No. XXVIII.
An Act to regulate the Law between Masters
| and Servants. | [11th March, 1857.] |
| WH E R E A S | N e w | Sou th W a l e s | re la t ing | to | Mas te r s | a n d | Servants have |
| the Ac t s of t h e Governor | and | Legis la t ive Counci l of |
| expired a n d i t is deemed expedient to m a k e other provisions | ins tead |
| thereof | Be i t enac ted by t h e Queen ' s M o s t Exce l len t | Majesty by and |
| wi th t h e advice and consent of t h e Legis la t ive Council and | Legis la t ive |
| Assembly | of | N e w | South W a l e s in | P a r l i a m e n t | assembled | and | by |
| t h e au tho r i t y | of t h e same as follows | :— |
1 . The following words and expressions in th is A c t shal l have
| t h e m e a n i n g hereby assigned to t h e m | unless | t h e r e | be | someth ing | in |
| t he subject | or con tex t r e p u g n a n t | to such | const ruct ion. |
T h e word " mas te r " shal l ex tend to and include all employers male or female of servants and also agents super in tenden ts overseers or o the r persons ac t ing for or on behalf of any employer .
| The word | " s e r v a n t " shal l inc lude | all | agr icu l tu ra l | and | other |
| laborers shepherds w a t c h m e n stockmen, grooms al l | domest ic |
and o the r servants artificers j o u r n e y m e n handicraf t smen gardeners vine-dressers spl i t ters fencers shearers sheep- washers reapers mowers h a y m a k e r s h i red a n d engaged in
| th is Colony e i ther | by verbal | or | w r i t t e n | con t rac t | and | all |
| persons | engaged | in t h e | U n i t e d | K i n g d o m | of | Grea t | B r i t a i n |
| a n d | I r e l a n d | or in any of t h e Br i t i sh Colonies in t h e | Br i t i sh |
Eas t I n d i a Possessions or in Foreign Count r ies by i nden tu r e or o ther wr i t t en ag reemen t as shepherds or laborers or otherwise .
| The word " J u s t i c e s " shal l | m e a n | any two or | more Jus t i ces of |
| t h e Peace assembled and ac t ing in P e t t y | Sessions and | in |
| open Cour t | in | t h e dis t r ic t or place | neares t to | t h e | dis t r ic t |
| or place | where | t h e | m a t t e r | r equ i r i ng | t h e | cognizance | of |
| such | Jus t i ces | arises | or | where | t h e mas te r a n d t h e servant |
a re res id ing or sojourning w h e n t h e compla in t is made .
| The | word " c a t t l e " shal l inc lude cows bul ls bul locks heifers s teers calves horses mares colts fillies foals asses mules sheep lambs goats a n d swine. |
| a cer ta in work a t a cer ta in pr ice and shall n o t en te r in to his service or commence his work according to his cont rac t (such con t rac t be ing in wr i t ing and s igned by t h e par t ies there to) or if any se rvan t hav ing entered in to such service or commenced such work shal l absent himself therefrom w i t h o u t reasonable cause before t he t e r m of his con t rac t shall have expired or before t h e work cont rac ted for shall be completed (whether such cont rac t shall be in wr i t ing or no t in wri t ing) or shal l neglec t to fulfil t he same or be gu i l ty of any o ther misconduct or i l l behaviour in t h e execut ion thereof such offender u p o n being lawfully convicted thereof shal l forfeit a n d pay any s u m of money no t exceeding t e n pounds and in default of p a y m e n t t h e same shal l be levied by distress a n d sale of t h e goods and chat te l s of t h e offender a n d in case n o sufficient distress can be found whereon to levy t h e fine a n d costs t h e offender shal l be impr i soned for any period no t exceeding four teen days or in l ieu thereof a t t h e discret ion of t h e | convict ing |
| 2. If any servant shal l cont rac t w i t h | any person to serve h i m |
| for any t ime or in any m a n n e r or t o perform | for h i m as such servant |
| convic t ing Jus t i ces such offender | shal l forfeit | t h e whole or such p a r t |
| of | t h e wages t h e n due as t h e said Jus t i ce s shal l t h i n k | fit. |
| 3 . | I f | any servant after hav ing en te red in to any con t rac t | e i the r |
wr i t t en or paro l w i th any m a s t e r t o serve h i m for a n y t i m e or in a n y m a n n e r shal l ob ta in from such mas t e r any advance of money or goods on account of t he wages for which he shal l have so con t rac ted to serve and shal l after ob ta in ing the same neglect or refuse for thwi th to go to t he place a t which h e shal l have so cont rac ted to serve or shal l refuse to perform the work h e shal l have so cont rac ted to perform to t h e ex t en t of t h e advance of wages so m a d e wi thou t reasonable cause such servant so offending shal l u p o n be ing lawfully convicted thereof be imprisoned wi th or wi thou t h a r d labor for any t e r m n o t exceeding
| th ree | mon ths .
