Culbert v Clyde Engineering Co Ltd [1936] HCA 19; (1936) 54 CLR 544 (30 April 1936)

Culbert Informant, Appellant; and The Clyde Engineering Company Limited Defendant, Respondent.

The defendant was charged on information that it did apprentice a boy under the age of twenty-one years and did not apprentice him in accordance with the provisions of an award of the Commonwealth Court of Conciliation and Arbitration relating to timber workers. The award, under what are called subsidiary provisions relating to apprentices and unapprenticed boys, prescribed:—"(5) Apprentices shall be apprenticed in accordance with Schedule D (Deed of Apprenticeship). (6) Apprentices shall be apprenticed for a period of five years." The boy had been in the employ of the respondent from July 1933, but he was not, as I understand, a member of the Timber Workers' Union nor bound by nor subject to the award, and he had not been apprenticed. But in 1935 it was deemed advisable that he should enter into a deed of apprenticeship. The deed provided that the respondent would take and receive the apprentice for the full term of five years from 27th July 1933. The contention is that a deed in this form is not in accordance with the provisions of the award.

A boy is apprenticed so that he may be taught, and the requirement of the award that he shall be apprenticed for five years in accordance with the form in schedule D involves the obligation to teach him during that period. But that obligation cannot be performed for a time already past. I should not have thought that the deed was in accordance with the schedule. But it was said that the clauses in the award were merely for the purpose of determining whether a boy belonged or not to the apprentice class: if a deed were entered into in the form required by the schedule, then he was apprenticed, but otherwise he was an unapprenticed boy who could only be engaged in a limited sphere of operations. Such a construction of the award, however, runs counter to its structure and to the words used in it. The clauses limit the number of apprentices, but are quite explicit that apprentices shall enter into deeds of apprenticeship in the form in the schedule and for a term of five years so that they may be taught.

Again I record my view that the Arbitration Court has no jurisdiction to prescribe the obligations of parties to an award towards persons who have no connection with the industrial dispute nor the arbitral proceedings. This Court, however, has decided to the contrary (Metal Trades Employers Association v. Amalgamated Engineering Union[1]), and the present case but illustrates the difficulties that arise from the decision. Once more, I think the magistrate's determination was right, but I am bound by the decision of this Court to say that it was erroneous and that it should be set aside.

This is an appeal from an order of a Court of summary jurisdiction by which an information under sec. 44 of the Commonwealth Conciliation and Arbitration Act 1904-1934 was dismissed.

The information alleged that the respondent, an employer bound by an award of the Court of Conciliation and Arbitration, did commit a breach of the award in that it did on 22nd June 1935 apprentice a certain boy and did not apprentice him in accordance with the provisions of the award.

Under the heading "Subsidiary Provisions" that instrument deals somewhat elaborately in two clauses with apprentices and unapprenticed boys. The clause relating to unapprenticed boys authorizes the employment of a specified proportion of unapprenticed boys in any position they are capable of filling, including some kinds of work and excluding other kinds, which it particularizes. The clause implies that no unapprenticed boy may be employed except pursuant to this authority, although it does not expressly say so. The clause relating to apprentices provides that an employer (i) shall employ at least one apprentice and not more than one to each six journeymen machinists, (ii) shall not employ more than two apprentices to each six journeymen sawyers employed at full rates under the award, and (iii) may employ an apprentice to each saw-doctor. A sub-clause next provides that apprentices shall be apprenticed in accordance with schedule D (Deed of Apprenticeship). The sub-clause which follows says that apprentices shall be apprenticed for a period of five years. The clause contains a number of other sub-clauses dealing with the obligation of the employer to apprentices.

Schedule D is a lengthy form of indenture of apprenticeship, clause (a) of which contains a covenant by the employer that he will take and receive the apprentice as his apprentice for the full term of five years from the (blank) day of (blank) 19___.

It appears that the boy in question was first employed by the respondent on 27th July 1933. Probably he was not a member of the organization of employees entitled to the benefit of the award. At that time neither Long v. Chubbs Australian Co.[2], nor Metal Trades Employers' Association v. Amalgamated Engineering Union[3], had been decided and it may have been considered that the award could not affect the employment of boys, not members of the organization. At any rate, the boy was not apprenticed. But, on 22nd June 1935, the date laid in the information, the respondent and the boy executed an indenture of apprenticeship in the form of schedule D. Instead, however, of filling in a prospective date in the clause already quoted as the date from which the five years period was to run, the parties attempted to make the indenture retrospective to the date when the boy was first employed. The covenant, therefore, ran as follows: "That he the said employer will take and receive the said apprentice as his apprentice for the full term of five years from the twenty-seventh day of July, 1933." The insertion of this retrospective date is the foundation of the charge laid in the information. It is evident that the clause in the award and the form of indenture in the covenant contemplate a full period of five years throughout which the apprentice will be bound and a period of five years commencing at a date already past is not in truth such a period of five years at all. The instrument operates to bind the parties only during the residue of the period. Accordingly the information alleges a breach of the term of the award which provides that apprentices shall be apprenticed in accordance with schedule D (Deed of Apprenticeship). The answer given by the respondent is, in effect, that this clause does not mean that no apprenticeship indenture shall be entered into except in accordance with the schedule. It means, the respondent says, no more than that unless the indenture of apprenticeship complies with the schedule and has a term of five years it will fail to bring an apprentice within the operation of the clause so that he may be considered for its purposes an apprenticed boy and not an unapprenticed boy within the next ensuing provision. It might follow that the boy in question should be regarded as an unapprenticed boy so that, if he was employed, as was alleged, at work other than that which the clause allows unapprenticed boys to do, the respondent committed an offence, but, if so, that is not the offence with which it is charged.

In our opinion this contention is not well founded. We read the award as dealing exhaustively with the employment of apprentices and of unapprenticed boys. Except in conformity with the clause relating to the latter, an unapprenticed boy may not be employed. But, if the boy is to be apprenticed, the provisions relating to apprenticeship must be strictly pursued. To take an apprentice on terms outside these provisions is forbidden.

When the sub-clauses say:—"Apprentices shall be apprenticed in accordance with schedule D" and "Apprentices shall be apprenticed for a period of five years" they mean what they say. They are affirmative commands necessarily implying the negative prohibition against entering into indentures on any other terms. They do much more than define the terms compliance with which will turn a boy into an apprentice for the purpose of the distinction between apprenticed and unapprenticed boys.

Accordingly, in our opinion, the clause upon which the information is based does impose a duty and, inasmuch as it was contravened, a breach of the award was committed.

The appeal should be allowed. The order of dismissal should be set aside and the information remitted to the magistrate.

Appeal allowed. Determination of stipendiary magistrate set aside. Remit matter to magistrate with the opinion of this Court that his determination was erroneous. The respondent to pay to the appellant the costs of this appeal.

[1] Ante, p. 387.

[2] [1935] HCA 11; (1935) 53 C.L.R. 143.

[3] Ante, p. 387.

High Court of Australia

Culbert v Clyde Engineering Co Ltd [1936] HCA 19; (1936) 54 CLR 544 (30 April 1936)

HIGH COURT OF AUSTRALIA