Masters and Servants Act 1863 (SA)

ANNO VICESIMO SEX'L'O ET VICESIMO SEPTIMO

A. D. 1863.

No. 7.

At& Act to comolidate and amend the Laws relating ,a Masters ntld

Servants.

[Assented to, 12th November, 1883.1 a

HEREAS it is expedient to consolidate and amcnd the laws

relating to Masters and Servants-& it therefore Enacted

by the Governor-in-Chief of the Province of South Australia, with the advice and consent of the Legislative Council and House of Assembly of the said Province, in this present Parliament assembled, as follows:

either of the said Ordinances or Act hereby repealed.

1. This Act may be cited for all pu~poses as The Masters and Short title of l.d.

Servants Act, 1863."

2. An Ordinance, No. 9 of 1847, "To amend the Laws relating to RcP~" of

Masters and Servants;" an Ordinance, No. 5 of 1849, " To amend an Ordinance (No. 9 of 1827) ' to amend the Laws relating to Masters and Servants;' " an Act KO. 6 of 1852, intituled "An Act further to amend the Laws relating to Masters and Servants," are hereby repealed except as to anything lawfully done thereunder, and except as to enforcing agreements betweeu masters and servants heretoforc entered into, and inflicting punishments for the breach thereof, and except as to the recovery and appropriation of penalties, and the infliction of punishments for offences against the said Ordinances and Act, or any of them heretofore committed: Provided that this Act shall not operate to revive any Acts or Ordinances repealcd by

26" & 27"ICTORIB, No. 7.

Hasters and 8ervants A c t. 1 8 6 3.

Interpretation of

terms.

3. In the construction of this Act the following words shall, unless

inconsistent with the context or subject mattcr, have the meaning

hereby assigned to them respectively that is to say-The word

' L

Master," shall extend to, and include all employers male or female

in the scveral cases to which this Act is intended to apply; the word

" Servant," shall extend to, and include all persons engaged in

the service of another, either at salary or wages, or to perform work at a certain price by the piece or in gross; the word "Justice," shall mean Justice of the Peace for the said Province.

vants not cntcring 4, If any person shall coiltract with another, either in writing	I'unishment for scr-
into service according or verbally, to serve him as a servant for any time whatsoever, or
ing themselves, or a~rccmen"abscnG in any rnkmer, and shall not enter into or- commence his service
guilty ~ f n ~ g i e ~ t, m i ~ accordi~g to his contract, or having entered into such service, shall

Or miBde-

meanor. absent hmself therefrom before the term of his contract shall bc completed, or neglect to fulfil the samc, or bc guilty of any mis- conduct or misdemcanor in the execution thereof, or otherwise respecting the same, i t shall be lawf~d for any two or more Justices,

Justices may i!spiaon on -conri&on, to commit every such offender- to the common gaol, or abate wogcr. there t~ remain for a reasonable time, not exceeding three calendar

months; or in lieu thereof, to punish the said offender by abating

the 4 l o k or any part of his wages.

Servants obtaining 5. If any person who shall enter into any agreement, either written

money under pro-

tence of service, or	01' parol, to serve as a servant for any period whatsocvcr, for any
beyrmd the amount
advances of nagcs	wages or salary, or to do, perforiu, finish, or complete any work, job,
actually earned, maz	or employment, taken in task by the piecc or in gross, shall, under
bc sentenced to im-
prisonment, with fJr	pretence of requiring the same to enable him to pay the expense of
without hard labor,	his journey to thc placc at which and where he has so engaged to
for any period n ~ t
exceeding three	serve, or under any prctcnce, obtain or procure from his master any
months.	sum of money or goods, as an advance on account of the wages at which he shall have so ellgaged to serve, or in part of the amount for which he shall have agreed to perform any such work, job, or emplog- ment as aforesaid, and shall, after obtaining the same, neglect or ref~~se, without reasonable excuse, forthwith to go to t l ~ e place at
which he shall have been so engaged to work or to serve, during the time for which he shall have agreed, or shall refuse to perform or complete my work, job, or cmploynlcnt which he had engagcd to perform or complcte as aforesaid, it shall be lawful for any two or more Justices, on conviction, to commit every person so offending as aforesaid to thc common gaol, there to remain for any term not exceeding three calendar months, and, at the discretion of such Justices, to be kept to hard labor for the whole or any part of Ihe said term.
Penalty for scrvnnta

negligently or wilfully 6. If any servant sllall wilfully or with culpable negligence spoil

