Clarke v Kerr [1955] HCA 55; (1955) 94 CLR 489 (21 October 1955)

HIGH COURT OF AUSTRALIA

CLARKE v. KERR [1955] HCA 55; (1955) 94 CLR 489

Constitutional Law

High Court of Australia
Dixon C.J.(1), McTiernan(2), Williams(2), Webb(3), Fullagar(2), Kitto(4) and Taylor(2) JJ.

CATCHWORDS

Constitutional Law - Industrial arbitration - Conflict between State statute and Federal award - Motor spirit, oil and accessories - Sale thereof Hours fixed by statute - Employees' hours for work - Provision in Federal award - Consistency - State statute - Validity - The Constitution (63 & 64 Vict. c. 12), s. 109 - Conciliation and Arbitration Act 1904-1952 - Judiciary Act 1903-1950, s. 40 - Factories and Shops Act 1912-1954 (N.S.W.), ss. 105A, 107.

HEARING

Sydney, 1955, August 8, 9; October 21. 21:10:1955
REMOVAL under s. 40 of the Judiciary Act 1903-1950.

DECISION

November 21.
The following written judgments were delivered:-
DIXON C.J. I have had the advantage of reading the judgment of McTiernan,

2. I wish to add for myself that, in the absence of an award made under the Industrial Arbitration Act 1940 (N.S.W.), as amended, which, if valid, would operate under sub-s. (2) of s. 105A of the Factories and Shops Act 1912-1954 (N.S.W.) to fix the opening and closing times of shops for the sale of motor spirit, motor oil or motor accessories, I fail to see what foothold exists for the argument advanced on behalf of the defendant. A valid award under the State Industrial Arbitration Act obtains an operation under sub-s. (2) of s. 105A of the Factories and Shops Act in virtue of the fact that it fixes the commencing and cessation of the ordinary hours of work by employees in shops for the sale of motor spirit etc. If there were such an award and by a federal award, such as the Metal Trades Award, made under the Conciliation and Arbitration Act 1904-1952 (Cth.), the hours of work of such employees or some of them were regulated, it is easy to understand that to that extent the supposed State award might be inoperative and "invalid" under s. 109 of the Constitution. That might well be the result of the application of the doctrine explained in Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 . But of course the conclusion would be formed after an examination and comparison of the two awards. As it seems to me, it would only be when the conclusion had been formed that the argument upon which the defendant relies could begin. For it is only then that he would be able to say that by federal law sub-s. (2) of s. 105A had been deprived of some of its operation and that sub-s. (1) must by consequence fail in its apparent operation. It is only by such an argument that, to my mind, any place could be made for the application of s. 109 of the Constitution. I say this because the fixing of the hours of the opening and closing of shops is outside the province of federal industrial awards. That has been held in R. v. Kelly; Ex parte State of Victoria (1950) 81 CLR 64 and the distinction which the decision recognizes between hours of trading and hours of labour as subject matters of regulation has been carried into the interpretation of State enactments: see Brownells Ltd. v. Ironmongers' Wages Board [1950] HCA 3; (1950) 81 CLR 108 . (at p496)

3. There could therefore be no direct inconsistency with sub-s. (1) resulting under s. 109 from an award under the Conciliation and Arbitration Act of the Commonwealth. (at p496)

4. The defendant's argument must therefore necessarily depend upon establishing a conflict by such an award with sub-s. (2). If that could be established, it would then be necessary that the consequent failure, to whatever extent it went, in the operation of sub-s. (2) should spell the failure either to a corresponding extent or perhaps altogether of sub-s. (1) of s. 105A. But even if the argument possessed a foundation which would support it up to this point, it would, in my opinion, fail at this point. For I do not think that the invalidity, partial or total, of sub-s. (2) would bring down sub-s. (1). It lays down a general rule which is to apply if sub-s. (2) is not set in operation. If federal law were to make it impossible to set sub-s. (2) in operation, it would be in accordance with the prima facie intention of the State legislature that sub-s. (1) should continue to apply. On ordinary principles, without the assistance of a severability clause, sub-s. (1) would survive the invalidity of sub-s. (2) of s. 105A. (at p496)

5. It should be declared that the defendant was upon the date of the offence alleged bound to observe s. 105A of the Factories and Shops Act 1912-1954 with respect to the shop for the sale of motor spirit, motor oil and accessories known as Sydney Service Station. With that declaration the cause should be remitted to the Chief Industrial Magistrate's court. (at p496)

