Australian Timber Workers' Union v Stewarts Ltd [1936] HCA 18; (1936) 55 CLR 72 (30 April 1936)

Australian Timber Workers' Union Informant, Appellant; and Stewarts Limited Defendant, Respondent.

The respondent was charged on information that it did in breach of an award of the Commonwealth Court of Conciliation and Arbitration employ and work an unapprenticed boy, and did not pay him the minimum rate of weekly wages provided by the award for an unapprenticed boy of his age. The award was binding upon the appellant union and its members, and also upon the respondent, but the boy was not a member of the union nor in any way bound by or subject to the award. He neither acquired rights nor incurred obligations under the award. But this Court has held, erroneously as I think, that the Arbitration Court may make awards prescribing wages which must be paid to persons who are neither parties to the proceedings in which the award is made nor to the dispute upon which those proceedings were founded (Metal Trades Employers Association v. Amalgamated Engineering Union[1]). Now the award in question here prescribes that the minimum rates of weekly wage to be paid to unapprenticed boys shall be as there prescribed. The boy was unapprenticed, and he was not paid the wage prescribed. So, unless the award is bad or beyond jurisdiction, the contravention is clear. The case is thoroughly unsatisfactory from my point of view, for the Court does not know the ambit of the dispute the foundation of the award, nor the claims made before the Arbitration Court. Prima facie, we must treat the award as valid (see Commonwealth Conciliation and Arbitration Act 1904-1934, sec. 31), and give English words their plain and ordinary meaning. The question stated by the magistrate for the opinion of this Court is whether his determination dismissing the information was erroneous. Actually I do not think it was, but I am bound by the decision of this Court to say that it was and that it should be set aside.

The appellant complains of the dismissal of an information under sec. 44 of the Commonwealth Conciliation and Arbitration Act 1904-1934.

The information was for committing a breach of an award by employing an unapprenticed boy and failing to pay him the minimum rate of wages prescribed by the award for unapprenticed boys of his age.

The term of the award alleged to be broken is a sub-clause devoted to the subject of unapprenticed boys. It simply provides:—"The minimum rates of weekly wage to be paid to unapprenticed boys shall be as follows." Then is set out a scale of wages graduated according to age.

The respondent did employ an unapprenticed boy and did not pay him the wage appropriate to his age. But the boy was not a member of the organization entitled to the benefit of the award. The respondent contends that the provision said to have been contravened does not apply except to boys who are members of the organization.

The logs of demand out of which the dispute settled by the award arose were not put in evidence. Since Metal Trades Employers Association v. Amalgamated Engineering Union[2] it cannot be denied that a dispute may exist which under the Constitution and the Act would justify an award requiring the employers to pay a prescribed wage to employees who are not members of the organization entitled to the benefit of the award and who are not otherwise parties to the dispute settled by the award. As this decision removes the objection, otherwise open, that in law such a dispute could not exist or warrant the award and as the ambit of the dispute in fact has not been the subject of investigation and proof in the proceedings in the Court below, the validity of the material clause of the award must be assumed for the purpose of our decision.

The question whether the clause extends to boys, not members of the organization, must, therefore, be dealt with as one of construction. It depends altogether on the meaning of the award ascertained by a consideration of the whole document. The provisions of the award which prescribe rates of wages for adult employees are restricted to men who are members of the organization. The restriction arises from the definition of the word "employee," which means, according to the award itself, any person who after a specified date is or becomes a member and is employed by employers, parties to the award. But there is no express restriction on the prima facie meaning of the language prescribing wages for unapprenticed boys. Its purpose, moreover, is altogether different. It forms part of a clause relating to unapprenticed juvenile labour. The preceding sub-clauses of the clause are clearly directed to dealing with the possible employment of juvenile labour to the prejudice of the employment of the more highly paid adult labour of members of the organization. The sub-clause relating to the pay of boys, in our opinion, pursues the same purpose. It provides that boys shall not be paid less than the prescribed rates, not merely in the interests of the boys, but because it is prejudicial to the adults to allow the employment of boys at an inadequate wage. There is not, in our opinion, any reason for restricting the meaning of the unqualified language of the clause and there is good reason for giving it its natural meaning.

We think a breach of the award was committed. The appeal should be allowed; the order of dismissal set aside and the information remitted to the magistrate.

Appeals allowed. Determinations set aside. Remit each matter to the magistrate with the opinion of this Court that his determination was erroneous. The respondent to pay to the appellant one set of costs only in respect of these appeals.

[1] [1935] HCA 79; (1935) 54 C.L.R. 387.

[2] [1935] HCA 79; (1935) 54 C.L.R. 387

High Court of Australia

Australian Timber Workers' Union v Stewarts Ltd [1936] HCA 18; (1936) 55 CLR 72 (30 April 1936)

HIGH COURT OF AUSTRALIA