Grace v Taylor [1910] HCA 65; (1910) 11 CLR 537 (24 November 1910)

HIGH COURT OF AUSTRALIA

Albert Edward Grace Defendant, Appellant; and Walter I. Taylor Informant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

24 November 1910

Griffith C.J., Barton, O'Connor and Isaacs JJ.

Blacket, for the appellant.

Whitfeld and Pickburn, for the respondent.

Griffith C.J.

The question for determination in this case is so short and simple that it is difficult to give any reasons for our decision, beyond saying that we do not agree with the learned Judge. The question is as to the proper construction of a section of the Minimum Wage Act 1908, which seems to me to be expressed in very plain English. The Act is entitled: "An Act to provide a minimum wage for certain persons; to make better provision in certain cases for the payment of overtime and tea-money"; and for other purposes. Sec. 3 provides that a "workman works overtime within the meaning of this Act when he works more than forty-eight hours in any week or after six o'clock in the evening on any working day." This section contemplates two kinds of overtime, overtime "in any week," and overtime "on any working day."

Sec. 8 says:—"Where any workman ... being a male under sixteen years of age or a female, is required by his employer to work overtime on any day, the employer shall on such day pay such workman ... a sum of not less than sixpence as tea-money." The expression "overtime on any day" appears to me obviously to refer to the kind of overtime described in sec. 3 as working "after six o'clock in the evening on any working day," and not to the kind of overtime which is only overtime by reason of the employé having already worked for 48 hours in the same week. If there could be any doubt about the meaning, the purpose for which the money is required to be paid is stated to be "for tea money," obviously to enable the employé to get a meal. To make its meaning still more clear, the section provides that the tea-money is to be paid "on such day," that is, so as to provide the employé with cash to pay for the meal. This meaning seems to me to be so clear that it is unnecessary to pursue the matter further. Other sections of the Act referred to by Mr. Whitfeld, so far as they have any bearing on the matter, tend to confirm this conclusion. I think, therefore, that the learned Judge came to a wrong conclusion, and that the appeal should be allowed.

Barton J. and

O'Connor J.

concurred.

Isaacs J.

I agree. The learned Judge, in his judgment, said that "at 9 a.m. on 23rd April the workman had worked 48 hours, and she worked until 1 p.m. that day, working four hours overtime for the week. She was not paid tea-money for such overtime." There is no doubt this was overtime within sec. 6 of the Act for which she was entitled to be paid not less than 3d. per hour or at her option under sec. 37 of the Factories and Shops Act 1896. But she would not be entitled to 6d. for tea money merely because she had worked over 48 hours in the week. She could only be entitled to this under sec. 8 if she had worked after six o'clock in the evening on any working day. With the greatest respect to the learned Judge, he has omitted to preserve the distinction between these two sections.

Appeal allowed.

Solicitor, for appellant, J. V. Tillett, Crown Solicitor.

Solicitor, for respondent, G. H. Leibins.