McTIERNAN, WILLIAMS, FULLAGAR AND TAYLOR JJ. This matter comes before us in the course of the prosecution of the defendant, Victor Kerr, in the court of the Chief Industrial Magistrate for an alleged offence under s. 105A sub-s. (3) of the Factories and Shops Act 1912-1954 (N.S.W.). This sub-section, so far as material, provides that if any shop for the sale of motor spirit, motor oil or motor accessories is opened on any day before the opening time fixed by or under this Act for such day in respect of such shop or is not closed and kept closed for the remainder of such day at and after the closing time fixed by or under this Act for such day in respect of such shop, or if in any such shop any motor spirit, motor oil or motor accessories is offered for sale after the said closing time, the shopkeeper and any person acting or apparently acting in the management of the shop shall be guilty of an offence under this Part of this Act. The day on which the offence was alleged to have taken place was Monday, 10th January 1955, and on that day s. 105A (1) (b) of the Factories and Shops Act required that the shop should be closed at 8.30 p.m. Before the magistrate evidence was given for the informant, an inspector appointed under that Act, that the shop which is known as the Sydney Service Station and which is situated at 9 Flinders Street, Darlinghurst, was still open for the sale of motor spirits at 10 p.m. One of the defences raised and argued before the magistrate, who has now reserved his decision, was that s. 105A of the Factories and Shops Act is invalid under s. 109 of the Constitution because its provisions are inconsistent with the Metal Trades Award made by a conciliation commissioner under the provisions of the Commonwealth Conciliation and Arbitration Act 1904-1952 (Cth.) on 16th January 1952. On 18th April 1955 this Court, on the application of the Attorney-General for the State of New South Wales, made an order pursuant to s. 40 of the Judiciary Act 1903-1950 that part of the cause be removed into this Court, the part so removed being the question whether by reason of the provisions of that award the defendant was not on 10th January 1955 bound to observe s. 105A of the Factories and Shops Act 1912-1954 (N.S.W.) with respect to the shop for the sale of motor spirit, motor oil and motor accessories known as Sydney Service Station, and situated at 9 Flinders Street, Darlinghurst. (at p497)

2. The owner of the service station is Mr. T. Leek. The premises are registered as an engineering factory. The defendant, Kerr, is one of his employees. The business which is all carried on under the one roof and is open day and night is an extensive one and includes the repairing and reconditioning of motor vehicles, welding, and the manufacture and repair of component parts of motor engines. It also includes the lubrication of motor vehicles, retailing petrol from eleven pumps, and selling motor oil and accessories. Mr. Leek gave evidence that, except for the office staff consisting of an accountant and two girls, the whole of the staff, which includes engineers and mechanics, eight employees engaged in the selling of petrol and oils and three men in the selling of accessories, works under the Metal Trades Award. The evidence is that the engineers and mechanics assist from time to time in the selling of petrol and oils. The Metal Trades Award is a very comprehensive document. It was faintly contended by Mr. Wallace that in respect of the employees engaged in the selling of motor spirits and oil the owner of the business is not bound by this award. If he is not, the question of inconsistency between the award and the Factories and Shops Act would not arise and the order removing this part of the cause into this Court should not have been made. As the informant is a State official and this part of the cause was removed into this Court on the application of the Attorney-General for the State of New South Wales it is a strange objection for Mr. Wallace to take. But it can be disregarded. Without going through the award in detail it is sufficient to say that it covers, with certain exceptions, the engineering, metal working and fabricating industries in all their branches and all industries allied thereto and that its incidence is wide enough to include employees so engaged. In the absence of any cross-examination of Mr. Leek on the subject or any evidence to the contrary his evidence should be accepted and the contention rejected. (at p498)

