crew. [643 H]
If an employer takes actual work for 8 hours per day on
6 days in a week he complies with the relevant provisions of
the Act and the Rules, namely ss. 13 and 14 of the Act and
rr. 24 and 25 of the Minimum Wages (Central) Rules 1950, and
need not pay overtime. He may go up to 9 hours on any day
without paying any overtime provided he does not exceed 48
hours in the week. He can specify the intervals of rest and
spread the 8 or 9 hours, as the case may be, together with
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intervals of rest over 12 hours in a twelve-hour shift.
These periods of rest must not be periods during which the
workman is on duty and inaction is due to want of work for
him, but they must be predetermined periods of inaction
during which the workman is neither called upon nor expected
to display physical activity or sustained attention.[641
B-D]
In the present cage the total number of hours of work
in a week was 48 (8 hours per day for 6 days). Therefore
overtime was payable beyond the period of 8 hours, for that
hour or part of an hour during which the workman was either
made to work or the interval of rest was not specified. The
respondent can say that it will not take more that two hours
extra work on any day and specify the remaining two hours as
the intervals for rest; and the Trustees would not be guilty
of infraction of the Act by keeping the recess variable so
long as they specify
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in advance the recess on any particular day. The Trustees
could not be compelled to break up the hours of work by
interposing intervals for rest. [641 G-H; 643 B-C, D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 325 of
1965.
Appeal by special leave from the Award dated September
20, 1963 of the Central Government Industrial Tribunal,
Bombay in Reference CG IT-25 of 1962.
S. V. Gupte, Solicitor-General, M. Rajagopalan and K.
R. Choudhuri, for the appellants.
C. B. Agarwala, J. B. Dadachanji, O. C. Mathur and
Ravinder Narain, for the respondents.
The Judgment of the Court was delivered by
Hidayatullah J. This is an appeal by special leave
against an award dated September 20, 1963 made by the
Presiding Officer of the Central Government Industrial
Tribunal, Bombay in a reference made by the Government of
India under s. 10(2) of the Industrial Disputes Act, 1947.
The appellants are the workmen of the Bombay Port Trust, who
are and have been represented in this dispute by the Bombay
Port Trust Employees’ Union. The respondents to this appeal
are the trustees of the Port of Bombay. The reference was
made on a joint application of the parties. and the matter
in dispute was stated to be :
"Whether the existing system of work of
the shore crew of the Prince’s and Victoria
Docks under which each shift consists of 8
hours’ normal duty, 2 hours’ variable recess
and 12 hours’ overtime needs any modification?
The Tribunal, by the award impugned here, held that the
Union was not able to establish that the existing system of
work needed any modification.
The Port Trust had under its control several docks.
Reference in this judgment will be made to the Prince’s and
Victoria Docks, the Alexandra Docks, Butcher Island and the
Flotilla Crew. These represent different areas of work
where different groups of workmen were employed. From the
facts appearing on the record it appears that the Trustees
first introduced a two shift system of work in the Alexandra
Docks on June 30, 1953 and the same system was extended to
the Prince’s and Victoria Docks on December 15, 1953.
Previously, the shore crew at all these places worked in a
single shift and were liable to be called out at
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any hour of the day or night. When the two shift system
began, each shift of 12 hours was broken up into 8 hours’
duty, 2 hours’ variable recess and 2 hours’ overtime. The
hours of rest were kept variable as they depended on the
tides. In 1956 the workmen, who were then represented by
the Port Trust General Workers’ Union, made a demand for a
fixed recess of two hours. The Trustees apprehended that
this was a device to get 4 hours’ overtime and rejected the
demand. The General Workers Union was informed that if the
demand was pressed a three-shift system would be introduced.
