H V McKay Pty Ltd v Hunt [1926] HCA 36; (1926) 38 CLR 308 (18 October 1926)

HIGH COURT OF AUSTRALIA

H. V McKay Proprietary Limited Defendant, Appellant; and Hunt Informant, Respondent.

H C of A

On appeal from a Court of Petty Sessions of Victoria.

18 October 1926

Knox C.J., Isaacs, Higgins, Gavan Duffy, Rich and Starke JJ.

Ham, for the appellant.

Fullagar, for the respondent.

Ham, in reply.

The following written judgments were delivered:—

Oct. 18

Knox C.J.,

Gavan Duffy, Rich and Starke JJ.

The decision of this Court in Troy v. Wrigglesworth[1] establishes the competency of this appeal; and all that it is necessary to say on the rest of the case is that it is completely covered by the principles laid down in the Clyde Engineering Co.'s Case[2].

In the present case it is attempted to support a minimum wage fixed by the Wages Board as against a lower minimum wage fixed by a prior award of the Commonwealth Court of Conciliation and Arbitration in a dispute in which the question as to the amount at which that wage should stand was in issue between the parties. It is plain that the Wages Board determinations made pursuant to the Victorian law cannot be sustained in opposition to the earlier Federal award made pursuant to the Federal law.

The appeal should be allowed and the conviction quashed.

Isaacs J.

This case is in all material respects indistinguishable from the Forty-four Hours Case[3].

The reasons I gave in that case I apply to this, with the result that the Victorian legislation necessary to support the conviction is inconsistent with the Federal legislation supporting and enforcing the award, and is, therefore, by force of sec. 109 of the Commonwealth Constitution, to that extent invalid.

The decision of the Court of Petty Sessions with respect to the operation of that section in the circumstances was consequently erroneous, and this appeal should be allowed.

Higgins J.

By an award of the Commonwealth Court which came into operation on 31st March 1925 the minimum weekly wage prescribed for adult drivers of one horse was £4 9s. 6d., in Melbourne. The award was made in a dispute extending beyond the limits of any one State. The period specified in the award for its operation was one month; but under the Act the award continues in force until a new award has been made (sec. 28). The award is binding on such employers only as are parties to the award; and the appellant Company was an employer party to the award. By a determination of the Victorian Wages Board for carters and drivers, gazetted on 14th December 1925, the minimum weekly wage prescribed for Victorian employers was, as to Melbourne, £4 12s. 6d. The appellant company paid one Barrett, a driver of one horse, only £4 9s. 6d. for the week ending 23rd January 1926.

On an information and summons under the Factories and Shops Act 1915 of Victoria (sec. 222), the Police Magistrate imposed on the company a fine of £3 with costs—notwithstanding the recent decision of this Court in Clyde Engineering Co. v. Cowburn[4]. As I understand the reasons of the Police Magistrate, he thought he ought to obey two previous decisions of the High Court, leaving it to this Court to set aside the conviction if wrong.

If I were free to act on my personal opinion, I confess that I should uphold the conviction. My reasons are given in my judgment in the Clyde Engineering Case[5]. The State Parliament having the general power to deal with labour conditions, the determination of the State Wages Boards should be obeyed and enforced, except so far as the command of the Wages Board is inconsistent with the command of the Commonwealth Court, and invalid under sec. 109 of the Constitution (or sec. 30 of the Commonwealth Conciliation and Arbitration Act). There is, to my mind, no inconsistency where the Commonwealth award, as in this case, has merely fixed a minimum rate, leaving it open to the parties to agree for a higher rate, and leaving it open to the Wages Board to prescribe a higher rate. Whatever wage the employer and employee can agree to, the Wages Board can prescribe.

But I am not free to give effect to my personal opinion. I am bound by the decision of the majority of the Full Bench in the Clyde Engineering Case[6]; and the majority have taken the view, for varying reasons, that a State authority cannot prescribe better terms for an employee whose union is subject to a Commonwealth Court award than the Commonwealth Court has prescribed. In my opinion, under these circumstances the appeal must be allowed.

As to the procedure adopted in this case, I am of opinion that this Court is the proper Court to hear this appeal. The decision of the case in the Police Court involved a matter arising under the Constitution as well as involving its interpretation (in particular, the meaning of sec. 109); the Police Court was given by sec. 39 of the Judiciary Act jurisdiction over such a matter; and under sec. 73 of the Constitution this Court is given jurisdiction to hear appeals from all orders of Courts exercising Federal jurisdiction.

Appeal allowed and conviction quashed.

Solicitors for the appellant, Derham, Robertson & Derham.

Solicitor for the respondent, F. G. Menzies, Crown Solicitor for Victoria.

[1] [1919] HCA 31; (1919) 26 C.L.R. 305.

[2] [1926] HCA 6; (1926) 37 C.L.R. 466.

[3] [1926] HCA 6; (1926) 37 C.L.R. 466.

[4] [1926] HCA 6; (1926) 37 C.L.R. 466.

[5] [1926] HCA 6; (1926) 37 C.L.R. 466.

[6] [1926] HCA 6; (1926) 37 C.L.R. 466.