4 . I f any servant shal l wilfully or negl igent ly spoil or des t roy |
any goods wares w o r k or mater ia l s for work commi t t ed to his charge or care or shal l wilfully abandon lose or in jure any cat t le or a n y o ther p rope r ty be long ing to or in t h e cha rge of his employer every such offender be ing thereof lawfully convicted shal l forfeit a n d pay reason able compensat ion for such ca t t le or p rope r ty so spoiled destroyed injured or lost as aforesaid and in default of p a y m e n t or satisfaction of such damages shal l be commit ted to gaol b y t h e convict ing Jus t i ces for any period n o t exceeding t h r e e m o n t h s w i t h or w i t h o u t h a r d labor
| a t t h e discret ion of such Jus t i ces | Prov ided t h a t in all cases of | neg l igen t |
in jury u n d e r th i s clause where any compensat ion shal l be assessed agains t a n y such offender t h e mode of satisfying t h e same shal l be b y distress and sale of t h e goods a n d chat te l s of t h e offender a n d in case n o sufficient distress can be found whereon to levy t h e compensa t ion awarded and costs t he offender shal l be impr i soned for any per iod no t exceeding fourteen days.
5. I n all cases of wages no t exceeding fifty pounds which shal l
be due and payable to any servant i t shall be lawful for any J u s t i c e
whe re or nea r to t h e place where t h e service shall have been performed
| or where or near to t h e place where t h e p a r t y or | ei ther of | t h e par t ies |
| u p o n | w h o m | t h e | claim | is m a d e shal l | be | or reside | u p o n | compla in t |
| m a d e to such Jus t i ce by such se rvant or on his behalf t o | s u m m o n |
| such p a r t y or par t ies to appear before any two Jus t i ces a t | t h e | neares t |
Cour t of P e t t y Sessions to answer such compla in t a n d t h e Jus t i ces t he r e assembled are he reby empowered to examine t h e par t ies and the i r respect ive witnesses (if t he r e be any) t o u c h i n g t h e compla in t
| a n d t h e a m o u n t of | wages due a n d to inspect any ag reement | or |
| m e n t of t he said wages n o t exceeding fifty pounds wi th t h e costs | dupl icate copy thereof if p roduced a n d to m a k e such order for pay |
| incur red by t h e servant in p rosecu t ing such claim or any damages t h e se rvant m a y have sus ta ined by the neglec t of h is mas te r t o pay t h e wages so found to be due as shal l to such Jus t i ces appear reasonable a n d j u s t a n d in case such order shal l n o t be for thwi th obeyed i t shal l be lawful for such Jus t i ces to issue the i r w a r r a n t t o levy t h e a m o u n t of wages awarded to be due by distress a n d sale of t h e goods a n d cha t te l s of t h e p a r t y on w h o m such order for p a y m e n t shal l |
| be m a d e a n d all t h e costs charges a n d expenses inc lud ing t h e | damages | |
| incu r red by t h e servant in t he m a k i n g a n d p rosecu t ing t h e compla in t as well as t he costs a n d charges of t h e distress a n d levy and if such levy canno t be made or shall prove insufficient t h e n such Jus t i ces a re he reby empowered to cause t h e p a r t y u p o n w h o m t h e order shal l be made to be apprehended a n d commi t t ed to gaol there to remain for any per iod no t exceeding four teen days or unless p a y m e n t shal l b e |
| sooner m a d e of t h e | a m o u n t of t h e wages so awarded a n d of al l | costs | |
| charges and | expenses a t t e n d i n g the recovery thereof or u n t i l his es ta te | |
| shall be seques t ra ted as insolvent according to law, |
6. I t shal l be lawful for any Jus t i ce residing wi th in t he dis t r ic t
