John Heine & Son Ltd v Pickard [1921] HCA 47; (1921) 29 CLR 592 (17 November 1921)

HIGH COURT OF AUSTRALIA

John Heine & Son Limited Appellant; and Pickard Respondent.

H C of A

17 November 1921

Knox C.J., Rich and Starke JJ.

Leverrier K.C. (with him Ferguson), for the appellant.

Flannery K.C. (with him Addison), for the respondent.

Knox C.J.

In this case I am clearly of opinion that the Magistrate's decision was right. It seems to me that the words of sub-clauses (a) and (g) of clause 2 are quite unambiguous, and we are not called on to find a solution of the question why they were put there. Looking at sub-clause (a) first, it deals with the minimum wages to be paid to apprentices and nothing else. Then it begins with an exception—"Except as provided in sub-clause (g)." The word "except" introduces necessarily so much of sub-clause (g) as relates to the minimum rates of wages and not to any other matter. Then, reading that into sub-clause (a), it is as follows: "Except that the minimum rate to be paid to an apprentice from time to time shall not be less than the minimum rate prescribed by or under the appropriate State laws, the minimum rates of wages to be paid by any respondent to apprentices shall be," &c. Reading the sub-clause that way, I can see no possible ambiguity, and where words in their ordinary sense are unambiguous it is not for the Court to raise an ambiguity by considering that if used in that sense they may have some unusual effect. In this case they have the effect of producing a discrimination whether read in the way for which Mr. Leverrier contends or in that for which Mr. Flannery contends, the only difference being that in the one case the discrimination would be in favour of one class of apprentices and in the other case against that class.

That being so, I can see no reason for saying that the Magistrate's decision was wrong, and in my opinion the appeal should be dismissed.

Rich J.

I agree.

Starke J.

I agree. One of the arguments which Mr. Leverrier relied on was that the provision at the end of sub-clause (g) is useless or, at all events, unnecessary. The argument fails to observe, as was pointed out during argument, that the provision has the effect of making the obligation an obligation of the Federal award and not merely an obligation having the sanction of the State law. One result of that has been that a prosecution for a contravention of the Federal award has been launched and has succeeded. But for the provision in question it would have been impossible for such a result to have followed. This merely shows that the provision is not so useless or unnecessary as might be thought. On an examination of sub-clause (g) it appears that the provision in this sub-clause that the minimum rate to be paid to apprentices is not to be less than the minimum rate prescribed by or under the appropriate State law leaves quite undetermined what is to be the position where the rate under the Federal award is greater than that under the State law. In that event sub-clause (a) must apply, and the minimum rate of wages fixed by it is to be paid—in this case 70s. per week.

Question answered No. Appellant to pay the costs of the appeal.

Solicitors for the appellant, Dawson, Waldron, Edwards & Nicholls.

Solicitors for the respondent, Sullivan Bros.