3. The State law relating to the opening and closing times of shops for the sale of motor spirits, motor oil and motor accessories is contained in s. 105A of the Factories and Shops Act 1912 as amended, the latest amending Act being No. 42 of 1954 which came into force on 8th December 1954. Provisions specifically relating to the opening and closing times for such shops were first introduced into the principal Act by the Factories and Shops (Amendment) Act No. 34 of 1941 which came into force on 9th September of that year. This Act introduced s. 105A into the principal Act. Sub-section (1) of this section provided for the opening and closing times for such shops on Mondays to Saturdays inclusive and on Sundays and public holidays and for their being kept closed on the days observed as Christmas Day, Good Friday and Anzac Day. Sub-section (2) provided that where after the commencement of the Factories and Shops (Amendment) Act 1941, an award was made under the Industrial Arbitration Act 1940, as amended by subsequent Acts, fixing the commencing and cessation of the ordinary hours of work by employees in shops for the sale of motor spirit, motor oil or motor accessories in any shopping district or area or part thereof, the opening and closing times for such shops in any such shopping district or area or part thereof should be the times so fixed respectively for the commencing and cessation of the ordinary hours of work by such employees under such award : provided that nothing in this section should operate so as to permit any shop for the sale of motor spirit, motor oil or motor accessories to be opened earlier than or closed later than the times prescribed by sub-s. (1) of this section as the opening and closing times respectively for such shop. The Factories and Shops (Amendment) Act 1954, No. 42 of 1954, which came into force on 8th December of that year amended s. 105A by omitting therefrom sub-ss. (1) and (2) and by inserting in lieu thereof two new sub-sections. By sub-s. (1) the opening and closing times for shops for the sale of motor spirit, motor oil or motor accessories, whether or not employees are employed therein, were altered so as to allow the shops to remain open for longer hours, the hours on Saturdays, Sundays and public holidays being between 7 o'clock in the forenoon and 6 o'clock in the afternoon and on all other days between 6 o'clock in the forenoon and half-past 8 o'clock in the afternoon provided that (as before) on the days observed as Christmas Day, Good Friday and Anzac Day such shops should be kept closed. The new sub-s. (2), like its predecessor, provides machinery for the alteration of these times for the opening and closing of such shops where an award is made under the Industrial Arbitration Act 1940, as amended by subsequent Acts, and is identical in language with the sub-section it replaces except that it provides that the times shall be altered in such shopping district or area or part thereof whether or not employees are employed in such shops. The Act of 1954 also provides that there shall be inserted at the end of s. 105A a new sub-s. (7) providing that the provisions of any law, other than this Act and any award referred to in sub-s. (2) of this section, to the extent to which it prohibits the sale of motor spirit, motor oil or motor accessories between the opening and closing times fixed by or under this Act for shops for the sale of motor spirit, motor oil or motor accessories, shall, as from the commencement of the Factories and Shops (Amendment) Act 1954, cease to be of any force or effect. (at p499)

4. The evident purpose of the new sub-s. (7) was to substitute the new opening and closing times for such shops introduced by the new sub-s. (1) for any times that might have been fixed for shopping districts or areas or parts of areas by awards made under the Industrial Arbitration Act between 9th September 1941 and 8th December 1954 and to place the whole State as from that date, at least initially, on a uniform basis. The effect of s. 105A is therefore by the first sub-section to provide statutory times for the opening and closing of such shops on all the days of the year and to make it unlawful for such shops to remain open for the sale of such goods except between such times. But these times are not finally fixed by the Act except to the extent that they cannot be enlarged. They can be altered, internally so to speak, in any shopping district or area or part thereof where an award is made under the Industrial Arbitration Act fixing the commencing and cessation of the ordinary hours of work by employees in such shops for particular shopping districts or areas or parts thereof. The times at which such shops in such districts or areas or parts thereof can then lawfully be kept open for the sale of motor spirits, motor oil or motor accessories then become changed to the times provided for in the award whether or not employees are employed in such shops. It was contended by Mr. Macfarlan that when sub-ss. (1) and (2) of s. 105A are read together they form a single inseverable scheme the central purpose of which is to empower the tribunals set up under the Industrial Arbitration Act to fix the ordinary hours of work for employees in shops in New South Wales engaged in the sale of motor spirits, motor oils or motor accessories. Accordingly the provisions of sub-s. (1) are of a transitional character and entirely ancillary to the provisions of sub-s. (2). Sub-section (1) in terms fixes the times for the opening and closing of such shops but these times are fixed so that, pending the making of awards under sub-s. (2), they will be the ordinary times for the commencing and cessation of work by employees in such shops. Both in sub-ss. (1) and (2) the times in question are the same whether or not employees are employed in the shops which on its face would appear to indicate that the legislation is principally directed to fixing the times at which such shops may open and must close. But, if this contention is right, this provision, contrary to its apparent intent, must be directed to protect shops which employ labour from being put at a disadvantage in comparison with shops which do not. The provision in sub-s. (2) that nothing in the section shall operate so as to permit any such shop to be opened earlier than or closed later than the times prescribed by sub-s. (1) as the opening and closing times respectively for such shop must also be intended to be a restriction imposed by parliament upon the power of the industrial tribunal to fix times for the commencing or cessation of the ordinary hours of work earlier or later than the times prescribed by sub-s. (1), although, since it applies to shops which do not employ labour, the legislation on its face would appear to be directed to preventing the tribunal enlarging the period during which shops may remain open. (at p500)