The workmen then retraced their steps and accepted a 2
hours’ variable recess but requested that it should be as
near the middle of the shift as possible. The Trustees
agreed to accept the hours of rest at fixed hours in the
Alexandra Docks but at the Prince’s and Victoria Docks they
kept it variable agreeing to fix it as near the middle of
the duty hours as possible. Under this arrangement the
shore crew working at the Prince’s and Victoria Docks were
informed each day what the period of rest would be on the
following day. In explanation of this difference it may be
pointed out that the Alexandra Docks work on a system of
lock gates which enables the depth of water at the docks to
be artificially regulated but the Prince’s and Victoria
Docks, being tidal, work only at high tide. It was thus
possible to fix rest hours at the Alexandra Docks for half
the crew different from the rest hours of the other half so
that a part of the crew was always available on hand. As
the lock gates control the depth of water in the Alexandra
Docks, fixed hours of rest could be maintained from day to
day except in the monsoon months when the, storm gates had
some time to be closed. During these months recess time at
the Alexandra Docks was also variable and was made to
coincide with the closure of the storm gates. The workmen
at the Alexandra Docks seemed to have accepted a variable
recess of two hours but the Port Trust gave a notice under
s. 9A of the Industrial Disputes Act on June 25, 1960
announcing the introduction of variable recess although in
the months other than the monsoon months recess was actually
at fixed hours. The workmen opposed the change from fixed
to variable recess. Meanwhile studies were being made and
it was found that the work hours at the different Docks were
not equal: they were heavier at the Alexandra Docks than at
the other docks. The Trustees, therefore, resolved that the
shore crew at the Alexandra Docks should work for 8 hours
and that there should be a variable recess of one hour and
overtime of three hours should be paid. Thus the 12 hours’
shift at the Alexandra Docks was 8 hours’ of duty, 3 hours’
overtime and one hour variable recess. This system was,
however,
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not extended to the prince’s and Victoria Docks and Butcher
Island. At these docks 8 hours’ duty, 2 hours’ rest at
variable times and 2 hours’ overtime were prescribed. The
claim of the shore crew at the Prince’s and Victoria Docks
and Butcher Island for reducing the hours of rest and
increasing overtime to three hours was not accepted because
the amount of work in the, opinion of the Trustees did not
justify the change. The Union contended that this division
of 12 hours’ shift into 8 hours’ work, 2 hours’ rest and 2
hours’ overtime violated the provisions of the Minimum Wages
Act and that the so-called period of rest was illusory
since, being variable, it was some times given right at the
commencement of the shift and some times at the end,
depending on the tides or the exigencies of the work. The
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Union claimed that a 12 hours’ shift should be divided into
8 hours’ work and 4 hours’ overtime as was the case with the
Flotilla Crew. This claim was opposed by the Trustees.
According to them, there was no breach of the provisions of
the Minimum Wages Act. They contended that, regard being
had to the number of actual work hours, the case of shore
crew at the Prince’s and Victoria Docks and the Butcher
Island could not be compared with that of the crew at the
Alexandra Docks or the Flotilla Crew. The Tribunal accepted
the entire case put forward on behalf of the Trustees and
the Union has appealed to this Court.
On behalf of the Union the learned Solicitor General
has argued the case almost entirely from the legal stand-
point and has attempted to establish that the break-up of a
12 hours’ shift into 8 hours’ duty, 2 hours’ rest and 2
hours’ overtime offends the Minimum Wages Act. He, has in
addition submitted that the system of variable recess does
not satisfy the requirements of rest which is the basis for
fixing statutorily the hours of work in relation to wages.
The Minimum Wages Act was enacted to enable Government
to fix minimum rates of wages in certain employments. Since
fixation of minimum wages must take into account the work-
load also, provision must not only be made for prescribing
the minimum wage but to correlate it to a specified amount
of work. Any extra work beyond the specified work-load must
be paid for at a higher or what is known as "overtime" rate.