01. destroy 8114. goods, wares, work, or'materials for work, committed

q,,,Ii,g ,, lo5ing

p I opei ty. to his charge or caw, or iiljure or lose any cattle, sheep, horses, or other property belonging to or in the charge of his mister, every such servant, on proof thereof by or before any two or more Justices, s l d l forfeit aud pay reasonable damages for such property so

spoiled,

26" & 27" VICTORIIZE, No. 7.

Masters and 8c1.vn~zts A c t. 1 5 6 3.

spoiled, destroyed, injured, or lost' as aforesaid; but not exceeding the valne thereof, and not exceeding in any case Twenty Pounds: Providccl always that this clause sllall not apply to any case of Pro~.iso.

felonious injury to property.

7. In all cases of wages or money due and payable to any servant, Rccovery of wages.

for work not excectling Thirty Pounds, it shall be lawfill for any two OF more Justices to hear and dctcrminc the complaint, and to make such order for the paynicnt of the said W-ages or n~oney not exceeding Thirty Pounds, with the costs incurred by the scrvant in prosecuting such claim, as sllall to such Justices appear reasonable and just.

8, KO levy shall be made for m y wages due by a person who has Proviso astoinsoL. vents.

been adjudged insolvent, subsequent to such wages becoming due; and any person imprisoned for nonpymcnt of wages, and after- w a d s hccoming insolvent, shall hc discharged out of cnstody, so far as rcspccts the non-payment of such wages, so soon as he shall have b ~ c n d ~ d y adjuclged insohrent and shall have obtained the protec- tion of the Court of Insolvency.

9. When ally wilges or money due for work shall be paid to any servants paid ia cheques, orders, or

servant by ally cheque, clraft, order, or note ill writing upon any d rfi f t ~, which had been

bank or any person, ancl thc same shall Et: dishonored, no scrvmlt dibllonor4 to be entitled to rerov-r tho

shall thereby be deprived of any remedy given to hi111 by this Act for ,,,,,,t ,ith r-ason-

the recovery of his wagcs, but every such servant shall be entitled to a M c " ~ ~ ~ c ' *

recover such rcaso~~i~blc darnagcs as he may have sustained in conse-

quence of the dishonor of such cheque, draft, orcler, or note; and

such damages shall be recoverable as wages due to such servant.

10. Two or nlo14c Justicrs may hear and cletermine any comp1;iint Scrvantsrnoctir~~ with

of m y servant against any master for refusal of necessary pro- ,,,,,,,yrcaonnr ill-usage or ill-trcat-

vision, or other ill-trcntmcnt whatsoever of or towards any such amends.

servant; and upon proof thcreof upon oath to thcir satisfaction, to

order and award mch ainencls to be made to any such scrvant as

they shall think fair ancl reasonnhlc: Provided that in no case shall prOvisn.

such ainencls as aforesaid excecd thc amount of six months' wages

of such scrvmt.

l l. The provisions of this Act shall apply to all contracts by in- S u v ' n ' 5 ~ ~ ~ ~ e ( l in

othcr coucitries for

denture or othcr written ngrecmcnt made by persons in the United ~crvico i o south

Kingdom, or any of thc dependencies thereof, and in foreign conntrics,	Aust'afi~'*
with persons about to proceed to, or actually resident in the said Province, or with the agents of such persons, for service in the said Provir,ce.

li .ration Agcnt in

12. The Emigration Agent in London for South Australia may ~ondon to bc ngcut

enter into any agreement for hiring, on behalf of al.iy pmmn who under clause 11.

shall have defrayed in whole or in part tlic cost of thc passage of

anF emigrant to the said Province, with the person whosc passage

shdl have bgen so def'raycd.

13. l11

26" & 27" VICTORIX, No. 7.