5. Mr. Macfarlan then referred to the provisions of the Metal Trades Award and in particular to the provisions relating to hours of work for day-workers, to the provisions relating to shift-work and to the provisions relating to compulsory overtime. With respect to day-work the award, cl. 11, provides that, subject to certain exceptions, the ordinary hours of work shall be forty per week to be worked in five days of not more than eight hours (Monday to Friday inclusive), and one day (Saturday) of not more than four hours; or five days (Monday to Friday inclusive) of eight hours each continuously except for meal-breaks at the discretion of the employer, between 7 a.m. and 5.30 p.m. on Monday to Friday inclusive, and 7 a.m. and noon on Saturday. With respect to shift-work the award, cl. 12, defines "afternoon shift" to mean any shift finishing after 6 p.m. and at or before midnight : "continuous work" to mean work carried on with consecutive shifts of men throughout the twenty-four hours of each of at least six consecutive days without interruption except during breakdowns or meal-breaks or due to unavoidable causes beyond the control of the employer : and "night-shift" to mean any shift finishing subsequent to midnight and at or before 8 a.m. With respect to compulsory overtime, cl. 12 provides that an employer may require any employee to work reasonable overtime at overtime rates and such employee shall work overtime in accordance with such requirement. Mr. Macfarlan contended that the effect of these provisions is to authorize an employer to work afternoon shifts finishing not later than midnight, to work night shifts finishing subsequently to midnight and to work continuous shifts throughout the twenty-four hours of each day of at least six consecutive days. Accordingly, the award has fixed the hours at which employers are permitted to work their employees subject to variation or rescission in accordance with the provisions of the Commonwealth Conciliation and Arbitration Act and, these hours being so fixed, any State legislation, in this case sub-s. (2) of s. 105A of the Factories and Shops Act, which purports to give any State authority jurisdiction to make or alter the hours fixed by the Federal award is inconsistent therewith and invalid under s. 109 of the Constitution. (at p501)

