Brownells Ltd v Ironmongers' Wages Board

Brownells Ltd v Ironmongers' Wages Board - [1950] HCA 3 - HCA 1950 case summary — Zoe

[26]

By the Shops Act, 1925-1945 Tas. s. 8, it is provided that shops (with some exceptions) shall close at 6 o'clock. The effect of the provision of the determination relating to overtime is that if a shop remains open on any day after 5.45 p.m. 1s. 6d. an hour or 10s., whichever of those sums give the highest amount, must be paid to employees engaged in work to which the determination applies. This clause is not in the ordinary form of provisions for extra payment for overtime work. Ordinarily separate periods of overtime are added together for the period, e.g. a week, in respect of which wages are paid and payment is made for the total overtime involved at the special overtime rate - which in this case is time and a half. The clause in this determination, however, provides for a minimum payment (1s. 6d. per half hour or 10s., whichever is the greater amount) upon each occasion to which the clause applies. The employees of the appellant Brownells Limited include four saleswomen to whom the determination is applicable. In respect of the quarter of an hour after 5.45 p.m. on each day when the shop is allowed to be open under the Shops Act, 1925-1945, these employees must be paid at least 10s., i.e. an additional sum for each employee of £2 10s. per week. It is contended that this provision fixes an hour for the closing of shops which is in conflict with the provision of the Shops Act, 1925-1945. It is apparent that the object of the Board was to bring about the result that the shops should close at 5.45 p.m. A provision requiring the shops so to close would in my opinion have been beyond the powers of the Board for two reasons. In the first place the statute does not in any express terms give such a power to the Board and the general provision in s. 23 XIV. of the Act authorizing the Board to determine matters pertaining to or affecting the relations of employers and employees does not enable a board to make a determination in relation to hours of trading by employers as distinct from hours of working by employees. In the second place such a provision would conflict with the Shops Act, 1925-1945, where the Parliament has made a specific provision dealing with this subject.

[28]

But if a power is conferred by statute upon a body in such terms that it appears that the power was conferred for a particular purpose, the power must be exercised only for that purpose, and if it was shown that the power was exercised for a purpose which was "beyond the scope of or not justified by the instrument creating the power" (Vatcher v. Paull [1] ), then such an exercise of the power will not be valid. No inquiry may be made into the motives of the Legislature in enacting a law, but where a statute confers powers upon an officer or a statutory body and either by express provision or by reason of the general character of the statute it appears that the powers were intended to be exercised only for a particular purpose, then the exercise of the powers not for such purpose but for some ulterior object will be invalid. This question was fully examined in Arthur Yates & Co. Pty Ltd. v. Vegetable Seeds Committee [2] , and it was there held that subordinate bodies exercising powers conferred by statutes were bound to exercise their powers bona fide for the purposes for which the power was conferred and not otherwise [3] . In the present case it is clear that the Wages Boards Act, 1920-1946 confers powers upon Wages Boards for the purpose of determining matters connected with the relations of employers and employees. For reasons already stated the Wages Board has no power to determine the hours of opening and closing of shops, a matter which the Legislature has taken directly into its own hands. In the present case it cannot be disputed that the Board has sought to use its powers to determine overtime rates for the purpose of bringing about the closing of shops at an hour other than that required by the Legislature in the Shops Act, 1925-1945. The payment of 10s. has no relation to work actually done or possibly to be done, and it cannot be regarded as a genuine provision for overtime payment for work. Questions of degree might make it difficult in some cases to determine whether a board was exercising its powers bona fide for the purpose for which the powers were conferred but in the present case there can be no doubt that the Board is, under the guise or pretence of fixing rates for overtime, seeking to impose what are in substance penalties upon employers for keeping shops open at a time when the Legislature had said that it shall be lawful to keep shops open. Accordingly, in my opinion, the power possessed by the Board has been illegitimately exercised and the provision of which the appellant complains should be held to be invalid.

[36]