Similarly, intervals of rest must punctuate suitably the
hours of work and they must also be provided for in a scheme
of the work-day of a workman. The Minimum Wages Act makes
provision for all these matters either by itself or through
Rules. The Central Government has framed the Minimum Wages
(Central) Rules, 1950. The Act and the
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Rules between them provide not only for fixation of minimum
wages but also for the work-load in relation to which the
minimum wages are to be prescribed. They provide on the one
hand for minimum wages, lay down the procedure for fixing or
revising them and prescribe the rules in accordance with
which the wages must be paid. On the other hand, the Act
and the Rules fix the number of hours of work, payment of
overtime and for hours of rest in the work-day of the
workman. The provisions of the Act and of the Rules are
applicable to some employments only and they are shown in a
Schedule appended to the Act. It is admitted that the
present workmen come under the Schedule. The hours of work
and the payment of overtime are, therefore, governed by the
provisions of the Minimum Wages Act and the Minimum Wages
(Central) Rules, 1950 and the controversy in this case must
be appreciated and resolved in accordance with them. We
shall now turn to these provisions.
We are concerned with two sections and two rules. The
sections are Nos. 13 and 14 and the rules Nos. 24 and 25.
The whole of the matter in dispute admittedly is governed by
these, four provisions. We shall begin by setting out the
relevant parts of these provisions :-
"13. Fixing hours for a normal working
day, etc.
(1) In regard to any scheduled
employment minimum rates of wages in respect
of which have been fixed under this Act, the
appropriate Government may-
(a) fix the number of hours of work
which shall constitute a normal working day,
inclusive of one or more specified intervals;
(b) provide for a day of rest in every
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period Of seven days which shall be allowed to
all employees or to any specified class of em-
ployees and for the payment of remuneration in
respect of such days of rest;
(c) provide for payment of work on a
day of rest at a rate not less than the
overtime rate.
(2) The provisions of sub-section
(1) shall, in relation to the following
classes of employees, apply only to such
extent and subject to such conditions as may
be prescribed:-
(a)...............................
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(b)................................
(c) employees whose employment is
essentially intermittent;
(d)................................
(e)................................
(3) For the purposes of clause (c) of
sub-section (2), employment of an employee is
essentially intermittent when it is declared
to be so by the appropriate Governmen
t on the
ground that the daily hours of duty of the
employee, or if there be no daily hours of
duty as such for the employee, the hours of
duty, normally include, periods of inaction
during which the employee may be on duty but
is not called upon to display either physical
activity or sustained attention."
14. Overtime.
(1) Where an employee, whose minimum
rate of wages is fixed under this Act by the
hour, by the day or by such a longer wage-
period as may be prescribed, works on any day
in excess of the number of hours constituting
a normal working day, the employer shall pay
him for every hour or for part of an hour so
worked in excess at the overtime rate fixed
under this Act or under any law of the
appropriate Government for the time being in
force, whichever is higher.
(2) Nothing in this Act shall prejudice
the operation of the provisions of section 59
of the Factories Act, 1948 in any case where
those provisions are applicable."
Rule 24. "Number of hours of work which shall constitute a
normal working day-
(1) The number of hours which shall
constitute a normal working day shall be:-
(a) in the case of an adult, 9 hours,
(b) in the case of a child, 41 hours.
(2) The working day of an adult worker
shall be so arranged that inclusive of the
intervals for rest, if any, it shall not
spread over more than twelve hours on any day.
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(3) The number of hours of work in the
case of an adolescent shall be the same as
that of an adult or a child according as he is
certified to work as an adult or a child by a
competent medical practitioner approved by the
Central Government.
(4)....................................
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(4-A) No Child shall be employed or
permitted to work for more than 4-1/2 hours on
any day.
(5) Nothing in this rule shall be
deemed to affect the provisions of the
Factories Act, 1948".
Rule 25.Extra wages for overtime--
(1) When a worker works in an
employment for more than nine hours on any day
or for more than forty-eight hours in any
week, he shall, in respect of overtime work,
be entitled to wages,
(a) in the case of employment in
Agriculture, at one and a half time the
ordinary rate of wages;
(b) in the case of any other scheduled
employment, at double the ordinary rate of
wages.
