Shaw v United Felt Hats Pty Ltd [1927] HCA 38; (1927) 39 CLR 533 (6 October 1927)

HIGH COURT OF AUSTRALIA

Shaw Complainant, Appellant; and United Felt Hats Proprietary Limited Defendant, Respondent.

H C of A

On appeal from a Court of Petty Sessions of Victoria.

6 October 1927

Higgins, Gavan Duffy, Powers, Rich and Starke JJ.

Rundle, for the appellant.

Owen Dixon K.C. and Flannagan, for the respondent,

Higgins J.

Shortly stated, the question raised by this order nisi to review is whether an employee, under an award of the Commonwealth Court of Conciliation and Arbitration, is to be paid 4s. 4⅘d. per dozen, the minimum rate fixed in respect of the Fairfield Hat Mills for finishing soft hats, or 5s. per dozen, the minimum rate fixed in respect of the Denton Mills. The work done is precisely the same; but the Fairfield Mills employees agreed to a lower rate than the Denton Mill employees, and the Court of Conciliation is bound to accept the agreement.

Shaw, the appellant, was employed at the Denton Mills until the amalgamation of the mills in June 1925, and, subsequently, until those mills were closed. Then, from 10th October 1925 until 8th December 1925, almost two months, he had no work at the trade. So long as he continued at the Denton Mills, he was paid at the rate of 5s. per dozen. From 8th December he was employed at the Fairfield Mills, and both these concerns had been taken over in the amalgamation, together with other businesses, by United Felt Hats Pty. Ltd. The appellant says that while he was employed at Fairfield he ought to have been paid at the old Denton rates. As he was doing the same work under the same conditions at both places, this is a very natural thing for him to think; but if—whatever moral or other obligation there may be—there is no legal obligation to pay the higher rate, we must dismiss this appeal.

That brings us to the question of the effect of sec. 29 (ba) of the Commonwealth Conciliation and Arbitration Act 1904-1926, which provides: "29. The award of the Court shall be binding on ... (ba) in the case of employers, any successor, or any assignee or transmittee of the business of a party to the dispute or of a party bound by the award, including any corporation which has acquired or taken over the business of such a party." United Felt Hats Pty. Ltd. is a corporation which has taken over the businesses of the Denton and Fairfield and other mills. The only way I can see of reading that section as applicable to the amalgamation is to adopt the principle of reddendo singula singulis, business by business. In other words, as some covenants run with land, so the obligation runs, as it were, with the business. The criterion is the business; and it appears to me that, unless there is evidence establishing that the business upon which the appellant is employed is the old Denton business, it must be assumed that the place is the criterion of the business; and, as he is not working at the Denton Mills but is working at the Fairfield Mills, he must be paid at the Fairfield rate. I only say that that is the prima facie test, and I wish to guard myself against deciding that the Denton business could not, under certain circumstances, be proved to have been transferred bodily, without qualification or exception, to Fairfield. But there is no proof of that at all. The result is, in my opinion, that the appeal should be dismissed, and the order nisi discharged.

The proper remedy for the union and its members is to go to the Arbitration Court and to ask that Court to make such variation as may seem to that Court to be just. As I have already said, the award was based on an agreement by consent. The Arbitration Court cannot therefore be held responsible for the difficulties which have arisen.

Gavan Duffy J.

I think it unnecessary to express any opinion as to whether the amalgamation which took place in this case comes within the provisions of sec. 29 (ba); but if it does, then I think it necessary for the complainant to show that he has been employed in the particular business in respect of which the rate in question was fixed. That admittedly has not been done in this case, and, therefore, the complainant cannot succeed. The result is that the order nisi must be discharged.

Powers J.

I agree that the appeal should be dismissed, for the reasons given by my brother Higgins; and I also agree with what he has said as to an application to the Arbitration Court. I would point out that, although the award has worked satisfactorily for so many years, it is now impossible to continue it satisfactorily to either of the parties without variation. An application should be made to the Arbitration Court to make the award apply to the circumstances existing since the amalgamation of the different businesses carried on when the award was made.

Rich J.

There is no evidence in this case that Shaw was employed in the Denton business, and, assuming that sec. 29 (ba) applies to the case of an amalgamation, it must be read reddendo singula singulis. During the argument I pointed out that the Arbitration Court was the appropriate tribunal to deal with this case. That suggestion has been strengthened by what has fallen from my brothers Higgins and Powers. The appeal should be dismissed with costs.

Starke J.

I rest my decision on the narrow ground that it is not established in point of fact that the complainant was employed in the business of the Denton Hat Mills to which the defendant succeeded.

Appeal dismissed with costs.

Solicitor for the appellant, G. A. Rundle.

Solicitors for the respondent, Derham & Derham.