Factories and Shops (Amendment) Act 1935 (NSW)

An Act to provide for tlio licensing of outdoor workers in the clothing trades; to limit the provisions of Part IV of the Factories and Shops Act, 1912-1931, relating to trade descriptions

FACTORIES AND SHOPS

(AMENDMENT) ACT.

Act No. 11, 1935.

descriptions of goods to the t rade descrip­ t ion of bedding, including mattresses ,

pillows, bolsters, quilts , cushions, and

upholstered furni ture ; to make certain further provisions as to false advert ise­ ments ; to amend the Factories and Shops Act, 1912-1931; and for purposes connected

therewith. [Assented to , 6th March, 1935.]

BE it enacted b y the King 's Most Excellent Majesty, lative Council and Legislative Assembly of New South b y and with t he advice and consent of the Legis­	Wales in Par l iament assembled, and by the au thor i ty of
the same, as follows :—

P A R T I.

PRELIMINARY.

1. (1) This Act may be cited as the " Fac to r i e s and

Shops (Amendment ) Act, 1935 . "

(2) The Fac tor ies and Shops Act, 1912-1931, is in

this Act re fe r red to as the P r inc ipa l Act.

(3) The Pr inc ipa l Act, as amended by this Act ,
may be cited as the Fac to r i e s and Shops Act, 1912-1935.
(4) Th i s Act shall commence on a da te to be a p ­

pointed by the Governor and notified by proclamat ion

published in the Gazette.

2. The P r inc ipa l Act is amended—

(a) by inserting at the end of Division 2 of Part II the following new Divis ion:—

DIVISION 2A.—Outdoor Workers—Clothing

Trades.

19A. No work in the clothing t r ades of any descript ion or class which if done or per formed in a fac tory would be covered by any a w a r d for the t ime being in force unde r any Act or Com­ monweal th Act re la t ing to indus t r ia l a rb i t r a t ion shall be done or performed outside a factory by any person for or on behalf of the occupier of a factory, or any t r a d e r who sells such clothing by wholesale or retai l , unless such person holds a license as an outdoor worker .

19B.

19B. (1) The Indus t r i a l Reg i s t r a r m a y g r a n t

such licenses to any persons who prove to his satisfaction tha t they a re in necessitous circum­ stances, or tha t by reason of domestic t ies , infirmity, old age, or any other sufficient reason (of which the Indus t r i a l R e g i s t r a r shall be the sole judge) they are unable to work in factories.

( 2 ) Appl icat ion for the issue or renewal

of such license shall be made to the Indus t r i a l R e g i s t r a r in the form and in the manne r prescr ibed.

(3) E v e r y such license shall be in the form prescr ibed and shall be g ran ted upon such t e rms and conditions as may be determined by the Indus t r i a l Reg i s t r a r , and shall, subject t o the provis ions of this Act, remain in force for one yea r from the date thereof, but may be renewed and on each renewal shall take effect for a fur ther per iod of twelve months .

(4) The Indus t r i a l Reg i s t r a r shall notify

the indus t r ia l union concerned of the g r a n t of such license together with the t e rms and con­ dit ions upon which such license was granted .

(5) E v e r y license issued under this Act
shall be held by the licensee subject to the p r o ­

visions of th is Act and shall be delivered u p to

the Indus t r i a l R e g i s t r a r upon demand.

(6) U p o n the loss or accidental dest ruc­
t ion of any license, the I n d u s t r i a l R e g i s t r a r ;

may, if satisfied, issue a dupl icate or subs t i tu te

license.

(7) The issue or renewal of a license may

be refused—

(a)	unless the applicant satisfies the Indus­ t r i a l R e g i s t r a r tha t he is in all respects a fit and p rope r person to hold such l icense;
(b)	upon proof to the satisfaction of the In­ dus t r i a l R e g i s t r a r of any m a t t e r which unde r other provis ions of this Act would be a sufficient cause for suspension o r cancellation of a license.

(8)

(8) The Indus t r i a l Reg i s t r a r shall keep

a record of all persons licensed under this Ac t ; and shall f rom t ime to t ime a l te r the entr ies in such record to the end t h a t it shall be a correct record of the licenses for the t ime being in force and of the names and addresses and other

pa r t i cu la r s of the persons licensed.

(9) The license of any outdoor worker m a y be suspended or cancelled by the Indus ­ t r i a l R e g i s t r a r on being satisfied t ha t the licensee is suffering from a communicable disease, or tha t he is no t in all respects a fit and p r o p e r person to hold a license, or for any o ther sufficient reason , of which the Indus t r i a l Reg i s t r a r shall be the sole judge .

19c. N O licensed outdoor worker shall—

(a)	employ any other person or persons
whatsoever in wholly or pa r t l y p re ­

p a r i n g or manufac tu r ing art icles of clothing or wear ing appa re l save and except members of the licensed outdoor

w o r k e r ' s own fami ly ;

(b) do any work inside a factory.