in which such se rvant is or h a t h been employed upon t h e compla in t of any such se rvant t ouch ing or concerning the non -paymen t of h is wages to s u m m o n t h e agen t m a n a g e r or overseer of such mas te r to be and appear before a n y two or more Jus t i ces at t he neares t Cour t of P e t t y Sessions a n d t h e Jus t i ces t h e n assembled may hear and deter m i n e the m a t t e r of t h e compla in t and m a k e a n order for t h e p a y m e n t by such agen t overseer or m a n a g e r to such servant of so m u c h wages as to such Jus t i ces shall appear to be j u s t l y due Provided t h a t t h e sum in ques t ion do n o t exceed fifty pounds and in case of refusal or non -paymen t of a n y s u m so ordered to be paid by such agen t overseer or m a n a g e r or in case such agent overseer or m a n a g e r shall neglect or refuse to give a draft or order on his mas te r or employer for such s u m as t h e Jus t i ce s have awarded wi th costs t h e n such Jus t i ce or Jus t i ces
| shall and m a y issue | the i r w a r r a n t | to | levy t h e | same | by distress | a n d |
sale of t he goods a n d chat te l s of such mas te r or employer .
7. W h e n any wages shall be paid to any servant by a n y cheque draft order or no te in wr i t ing upon any b a n k or any person and t h e same shal l be dishonored no servant shal l t he reby be deprived of a n y r emedy given to h i m by th i s A c t for t he recovery of his wages b u t every such servant shal l be ent i t led to recover such reasonable damages as ho m a y have sus ta ined in consequence of t he dishonor of such cheque draft order or no te a n d such damages shall be recoverable as wages due to such servant in t h e same way t h a t wages are hereinbefore directed to be recovered.
8. I f any mas t e r shall unlawful ly deta in or refuse to deliver t h e
clothes wear ing appare l bedding tools or any goods in his possession
be long ing to any servant i t shall be lawful for a n y J u s t i c e to inqu i re
| i n to t he m a t t e r | of such de ten t ion | or refusal | on oa th in a s u m m a r y | way |
a n d to m a k e an order for t he delivery wi th in such reasonable t i m e as t h e J u s t i c e may appoint of such clothes appare l bedding tools or o the r p rope r ty and if any mas te r shall refuse or neglect to obey such order he shal l forfeit and pay a pena l ty not exceeding five pounds for every such offence a n d i t shall be lawful for such Jus t i ce by w a r r a n t u n d e r his h a n d to cause such effects to be seized and delivered over to such servant .
9. I f any person shal l conceal employ or re ta in or assist in conceal ing employing or r e t a in ing any servant who shall have deserted from the service of any master or otherwise absconded or absented himself from d u t y k n o w i n g such servant to have deser ted or otherwise
| pe r suade a n y such servant by words or by any o ther means whatsoever | absconded or absented himself from his d u t y or shal l cause induce or |
| to violate or a t t e m p t to violate any ag reemen t (whether in w r i t i n g or n o t in wr i t ing) which he m a y have entered in to to serve wi th any m a s t e r such person so offending shall for every such offence u p o n con vict ion thereof forfeit a n d pay a pena l ty n o t exceeding t en pounds or in case of non -paymen t thereof i t shall be lawful for t h e convic t ing Jus t i ces to commit t h e person so offending to any gaol for any te rm n o t exceeding four teen days t h e said commi tmen t to be determined |
| on p a y m e n t | of t h e | pena l ty and | costs. | |
| 10. I t shall be lawful for any two or more Jus t i ces in any case to hea r a n d de te rmine in a s u m m a r y m a n n e r any compla in t difference or d ispute which shall happen and arise be tween any such servant and h is mas t e r a n d to m a k e such order or award against e i ther pa r ty as to such Jus t i ce s shall seem meet and every such order or award to enforce by cancel l ing t h e i nden tu r e or agreement between t h e par t ies if t h e |
| Jus t i ces should t h i n k fit or by impos ing on ei ther p a r t y a | fine | or | |
| pena l ty p ropor t iona te to t h e offence b u t not exceeding t h e s u m of t en pounds and in default of paymen t by execut ion agains t t he goods |
effects
| effects or o ther p rope r ty | of t h e p a r t y | aga ins t | w h o m | such order | or |
award shal l be m a d e or in default of sufficient distress b y ar res t a n d impr i sonment of such p a r t y for any t ime not exceeding fourteen days.