6. He then sought to take the further step and contend that, if sub-s. (2) is invalid, sub-s. (1) is so inseverably bound up with it that it must be equally invalid. In this connection it must be borne in mind that the law of New South Wales does not include any general reading-down section corresponding to s. 15A of the Acts Interpretation Act 1901-1950 (Cth.) and that the Factories and Shops Act does not include any special section to this effect. In support of these contentions Mr. Macfarlan relied strongly on the judgment of Isaacs J. in Cowburn's Case [1926] HCA 6; (1926) 37 CLR 466 . His Honour said : "I may summarize my constitutional conclusions as follows : (1) The settlement of an inter-State industrial dispute on such terms as the Federal arbitrator thinks just cannot be prevented or impeded by any State law ; (2) an award once validly made prevails over any inconsistent State law ; (3) a State law is inconsistent, and is therefore invalid, so far as its effect, if enforced, would be to destroy or vary the adjustment of industrial relations established by the award with respect to the matters formerly in dispute" (1926) 37 CLR, at p 499 . The award in that case was, as he pointed out, an earlier edition of the present award. But the conflict discussed in that case was between the provisions of an award which prescribed a minimum weekly wage for a working week of forty-eight hours and for a deduction from this amount if an employee worked less than these hours (in that case four hours) and the Forty-four Hours Week Act 1925 (N.S.W.) which in effect provided that the whole of this wage should be paid if the employee worked forty-four hours. Accordingly the award provided that the employee should receive a certain sum if he worked for forty-four hours and the State Act provided that he should receive a larger sum if he worked for that period and there was a direct conflict and, as Isaacs J. said, a manifest and inescapable inconsistency between the two provisions. It is impossible to predicate any such direct conflict in the present case. In the first place no award has yet been made under the Industrial Arbitration Act and, so far as State law is concerned, the provisions of the first sub-section of s. 105A occupy the field. If such an award should be made in the future the question may then arise whether its provisions or any of them are inconsistent with the provisions of the Metal Trades Award. It is not possible to construe sub-ss. (1) and (2) of s. 105A in the manner for which Mr. Macfarlan contends without doing violence to their language. This language does not justify a conclusion that they are in essence provisions intended to authorize State tribunals to make awards precribing the ordinary times for the commencement and cessation of work by employees in shops in New South Wales for the sale of motor spirits, motor oils or motor accessories. The power to make such awards is not even a power to make an award for New South Wales as a whole but only to make awards for parts of New South Wales although, if a sufficient number of awards were made, they could in combination cover the whole of the State. The language of the sub-sections seems to indicate an intention on the part of the legislature that if the shops were allowed to be open during the prescribed periods the reasonable needs of the public to obtain such goods would be met. The proviso to sub-s. (2) that an award cannot enlarge this period although it may restrict it in particular shopping districts, areas or parts of areas supports this conclusion. But it is all guesswork. There is nothing in the language of sub-ss. (1) and (2) to suggest that they are intended to form one inseverable scheme so that the invalidity of any part would destroy the validity of the whole. It is not possible to construe the first sub-section of s. 105A, even if it can be said to be a transitional provision, as incidental to and inseverably bound up with the second sub-section and, therefore, if the latter be invalid under s. 109 of the Constitution, also invalid. An attempt was made to forge a link between what was said by Dixon J. (as he then was) in Wenn v. Attorney-General (Vict.) (1948) 77 CLR 84, at pp 121, 122 in relation to very different circumstances and the present circumstances. He said: ". . . while s. 109 invalidates State legislation only so far as it is inconsistent, the question whether one provision of a State Act can have any operation apart from some other provision contained in the Act must depend upon the intention of the State legislation, ascertained by interpreting the statute. The same thing is put in another way by saying that every part of a completely interdependent and inseparable legislative provision must fall within 'the extent of the inconsistency'. No doubt s. 109 means a separation to be made of the inconsistent parts from the consistent parts of a State law. But it does not intend the separation to be made where division is only possible at the cost of producing provisions which the State Parliament never intended to enact. The burden of establishing interdependence in such a case is necessarily upon those who assert it in view of the words of s. 109, and perhaps it is not a light one" (1948) 77 CLR, at p 122 . (at p503)

7. But there is nothing in the language of s. 105A to indicate that the Parliament of New South Wales would not have enacted the first sub-section if it had known that the second sub-section could be invalid. The indications are all the other way because, to give the first sub-section a clear run in the first instance, a new sub-s. (7) was added by the Act of 1954 depriving of any force or effect any existing State law relating to the opening or closing times of shops for the sale of motor spirit, motor oil or motor accessories which might otherwise compete with it. Further, the second sub-section could not of itself produce any direct inconsistency with the Metal Trades Award because of itself it has no immediate operation. It merely gives an overriding effect in a limited area to an award made under the Industrial Arbitration Act. Until an award is made a similar but converse position would exist under s. 109 of the Constitution to that which existed in Carter v. Egg and Egg Pulp Marketing Board (Vict.) (1942) 66 CLR 557 whilst the powers conferred by the Egg Control Regulations made under the National Security Act 1939-1940 remained unexercised. If any such intention as that contended for could be attributed to the Parliament of New South Wales it would have to be the strange intention that, if by any possibility an award which might possibly be made under the Industrial Arbitration Act for a shopping district or area or part of an area could be invalid because it was inconsistent under s. 109 of the Constitution with a Federal award made under the Conciliation and Arbitration Act, not only the award but the whole of the two sub-sections should collapse. But a State award, even if valid, would only supersede sub-s. (1) for a particular shopping district, area or part of an area leaving the sub-section still operative throughout the rest of the State and an invalid award would have no effect upon the sub-section and would leave it completely operative throughout the State. (at p504)