Masters and Servants Act.-1863.

from contracts on the Servants to be free 13. In the case of any contract of hiring, made out of the said

expirationof one year, Province, it shall be lawful for any two or more Justices, after the

masters' money spent

by r ~ a y i n g their expiration of one year from the commencement of service under such

for conveying them	contract within the said Province, to put an end to such contract at
to the Colony.	the instance of the person contracting to serve under the same, upon payment by such servant to his master of suck sum of money, not exceeding in any case the amount of any moneys paid or advanced

on account of the conveyance to tlie said Provincc mid outfit of such

servant, his wife and family, if any, as in tlie opinion of such two Justices shall he a reasonable compcasation to the master for any Ioss he may sustain by reason of the putting an cncl to such contract, and such matter shall be heard and determined Isy such Justices, in

a summary manner.

Apprenticctr.

Proviso. 14. All the provisions of this Act shall extend to apprentices: Pro- vided always, that no indencure or agreement shall be cancelled or discharged, in the case of any apprentice, under thc powers herein- after conferred, except on proof to the satisfaction of the Justices of ill-treatment on the part of the master, or incorrigible nlisconduct on the part of the apprentice.

Penalty for harbaring	15, If any pcrson s h d linowingly and ~ullmfully	employ, retain,
eervants already en-

gaged.	or harbor any servant adrcady employed or under contract to serve
any other person, before the detcrininntion of such c o n t p ~ t, every person SO offending shall, on conviction before any two or more Justices, for every such off'cnce, forfeit arid pay a sum not excecdirlg Ywenty Pounds.

rartowa, ngrnt., anit 16. Whcre any contract shall have been made by, or any work

servants, to be

considered principals. or business shall be entrusted to the nianagement or superintendence

of the agent, overseer, or irlarrnger of any master, and also wherc .., two or more persons ehdl carry on busiliess as partners, in every such case rsspecti~ely the like proceedings sliall he had by or against	such agent, overseer, manager, or any onc or more of such partner S,	and shall bc as effectual for all the purposes o f this Act as if the
same had been had by or against the principal or all the partners: Provided that where any such l~roieedinq shall be had against an agent, ovcrseer, or manager, in respect of any cause of complaint, not being for the personal ~nisconduct of such agent, overseer, or manager, all sums of money paid or satisfied bp such agent, overseer, or manager, by virtue of any orde~: of Justicrs made in pursuance hereof, shdl be recoverable by him against the master from whom the same is adjudged to be duc, or shall be allowed to him out of any money at the time of payment, or afterwards in his hands, belonging
to such mastcr.

AB t. m~rricd	en	17. Where any married woman, or infant under the age of twenty- one years,, shall have cause of coinl)llaint in any of the cases provided for by tlus Act, such complaint may be lodged, and all further pro- ceedings thereupon had, by and in the name of such married womrtn cn. infant, or of the sureties of the infaut in any indenture of appren-
and infants.

ticeship,

26" & 27" VICTORIB, No. 7.

Masters and Servants A c t. 1 8 6 3.

-

ticeship, or of any person nominated by such infant; and all such proceedings shall be as effectual, valid, and binding as if such

married woman were sole, or such infant were of full age. +

arising out of the relation of master a:id servant, whether herein- Jtutices. 18. All disputes, differences, demands, and causes of complaint, Jurisdiction of

before particularly provided for or not, shall be cognizable in a summary manner before two or more Justices, who are hereby em- powered, on the con~plaint of any party aggrieved, to hear and examine the parties or their agents and their witnesses upon oath, to decide and dcterinine all complaints and to make such order or award against either party, and to adjudge such satisfaction, damages, and costs to the party aggrieved, as in their discretion shall seem reasonable (but not exceeding the amount of Twenty Pounds unless expressly otherwise provided) and to enforce such order and award

if necessary by cancelling the indenture or agreement between the

parties, or by distress and sale of the goods of the person against whom the same shall be made, or in default of sufficient distress, by imprisonment in the common gaol for any period not exceeding three 'calendar months: Provided always that no such indenture Pr,yi,,,

or agreement shall be cancelled against the consent of the party in

whose favor such decision is given.