| 1 1 . | A l l offences unde r t h i s Ac t shall be hea rd | a n d | de te rmined |
| in a s u m m a r y way before any two or more Jus t ices in | P e t t y | Sessions |
| assembled as by law or th i s Ac t is or shall be provided | A n d n o | p ro |
| ceeding unde r th i s A c t shall be removed by certiorari | in to t h e Supreme |
| Cour t and all t h e forms of informat ion | s u m m o n s | war r an t s orders | and |
| convictions u n d e r th i s A c t m a y be p repa red in t he | form | requ i r ed | by |
| the | A c t | of | P a r l i a m e n t | passed | in | t h e Session of t h e | e leventh | and |
twelf th year of t h e r e ign of H e r Majesty Queen Victor ia in t i tu led " An Act to facilitate the performance of the duties of Justices of the " Peace out of Sessions within England and Wales with respect to " summary Convictions and Orders " and no proceedings u n d e r th i s A c t shal l be inval ida ted if p repared in a n y other form which m a y
| subs tan t ia l ly | meet | t h e | mer i t s | of t he | case | Provided | a lways | t h a t | n o |
| w a r r a n t shal l issue for t h e apprehens ion | in | t h e | first | ins tance | of a n y |
person agains t w h o m any charge m a y be m a d e unde r t h e provisions of th is A c t unless i t be m a d e to appear on oa th to t h e satisfaction of t he J u s t i c e before w h o m t h e compla in t is preferred t h a t t he com p la inan t has reasonable cause to believe t h a t t he defendant has absconded or removed or is about to abscond or to remove from his usua l p lace of abode or from t h e dis t r ic t or place in wh ich he has usua l ly resided and t h a t t h e compla in t of t h e p a r t y m a k i n g the charge
| m a y be t he r eby | defeated. |
12. I t shall be lawful for any Clerk of P e t t y Sessions to issue
| his | s u m m o n s | in any case of | complaint u n d e r th i s A c t | m a d e | to | h i m |
personal ly by e i ther mas te r or servant a n d every such Clerk of P e t t y Sessions is hereby au thor ized to receive such compla in t a n d i n his discret ion h a v i n g reduced t h e same to wr i t i ng a n d obtained t h e r e t o t h e s igna tu re of t h e person compla in ing to issue his s u m m o n s in t h e same form and m a n n e r as if t he same h a d been issued by a Ju s t i ce of t h e Peace and the same shal l have t h e same force a n d effect as if m a d e
| a n d issued by any such | Jus t i ce . |
| 13 . A n y | compla inan t | or defendant | u n d e r | th i s Ac t | m a y | be |
| examined as a witness in any case | A n d in prosecut ing a n y | offence |
u n d e r th i s A c t it shall no t be necessary for t h e purpose of p rov ing t h e execut ion of any ag reemen t to call any subscr ibing or a t t e s t ing witness
| the re to or to accoun t for t h e absence or t o prove t h e h a n d w r i t i n g of |
| any such subscr ibing or a t t e s t ing witness b u t every agreement m a y | be |
| proved | in | l ike m a n n e r | as | if | t he r e were | n o subscr ib ing | or | a t t e s t ing |
| witness | there to . |
| 1 1 . | N o t h i n g | in | th i s | A c t | shal l | au thor ize t h e impr i sonmen t | of | |
any female.
15 . I n cases where the neares t gaol m a y be a t a dis tance grea ter
| t h a n | t h i r t y miles | t h e | neares t | publ ic lock-up or watch-house | m a y | be |
| used as a gaol t inder th i s A c t | Provided | always | t h a t | n o t h i n g | here in |
conta ined shall au thor ize t he impr i sonmen t in such publ ic lock-up or watch-house of any person under th i s or t h e said rec i ted Act for a
| longer per iod t h a n four teen | days. |
| 16. This A c t m a y be | cited as t h e | " Mas t e r s a n d Servants A c t |
No. XXIX.