19D. The occupier of a fac tory shall not have a t any one t ime more than one licensed outdoor worker to every ten indoor workers or fract ion thereof except wi th the approva l in wr i t ing of

the Indus t r i a l Reg i s t r a r .

19E. (1) A n y inspector , in addi t ion to the

powers a l r eady conferred upon him by this Act,

where any licensed outdoor worker is employed m a y a t any reasonable t imes en te r any premises for the pu rpose of inspect ing the outdoor w o r k e r ' s license or ob ta in ing informat ion as to the name and address of the employer, and the pr ice or r a t e pa id or to be pa id to the licensee for the work per formed by him, and for the purpose abovementioned m a y ask any reasonable ques­ t ions of the l icensee; and every such licensee shall in rep ly to such quest ions give such infor­ mat ion as he m a y possess to enable the inspector to ca r ry out the purpose abovementioned.

(2)

(2) I f any person obst ructs an inspector in the exercise of his powers unde r this section, or fails when duly requ i red to produce his license, he shall be liable to a penal ty not exceed­ ing five pounds.

19F. A n y pe r son who contravenes or fails to ca r ry out any provis ion of this Division of this P a r t of this Act shall, where no other pena l ty is provided, be liable on summary conviction to a penal ty not exceeding fifty pounds .

19G. This Division of this P a r t of this Act shall be read and construed subject to the Com­ monweal th of Aus t ra l i a Const i tu t ion Act and so as not to exceed the legislative power of the S ta te to the in tent t ha t where any provis ion of th is Division or the applicat ion thereof to any person or circumstances is held invalid, the r ema inde r of this Division or the appl icat ion of such provis ion to o ther persons or circum­ stances shall not be affected.

(b)	by inserting in section three after the definition
of ' ' F u r n i t u r e ' ' the following new definition:—

" Indus t r i a l R e g i s t r a r " means the R e g i s t r a r

appoin ted unde r the Indus t r i a l Arb i t r a ­ t ion Act, 1912, or any Act replacing tha t Act.

(c) by omitting from paragraph six of section nine the words " P a r t of this " wherever occurr ing;

(d) (i) by omit t ing from section seventeen the words " las t p receding section " and by	inser t ing in lieu thereof the words " section	sixteen and for the purposes of Division 2A
of this P a r t of this Act " ;

(ii)   by inserting in the same section after the words " the said section " the words " and the said Division " ;

(e) by inserting at the end of section fifty-two the following new subsect ion:—

(3) The prosecutor m a y conduct his case him­ self or by his counsel, a t to rney or an agent duly author ised by him in wri t ing.

(f)

(f)	by inserting in subsection one of section sixty-
two next af ter p a r a g r a p h (q) the following new

p a r a g r a p h : —

( r ) to prescr ibe the form of outdoor w o r k e r s ' licenses which may be issued and the form of renewals of such licenses.

(g) by inserting in section one after the words and figures " Division 2.—Records—ss. 14-19 " the words and figures " Division 2A.—Outdoor workers—ss . 19A-19G " ;

3. The Pr inc ipa l Act is fu r ther amended—

(a) (i) by omit t ing from section seventy-six the definition of " Boots " and by inser t ing in lieu thereof the following definition:—

" Bedding " includes mat t resses , pillows, bolsters, quilts, cushions, but does not include sheets, pillowslips, blankets , rugs , or other bed-coverings which a re not quilted,

(ii)   by omitting from the same section the definition of " Covering " ;

(iii) by omit t ing from the definition of " F a l s e

t r a d e descript ion " in the same section the word " goods " and by inser t ing in lieu thereof the words '* bedding or uphols tered

furn i tu re " ;

(iv)   by omitting from the same section the definition of " Goods " ;

(v)	by omitting from the definition of " Sell "

in the same section the words " t r ade , or

manufac tu re " and by inse r t ing in l ieu

thereof the words " or t r a d e " ;

(vi)  by omitting from the same section the definition of " T r a d e descr ipt ion " and by inser t ing in lieu thereof the following definition:—

" T r a d e descr ipt ion " in re la t ion to any

bedding or uphols tered furn i ture

means any descript ion, s ta tement , indication, or suggest ion, direct or indirect , as to the quali ty, pu r i t y or

weight

weight of the bedding or uphols te ry and as to the mater ia l or ingredients of which the bedding or uphols te ry is composed.

(b) by omitting section seventy-seven and by insert­ ing in lieu thereof the following new sect ion:—

77. (1) No person shall sell any bedding or uphols tered furni ture unless there is conspicu­ ously appended there to , or if so prescr ibed, to a n y covering, label or th ing used in connection therewith , in such manner as is prescribed, a t r ade descript ion of such charac ter and re la t ing

to such m a t t e r s as is prescribed.