Explanation-The expression "ordinary rate
of wages" means the basic wage plus such
allowances including the cash equivalent of
the advantages accruing through the
concessional sale to the person employed of
foodgrains and other articles as the person
employed is for the time being entitled to but
does not include a bonus.
(2) A register showing overtime payment
shall be kept in form IV.
(3) Nothing in this rule shall be
deemed to affect the provisions of the
Factories Act, 1948."
The controversy in the present case is a narrow one.
It is whether the fixing of a two hours’ rest and two hours’
overtime involves a breach of the two sections of the Act
and the two rules quoted here ? The workmen claim that under
a scheme of 12hour shifts with 8 hours’ work, overtime
should be at least 3 hours, if not 4, and by fixing only two
hours’ overtime the Trustee are B guilty of the breach of
the Act and the Rules. Unfortunately the provisions of the
Minimum Wages Act and the Minimum Wages
639
(Central) Rules, 1950, are not as clear as the corresponding
provisions of the Factories Act, 1948 and they have led to
long arguments before us. We shall refer to the provisions
of the Factories Act later because for the present we must
consider the provisions of the Act and the Rules without
drawing any assistance from the Factories Act.
Section 13 of the Act does not itself fix the hours of
work or rest or overtime. That is done by the Rules.
Section 13 only authorises Government to fix the number of
hours which shall constitute a normal working day, inclusive
of on,-. or more specified intervals. The normal working
day thus includes (a) hours of actual duty, and (b) one or
more specified intervals. There may be one interval of rest
or there may be more intervals but whatever their number,
they must be specified. By interval under s. 13 is
obviously meant interval of rest and this is clear from Rule
24(2). There is no definition of interval either in the Act
or the Rules but the provisions of S. 13 (2) (c) read with
S. 13 (3) give us an indication of what is meant by an
interval of rest. It means a break in the work during which
a workman, though present on duty, is not called upon to
display either physical activity or sustained attention.
But it is not a period of more inaction because there is no
work for him. If it is the latter, it is counted as actual
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work period: if the former, it is counted as a period of
rest, provided the period is specified beforehand, and the
workman is neither called upon to work nor expected to work.
Having thus distinguished between period of work and
interval of rest we may now turn to Rule 24 which prescribes
the number of hours of work which is to constitute a normal
working day. Sub-rule (1) (a) provides that the number of
hours constituting a normal working day for an adult shall
be 9. As the heading of the Rule shows these are the hours
of work. Sub-rule (2) then lays down that the working day
of an adult shall be so arranged that inclusive of intervals
for rest it shall not spread over more than twelve hours on
any day. The distinction between intervals of rest and
hours of work is thus made clear. From this it follows that
on any single day the number of hours of work must not
exceed 9 and together with the hours of rest the total
period of work and rest should not go beyond 12 hours. It
is wrong to contend that the period of 9 hours must always
include intervals of rest. It may or it may not. There is
no provision in the Act and the Rules corresponding to s. 55
of the Factories
640
Act to which reference will be made hereafter. In a 12-hour
shift, the nine hours of work on any day can be spread over
12 hours and the extra hours will necessarily be hours of
rest. The contention of the workmen is that S. 13 fixes the
number of hours in a normal working day and this number is
inclusive of one or more specified intervals. They read
Rule 24, which prescribes a normal working day of 9 hours,
as including within the 9 hours one or more intervals of
rest. We do not think this is a correct reading either of
s. 13 or of Rule 24. There is clear antinomy between hours
of work and intervals of rest in sub-rules (1) and (2) of
Rule 24 and the phrase ’inclusive of one or more specified
intervals’ governs the normal working day and not the number
of hours of work.