8. There is nothing which would justify the Court in not attributing to the first sub-section of s. 105A a completely independent operation irrespective of any constitutional difficulties that an award made under the second sub-section might encounter. The truth is that the defendant can only hope to call in aid s. 109 of the Constitution if it is possible to hold that the first sub-section of s. 105A is inconsistent with the Metal Trades Award because "its effect, if enforced, would be to destroy or vary the adjustment of industrial relations established by the award with respect to the matters formerly in dispute": (per Isaacs J. in the passage already cited (1926) 37 CLR, at p 499 ). "When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid": (per Dixon J. in Victoria v. The Commonwealth (1937) 58 CLR 618, at p 630 ). But sub-s. (1) of s. 105A does none of these things. The Metal Trades Award is not itself a law of the Commonwealth. It is the Conciliation and Arbitration Act which gives the force of law to its provisions and even then the operation of a State law can only be excluded by s. 109 of the Constitution in its application to the particular individuals governed by the award. The employer of the defendant is one of these individuals and the defendant is entitled to rely on the whole of the immunity from State law that his employer derives from the paramountcy of the award under s. 109 of the Constitution. The provisions of the award relating to the ordinary hours of work and to shift-work - afternoon, night and continuous shift-work - are provisions made in the settlement of industrial disputes between the parties to the award on these matters. But to produce an inconsistency between these provisions and the State law contained in sub-s. (1) of s. 105A of the Factories and Shops Act it would be necessary to construe the award as intending to confer upon the employer the right to work his employees during these hours notwithstanding any State law restricting the periods during which shops could be open. There is the decision of this Court in R. v. Kelly; Ex parte State of Victoria [1950] HCA 7; (1950) 81 CLR 64 that the trading hours of an employer are not the same subject as the working hours of an employee and that a dispute on the former subject is not an industrial dispute as defined in s. 4 of the Conciliation and Arbitration Act. It is pointed out that matters indirectly affecting work in an industry are not matters as to which there can be industrial disputes and that "In the case of Commonwealth legislation with respect to the same subject matter any such extension would seem inevitably to involve an excess of the power conferred by s. 51 (xxxv.) of the Constitution" (1950) 81 CLR, at p 85 . There can be a collision under s. 109 of the Constitution between a Commonwealth law on one subject and a State law on another but such a collision is less likely to occur than it is where the two laws are dealing with the same subject matter. An award under the Conciliation and Arbitration Act operates to settle disputes between the parties as to the terms and conditions upon which the employer shall employ the employee. It is not addressed to the question whether it is lawful for the employer to carry on his business continuously each day and night or in certain periods of the day or night. It does not purport to confer on the employer the right to open his shop and sell his goods in periods during which it is required by State law to remain closed. If it did purport to do so, it would exceed constitutional power, and it is only between a valid Commonwealth law and a State law that there can be any inconsistency. The award is only concerned with the question of the terms and conditions upon which the employer can work his employee when it is lawful for him to do so. Accordingly the provisions of sub-s. (1) of s. 105A of the Factories and Shops Act do not alter, impair or detract from the operation of the award. There is no enumerated power specifically conferred upon the Commonwealth by s. 51 of the Constitution to fix the periods when shops shall be opened and closed, so that it is a subject with respect to which the power to legislate is reserved to the States by ss. 106 and 107 of the Constitution. (at p506)

9. For these reasons the question asked in the order of 18th April 1955 should be answered by saying that the provisions of the Metal Trades Award did not absolve the defendant on 10th January 1955 from observing s. 105A of the Factories and Shops Act 1912-1954, with respect to the shop for the sale of motor spirit, motor oil or motor accessories known as Sydney Service Station and situated at 9 Flinders Street, Darlinghurst. (at p506)

WEBB J. The question here is whether s. 105A (1) of the New South Wales Factories and Shops Act 1912-1954 is invalid or inoperative as being inconsistent with the Metal Trades Award made by a conciliation commissioner under the Conciliation and Arbitration Act 1904-1952. This question, as part of a cause, was removed to this Court under s. 40 of the Judiciary Act 1903-1950 on the application of the Attorney-General of New South Wales. The cause arises out of an information for a breach of s. 105A (1) (b) alleged to have been committed on 10th January 1955, at Darlinghurst, Sydney. (at p506)

2. Section 105A provides, inter alia:

"105A. (1) The opening and closing times for shops for the sale of motor spirit, motor oil or motor accessories shall, whether or not employees are employed therein - (a) on Saturdays, Sundays and public holidays, be seven o'clock in the forenoon and six o'clock in the afternoon respectively . . . (b) on all other days, be six o'clock in the forenoon and half past eight o'clock in the afternoon respectively . . . (2) Where . . . an award is made under the Industrial Arbitration Act, 1940, . . . fixing the commencing and cessation of the ordinary hours of work by employees in shops for the sale of motor spirit, motor oil or motor accessories . . . the opening and closing times for such shops . . . whether or not employees are employed therein, shall be the times so fixed respectively for the commencing and cessation of the ordinary hours of work by such employees under such award: Provided that nothing in this section contained shall operate so as to permit any shop for the sale of motor spirit, motor oil or motor accessories to be opened earlier than or closed later than the times prescribed by subsection one of this section as the opening and closing times respectively for such shop. . . . (7) The provisions of any law, other than this Act and any award referred to in subsection two of this section, to the extent to which it prohibits the sale of motor spirit, motor oil or motor accessories between the opening and closing times fixed by or under this Act for shops for the sale of motor spirit, motor oil or motor accessories, shall, . . . cease to be of any force or effect". (at p507)