19. Nothing in this Act contained shall authorize any Justice to $ f $ ~ ~ ~ $ ~ ~ ~ h

exercise anv iurisdiction in the case of any servant who ahall be in own eervante.

the service of such Jxstise, or in any case i i which such Justice may

be directly interested,,

20. I n any proceedings under this Act, it shall not be necessary N o ~ ~ o c ~ ~ + ~ w ~ P ~ o v ~ execution of agree-

to prove due execution of any agreement, unless the party against ments dxcept in whom such agreement is produced shall dispute the execution forgeql &G thereof on the ground of forgery, fraud, incapacity, or other like

cause, and the onus of proving such forgery, fraud, or other like

cause, shall lie on the party alleging the same.

21. For any offence against this Act any two Justices may, if it Magiatrates may, at

shall seem to them to meet the justice of the case, in lieu of the oeencwbpedtiM, discretion, punish

~unishments herebv prescribed (bnt besides awar&n~ an abatement

I 1 0

or forfeiture of wages, if any): impose a perdty not exceeding Twenty Pounds, with costs, which shall be recoverable in a surn- mary manner, according to the laws for regulating the proceedings of the Justices of the Peace.

22. No conviction, award, or order under this Act, nor any adjudi- NO , & , a

cation made on appeal therefrom, shall be quashed for want of form, or removed by writ of certiorari, or otherwise, into the Supreme Court of the said Province; and no warrant of commitment shall be held void by reason of any defect therein, provided it be therein alleged that the party has b k n convicted, and that there be a goad and valid conviction to sustain the same.

23. Wherever,

Q4 26" & 27" VICTORId3, No. 7.

Jfusters and 8ervants Act.-1 863.

23. Wherever, in an Orcliiiance passed on the twenty-eighth day

Whders

17 and 18 and Vict., c. 101.

NO. 7, 1844.	of February, one thousand eight hundred and forty-four, "TO regulate the Whale Fishery Service in South Australia," reference is made to
an Ortiinance, madc and passed on the fifteenth day of November,
1841, intituled " An Act for the summary determination of disputes between Masters and Servants ;" and to an Act of the Session of Yarliarnent of the fifth and sixth years of the reign of his late

6 and 6 Wm. Iv.,

0. 19. Majesty ICingIYilliam the Fourth, intitnlcd An Act to amend and

consolidate the ~ F V S relating to the Merchant Seamen of the TJnited Kingdom, and for forming and maintaining a Rcgister of all the Men engaged in that service," which said Ordinance and Act of Parliament hare been heretofore repealed, the same shall be held to mean and al~ply to this Act, and to an Act passed ill the Session of Padiavncnt of the seventeenth and eighteenth years of the reign of

17 and 18Vict., c. 104. Her present Rhjtjesty, intituled 'c An Act to airie~id and consolidate

the Laws relating to Merchant Shipping," respectively.

NottonffertOrdinance 24. Nothing hewin contailled shall extcnd to repeal or alter an

NO, B of 1848.

Ordinanre No. 8 of 1848, K To providc by xppreilticesliiy for t l ~

protcctim, gonrdiaiiship, and aclvanccmcnt in life of i.:migrant

Orphan Children, and of other poor Children maintained at the

public expense."

Appropriation of 25. Alkfines or pcndties iumrred under this Act shaH be paid to

penalties.

the Treasurer on behalf of I3er RXaj'esty, for the public nscs of thc

said l'sovince and support of thc Governnlent thereof.

summary procedure.

26. All proceedings under this Act before Justiccs shall be con- ducted as appointed by, and slid1 bc regulated under thc Ordinance No. G of 1850, intituled An Ordiamce to facilitate the perfozmauce of the dutics of Justices of the Pence out of Scssiolls, with respect to summmy convictions and orders."

27. There shall be an*,z~'peal from any order m con~iction of any

Justices under this Act, or m y order of Justiccs dismissing any informatkn under this Act, which appeal shall bc to the Adelaide Local Court of Full Jurisdiction d y, and the proceedings on such appeal shall.be conducted in manner appointed by the said Ordinance No. G of 1850 for appcals to Ilocnl Courts; but the Local Court of Adelaide aforesaid may make such order ss to the payment of costs of appeal as thcy shall think fit, although such costs may exceed Ten

Pounds.

I11 the iianie and on behalf of the Queen I hereby assent to

this Act.

D. DAJJY, Governor.

Adelaide : Printed by authority, by W. 0, Cox, Governmsnt Printer, Victoria-apart