Under sub-rule (2) of Rule 24 the working day of an
adult can be so arranged that inclusive of intervals of rest
it does not exceed 12 hours on any day. A working day may
extend to 12 hours but the number of hours of work cannot
exceed 9. A working day of 12 hours is thus made up of hours
of work and hours of rest and the number of hours of work
(which cannot exceed 9) is part of the normal working day
which may also include one or more specified intervals of
rest. This determines what is a normal working day and what
is meant by an interval of rest. We now come to the
question of overtime.
If work on any day is taken which goes beyond 9 hours
the provisions of s. 14 apply. That action speaks of
overtime. Overtime is payable for work in excess of the
number of hours constituting a normal working day. From s.
13 read with Rule 24 we know that the number of hours
constituting a normal working day is 9. We shall now read
into S. 14 this number leaving out those provisions which
have no bearing upon the matter. The section so read lays
down :-
"Where an employee........... works on
any day in excess of 9 hours, the employer
shall pay him for every hour or for part of an
hour so worked in excess at the overtime
rate........... "
Under Rule 25 (1) (b) this overtime rate is double
the ordinary rate of wages. Therefore, an employer can take
actual work on any day upto 9 hours in a 12-hour shift, but
he must pay a double rate for any hour or part of an hour of
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actual work in excess of 9 hours. He need not, however, pay
for any interval of rest provided it is specified
beforehand. These provisions are subject to
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one more check which we may now mention. The check is found
in the latter part of Rule 25(1) which says that the maximum
number of hours of work in a week shall not exceed 48 and
for any work in excess of 48 hours a week overtime shall be
payable. As there is a prescribed day of rest in a week we
get a working week of six days with a maximum of 48 hours’
work. Average duration of actual work payable at ordinary
rate of wages per day thus comes to 8 hours. Thus if an
employer takes actual work for 8 hours per day on 6 days in
a week he complies with all the provisions and need not pay
overtime. He may go up to 9 hours on any day without paying
any overtime provided he does not exceed 48 hours in the
week. He can specify the intervals of rest and spread the 8
hours or 9 hours, as the case may be, together with
intervals of rest over 12 hours in a twelvehour shift.
These periods of rest must not be periods during which the
workman is on duty and inaction is due to want of work for
him, but they must be pre-determined periods of inaction
during which the workman is neither called upon nor expected
to display physical activity or sustained attention.
We have seen that an employer having a 12-hour shift
can fix 48 hours of work per week of six days at 8 hours per
day. He is not compelled to give overtime for the remaining
four hours unless he takes work during those hours, provided
he has specified those hours as intervals of rest. If he
takes work during the extra 4 hours or fails to specify the
hours of rest he must pay overtime. He can spread 8 hours
with intervals of rest to 9, 10, 11 or 12 hours as he likes.
For the hours of rest he is not required to pay overtime but
he must specify those hours. Overtime under s. 14 is only
payable when the workman works in excess of the number of
hours constituting a normal working day. That number is 9
hours for any day and work up to 9 hours on any day can be
taken without paying overtime if the total number of hours
in the week does not exceed 48. As in the present case the
total number of hours of work in a week is 48 (8 hours per
day for 6 days) overtime is payable for that hour or part of
an hour beyond the 8 hours in which the workman is either
made to work or the interval is not specified. The Port
Trust can say that it will not take more than two hours
extra work on any day and specify the remaining two hours as
the intervals for rest. It is, not compelled to fix only
one interval or to make the interval of one hour only. It
can fix two or three or even four without in any way going
against the provisions of s. 13 or Rule 24.
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At this stage it is instructive to look into the
provisions of the Factories Act, 1948 dealing with the daily
hours of work, intervals for rest and spread over of the
working time. Sections 54, 55 and 56 are the relevant
provisions. Omitting the portions not necessary for the
purpose of comparison, these sections read "54. Daily
hours.