(2) The regula t ions shall not prescr ibe a t r ade descript ion which discloses t r ade secrets of manufac ture or p repara t ion , except in any case where, on the ground tha t the disclosure is necessary for the protect ion of the heal th or well-being of the public, the Minis ter so recom­ mends .

(c)	by omitting from section seventy-eight the word " goods " wherever occurr ing and by inser t ing in lieu thereof the words " bedding or up­
hols tered furn i ture " ;
(d )	by omit t ing from section seventy-nine the word " goods " wherever occurr ing and by inser t ing in lieu thereof the words " bedding or up­
hols tered furni ture " ;
(e)	by omit t ing section e igh ty ;

(f)	(i)	by inserting at the commencement of sub­ section one of section eighty-one the words " F o r the purposes of section seventy-
nine " ;

(ii) by omit t ing from p a r a g r a p h (a) of sub­

section one of the same section the words " goods themselves " and by inser t ing in l ieu thereof the words " bedding or up­

holstered furn i ture i t s e l f " ;

(iii)  by omitting from subsection two of the same section the words " o r to any p laca rd required by the regula t ions to be used " ;

(iv)

(iv)   by omitting from the same section the word " goods " wherever occurr ing and by insert­ ing in lieu thereof the words " bedding o r

uphols tered furn i ture " ;

(v)   by omitting from the same section the word " reel " wherever occur r ing ;

(g) by omitting section eighty-two and by inserting in lieu thereof the following new section:—

82. (1) A n y person who sells, exhibits , ex­ poses or has in his possession for sale or any purpose of adver t i sement or t r ade any bedd ing or uphols tered furn i ture to which a t r ade de­ scr ipt ion is not appended in compliance wi th the provis ions of th is P a r t of this Act, shall be gui l ty of an offence aga ins t this P a r t of th i s Act .

(2) Any person who—

(a) being a manufac tu re r , dealer , or t r ade r ,

a l te rs in contravent ion of this P a r t	of
th is Act any t r ade descr ipt ion	appended

to any bedding or uphols tered furn i ture unde r or in compliance wi th any law of New South Wales or of the Common­

wea l th ;	or
(b)	sells, exhibits, exposes or has in his possession for sale or any purpose of adver t i sement or t r ade , any bedding or uphols tered furn i tu re of which the t r ade descr ipt ion appended under or in com­

pliance wi th any law of New South Wales or of the Commonweal th has been a l te red

in cont ravent ion of this P a r t of this Ac t ;

or

(c)	appends any false trade description to
any bedding or uphols tered furn i ture ,

shal l be gui l ty of an offence aga ins t th is P a r t of this Act, unless he proves t ha t he acted with­ out in tent to deceive or defraud.

(h) ( i) by omit t ing from section eighty- three the
word " or " where firstly occurr ing and

by inse r t ing in lieu thereof the word

" e x h i b i t s " ; (ii)

( i i )    by omit t ing from the same section the words " t r ade or manufac ture " and by inser t ing in lieu thereof the words " adver t i sement

or t r ade " ;

(iii)  by omitting from the same section the word " goods " wherever occurr ing and by inser t ing in lieu thereof the words " bed­

ding or uphols tered furn i tu re " ;

(iv) by omit t ing p a r a g r a p h (c) of the same

sect ion;

{i) (i) by omit t ing from section eighty-four the
word " goods " wherever occurr ing and by

inser t ing in lieu thereof the words " bed­

ding or uphols tered furn i tu re " ;

(ii)   by omitting subsection two of section eighty-four;

(j)	by omitting from section eighty-five the word
" goods " and by inser t ing in lieu thereof the words " bedding or uphols tered furni ture
(k)	by omitting subsection two of section eighty- s ix ;

(1) (i) by inser t ing in section eighty-seven af ter

the word " person " where firstly occurr ing

the words " whose r igh t s a re impai red " ;

(ii)   by inserting in the same section before the word " person " where secondly occurr ing the word ' ' such ' ' ;

\ m )	by omit t ing Section eighty-eight ;
(n)	(i) by omit t ing p a r a g r a p h (a) of section

e ighty-nine;

(ii)    by omit t ing from p a r a g r a p h (b) of the same section the word " an " and by inser t ing in lieu thereof the words " the Government " ;

(iii)    by omit t ing from the same p a r a g r a p h the words " the analyst " and by inser t ing in lieu thereof the words " the Government Analys t or one of his officers " ;

(o)

(o)	by omitting from section ninety all words after the words " fifty pounds " where firstly occur­ r i n g ;
(p)	by omitting sections ninety-one, ninety-two and n ine ty - th ree ;
(q)	(i) by omitting from subsection one of section ninety-five the words " in addi t ion to the powers a l ready conferred upon him by th is

Act " ;

(ii)    by omit t ing from p a r a g r a p h (a) of the same subsection the words " goods a re " wher­ ever occurr ing and by inser t ing in lieu thereof the words " bedding or uphols tered

furn i tu re is " ;

(iii)   by omi t t ing from p a r a g r a p h s (b) and (d) of the same subsection the word " goods " wherever occurr ing and by inse r t ing in lieu thereof the words " bedding or uphols tered f u r n i t u r e . "

4. The Pr inc ipa l Act is fur ther	amended—
(a)	by inserting after Part IV the following new
P a r t :—

P A R T V.