3. At the "shop" in question petrol was on Monday, 10th January 1955, sold after 8.30 p.m. by employees who are treated as having been covered by the Metal Trades Award, but who if all the facts were known might not have been covered by it. However, for the purpose of these proceedings, I assume the award applied to them. (at p507)

4. Whether a State law is inconsistent with a federal law and so invalid under s. 109 of the Commonwealth Constitution depends on the nature of the respective laws. Federal industrial awards are limited to the settlement of inter-State industrial disputes, i.e., disputes between employers and employees about industrial matters as defined by the Conciliation and Arbitration Act, and the definition must in turn comply with the Commonwealth Constitution which refers only to industrial disputes in the strict sense. Before a valid award can be made, the conciliation commissioner must have before him an inter-State dispute as so defined. A dispute between employers and employees as to what the trading hours should be, as distinct from the working hours of employees is not such a dispute: see R. v. Kelly; Ex parte Victoria [1950] HCA 7; (1950) 81 CLR 64 and Brownells Ltd. v. Ironmongers' Wages Board (1950) 81 CLR 108 . So that no federal industrial award can extend to trading hours fixed by a State law and bring about an inconsistency between a State and Commonwealth law under s. 109, rendering the State law invalid. Now s. 105A fixes trading hours as distinct from working hours of employees, although it does not use the term "trading hours" but speaks of "opening and closing times", and goes so far as to make those times coincide with ordinary working hours fixed by a State industrial award, except that the trading hours of "shops" for the sale of petrol cannot be extended by a State award. Then s. 105A maintains the distinction between trading hours and working hours of employees, and so a federal award has no effect on trading hours under s. 105A (1) and never can have any. Even if s. 105A had made the trading hours coincide without any exception, those hours would still not be identical with the ordinary working hours of employees. They are quite distinct things. They are fixed by different legislation and for different purposes. It is the State award that the federal award would invalidate if the working hours had been fixed by a State award (Clyde Engineering Co. Ltd. v. Cowburn [1926] HCA 6; (1926) 37 CLR 466 ). We were told that no such State award has been made. So in any event sub-s. (2) of s. 105A has not yet operated to bring about a change in the trading hours fixed by sub-s. (1), and it is for failure to observe the trading hours fixed by sub-s. (1) that the information has been laid. (at p508)

5. I would hold that s. 105A (1) is valid. (at p508)

KITTO J. It is clear that there is nothing in the point taken by the defendant and brought here for decision. As a mere matter of construction, the overtime provisions of the award are plainly not directed to the lawfulness of the things which an employer may direct his employee to do in the course of working overtime. They relate only to the right of the employer to have his employee on the job outside ordinary working hours, and the correlative obligation of the employee. Presumably no one would support the broad proposition that because of those provisions an employer who wants something done which would be within the scope of the employment if it were lawful but is unlawful in the sense that the general law of the land forbids it to employees and non-employees alike, need only require his employee to do it by way of overtime and it will become by virtue of his command a lawful thing for the employee to do. Yet the defendant's contention really comes to that in the end. It should be denied and the case sent back to the magistrate. (at p508)

ORDER

As to the part of this cause removed pursuant to s. 40 of the Judiciary Act 1903-1950 by the order of this Court dated 18th April 1955 being the question set out in such order, declare that the provisions of the Federal Metal Trades Award therein mentioned did not absolve the defendant on 10th January 1955 from observing s. 105A of the Factories and Shops Act 1912-1954 of New South Wales with respect to the shop for the sale of motor spirit, motor oil and motor accessories known as Sydney Service Station and situated at No. 9 Flinders Street, Darlinghurst. Remit the information to the Chief Industrial Magistrate to be dealt with consistently with the foregoing declaration and according to law. Order that the defendant do pay the costs of the proceedings in this Court.