"54.Daily hours
Subject to the provisions of section 51, no adult
worker shall be required or allowed to work in a factory for
more than nine hours in any day
Provided..................
"55. Intervals for rest.
(1) The periods of work of adult workers in a factory
each day shall be so fixed that no period shall exceed five
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hours and that no worker shall work for more than five hours
before he has had an interval for rest of at least half an
hour.
(2)........................
"56. Spread over.
The periods of work of an adult worker in a factory
shall be so arranged that inclusive of his intervals for
rest under section 55 they shall not spread over more than
ten and a half hours in any day:
Provided that the Chief Inspector may, for reasons
to be specified in writing, increase the spread over to
twelve hours."
Almost the same provisions are to be found in some other
Acts of the State Legislatures controlling shops,
establishments etc.
It will be noticed that the arrangement of these
sections is almost the same as the cognate provisions of the
Minimum Wages Act. Here too, the hours of work cannot be
more than 9 in a day and taken with the intervals for rest
these 9 hours may be spread over 10-1/2 hours. The only
difference is that a worker must not be made to work for
more than 5 hours at a stretch before he has had an interval
for rest of half an hour at the least. There is no
provision in the Minimum Wages Act which breaks up the hours
of work by interposing a compulsory period of rest as is
done by the latter part of s. 55 of the Factories Act. The
reason, perhaps, is that in some employments time for work
depends on some
643
extraneous factors and hours of rest cannot always be fixed
to, break up those hours. It is proverbial that time and
tide do not wait for any man. Workers at a tidal dock must
work when the tide is in and take their rest when the tide
is out. It is for this reason that a variable recess is in
force at the Prince’s and Victoria Docks and due. notice of
the interval is given by specifying a day in advance the
hours of rest. We do not think that the Trustees are guilty
of infraction of the Minimum Wages Act by keeping the recess
variable so long as they specify in advance the recess on
any particular day. It will also be noticed that the scheme
of the Minimum Wages Act compels the inclusion of an hour of
rest in a normal working day. This is achieved by pres-
cribing that the hours of work in a six-day week shall not
exceed 48, although on any particular day the hours of work
in a day may go up to 9. In this indirect way one hour of
rest is included in a normal working day because the total
number of work hours in a six-day week cannot go beyond 48.
What has not been done by the Act or the Rules is to specify
that the interval for rest shall break up the hours of work.
The Trustees cannot be compelled to break up the hours of
work by interposing intervals for rest, if owing to the
nature of the work there is difficulty in giving the
intervals for rest in that manner on any particular day.
According to their resolution the recess is fixed as near
the middle of the work as possible, depending on the tides.
The workmen compared the case of the Prince’s and
Victoria Docks with the cases of the Alexandra Docks and the
Flotilla Crew. They point out that in the former there is 3
hours’ overtime and in the latter there is 4 hours of
overtime in the 12-hour shifts, but at the Prince’s and
Victoria Docks there is 2 hours’ overtime only. They claim
equal treatment. This is not possible. The crew at the
Prince’s and Victoria Docks work in a different way and
their case cannot be compared with that of the Flotilla Crew
or the crew at the Alexandra Docks. The Flotilla Crew has
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to remain on duty for full 12 hours and they work as and
when they are required. Although their hours of duty are
only 8 they are entitled, if present for work, for overtime
up to four hours. The crew at the Alexandra Docks get a
specified interval of one hour for rest and this makes up
their 9 hours which is 8 hours’ work and one hour interval
for rest. They are, therefore, entitled to three hours’
overtime if required to work beyond the 9 hours on any day.
There is no parallel in the work of the three different crew
and we are satisfied that no conclusion can be based upon
the practice existing at the Alexandra Docks or in
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respect of the Flotilla Crew. We hold, therefore, that the
decision of the Central Government Industrial Tribunal is
right in a circumstances of this case. The appeal must
therefore fail. It will be but in the circumstances of
the case we make no order about costs.
Appeal dismissed.
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