F A L S E ADVERTISEMENTS.

97. (1) Any person who publishes or causes to be published any s ta tement which—	(a)	is in tended or a p p a r e n t l y in tended by such person or any o ther person to p ro ­ mote the sale or d isposal of any goods (which t e r m includes any th ing tha t is the subject of t r ade , manufac tu re or mer­ chandise) ; and
(b)	is to his knowledge false in any material par t icu la r ,

shall be liable on summary conviction to a

pena l ty not exceeding one hundred pounds .

(2)

(2) A s ta tement shall be deemed to be

published within the meaning of this section if

it	i s—
(a) inserted in any newspaper or any other publication p r in ted and published in New

South W a l e s ; or

(b) publicly exhibited—

(i)  in, on, over or under any building, vehicle or place (whether or not a public place and whether on land

or w a t e r ) ; or

(ii)   in the air in view of persons being or pass ing in or on any s t ree t or public p lace ; or

(c) contained in any document g ra tu i tous ly

sent or delivered to any person or th rown or left upon premises in the occupation of any person.

(d) broadcast by wireless transmission.

(3) I n any proceedings unde r this section aga ins t any person for publishing any s ta tement aforesaid or causing the same to be published, if it is proved tha t such s ta tement was false in any mater ia l par t icu la r , the person who pub­ lished the s ta tement or caused the same to be published shall be deemed to have published the same or to have caused the same to be pub­

lished with knowledge of i ts falsity, unless he	proves tha t having taken all reasonable p r e ­
caut ions aga ins t commit t ing an offence unde r this section he had reasonable g rounds to believe and did believe tha t the s ta tement was t rue and had no reason to suspect tha t the s ta tement was false.
(4) E v e r y body corpora te shall be liable for an offence under this section as if such body corpora te were a p r iva te person and shall bo subject to the same penal t ies as if it were an individual .

(5)

(5) E v e r y person who aids , abets, coun­ sels or p rocures or by act or omission is in any way directly or indirect ly knowingly concerned in the commission of any offence unde r this sec­ t ion shall be deemed to have committed t h a t offence and shall be punishable accordingly.

(6) Where two o r more persons commit or knowingly author ise or pe rmi t the com­ mission of any offence under this section each of such persons shall be liable therefor and the liabili ty of each of them shall be independent of the l iabil i ty of the other or others .

(7) No prosecut ion shall be ins t i tu ted

aga ins t the p r in te r , publisher , or p ropr i e to r of a n y newspaper p r in ted and published in New South Wales o r agains t any person act ing u n d e r the au thor i ty of the same for the publicat ion in any such newspaper of any s ta tement in cont ra­ vent ion of this section unless—

(a)	such p r in te r , publ isher or p rop r i e to r h a s been warned by an inspector of the falsi ty of such s ta tement or of any o ther s ta te ­ ment substant ia l ly the same as such s ta te ­ ment and tha t the publicat ion thereof i s an offence under this section; and
(b)	such p r in te r , publ isher or p ropr i e to r h a s on any one day af ter the receipt of t he warn ing published or au thor ised or pe r ­ mi t ted the publication of such s ta tement
p r in ted or owned by him (as the case m a y
of any newspaper in New South W a l e s or any such other s ta tement in any issue
b e ) ; and
(c)	the consent of the Minister to the prose­
cution is first obtained.
(8) No prosecut ion shall be ins t i tu ted

aga ins t the seller or d i s t r ibu tor of any news­ p a p e r for the publicat ion in such newspaper of any s ta tement in contravent ion of this section unless the consent of the Minis ter to the p rose ­ cution is first obtained.

( 9 )

(9) In this section " newspape r" in- cludes any periodical publication.

(10) Notwithstanding any proceedings against any person for an offence under this section (whether resulting in a conviction or otherwise) such person shall remain liable to all civil proceedings in like manner as if the proceedings for an offence had not been taken.

(11) This section shall be read and con- strued as in aid of and not in derogation from any enactment or law relating to false or mis- leading advertisements or other statements.

(b)	by inserting in subsection one of section fifty- two after the words and figures " Pa r t IV " the words and figures " and Pa r t V " ;
(c)	by inserting at the end of section one the words and figures ' ' Pa r t V—False Advertisements—s. 97." "