It is necessary to consider these two objections separately. One proclamation sets up both Boards. It is a proclamation establishing a large number of Wages Boards at one time. They are identified by the trades for which they are respectively set up and these are enumerated in a long list under the operative words of the proclamation. The operative words state that the Governor in Council does by the proclamation "establish Wages Boards in respect of the following trades or groups of trades." As amended the subject of the Ironmongers' Wages Board is given as "Sellers of (a) Ironmongery and/or Ship Chandlery, (b) Crockery and/or Glassware, (c) Jewellery, Silverware, and/or Electroplate Goods, (d) Fancy Goods and/or Toys, (e) Books, Stationery, Music, and/or Musical Instruments, (f) Sporting Goods, (g) Rubber Goods and/or Leather, (h) Paints, Oils, Varnishes and/or Wallpapers, (i) Coachbuilders' Hardware, (j) Motor Accessories." The application of the definition is limited to sellers of such goods within a 7-mile radius of the General Post-office at Hobart or of the Post-office at Launceston. Common experience and a mere inspection of this list of goods will suffice to make it clear that a single business would be very exceptional indeed if it covered the selling of all the items. Doubtless it is a list of classes of articles which are sold as a matter of practice in a number of distinct businesses. An examination of the list did, however, suggest that the separate items it contains, though no trader sells them all in the same business, are yet the subject of a variety of combinations, one or more with another or others, to form the stock in trade of different shops or businesses the character of which varies indefinitely. The contention of the appellant company is that in adopting such a description of the trade for which the Ironmongers' Wages Board is set up the proclamation deserts any classification of trades which could correspond with practical affairs. It is therefore not a wages board in respect of a trade. Clearly enough this would be so if the word "trade" bore its ordinary meaning when used in relation to an employer's business and if it had not been defined to include a group of trades. But the definition not only includes a group of trades; it does so after extending the natural meaning of the word "trade" so as to cover not only any industry, business or work carried on or engaged in by an employer but also any function, process, undertaking, occupation or calling performed, carried on or engaged in by an employer. It is apparent that upon any literal application of this definition it must cover a very wide field of operations carried on by employers and include many possible combinations and subdivisions of activities within that field.

[40]

The first consideration relied upon is that the trade is defined by reference to what an employer does and not the work done by the man he employs. That of course is so. But it is said to point to the conclusion that the criterion, not only of what is a function, process &c., but of what is a group, must be determined by forms of business in fact found to be carried on by traders. Perhaps the use in the definition of "wages board" (s. 6) of the expression "wages board established in respect of the particular trade" may be laid hold of as an additional indication. Secondly, it is contended that the word "group" is not a synonym for "number" but connotes common characteristics of some kind in the units forming the group. That is to say there must be some kind of common relation: some similarity or other connection: some attribute giving them a unity as a class. Thirdly, it is said that other provisions of the Wages Boards Act, 1920-1946, notably that dealing with the qualifications of the members (s. 13) make it necessary to limit a group of trades to a group forming some existing business or businesses actually carried on as single ventures. Fourthly, it may be said that the purpose of the provisions is to have one determination for a known trade described in broad terms and one that would apply to every business within the description and alone apply to it. It was urged that it was wrong to attempt to define selling businesses by reference to the classes of goods forming the stock-in-trade; what the statute intended was that general classes of business should be named by the common descriptions current, as butchers, bakers, drapers and so on. No doubt these considerations must be weighed together cumulatively. But it is possible to discuss them only one by one. As to the first, it is enough to say that it appears to me to involve a quite unwarranted step. It is of course true that the common understanding of what is a trade carried on by an employer arises from the practice pursued in trade or business; and that is true even when trade is specially defined to mean function, process, industry, business, work, undertaking, occupation, profession or calling performed, carried on or engaged in by an employer. But it is an unwarranted step to infer from this that when the definition goes on to include a group of trades it means that it must be a group formed by some actual employer for the purpose of his business. The words "by an employer" do not mean by a specific employer. It means by employers considered as a class as distinguished from employees or workmen following a craft or pursuit. But even if it were otherwise it would be no ground for adding to the notions, whatever they are, contained in the word "group" the further requirement that it must be a group constituting an existing or known business or businesses carried on by an actual employer or actual employers. The subsidiary point open on the definition of (wages) "board" appears to me to be deprived of effect by the carefulness of the draftsman. For after the words "of the particular trade" he has placed a parenthesis in brackets - "(as herein defined)." That makes "particular trade" include a group of trades (as defined).

[49]

It remains to deal with the objection to the provision contained in the actual determination made by the Ironmongers' Wages Board on 20th February 1947 as subsequently amended. The determination, in compliance with the proclamation constituting the Board, is expressed to apply to the areas contained in a seven-mile radius of the General Post-office at Hobart and of the Post-office at Launceston. The provision attacked is that requiring payment of a minimum for overtime if a shop is kept open after a quarter to six in the evening. The attack is upon the ground that the purpose of the provision apparent ex facie is really to regulate the hours of business for shops and that that is ultra vires of the Wages Board. A wages board is authorized by the Act not only to determine the minimum rates of pay but also the number of working hours during any specified period for which such rates shall be paid (s. 23 I. and II.). In determining the minimum rates it may take into consideration the hour of the day or night when the work is to be done and fix different rates accordingly (s. 23 I. (e)). Further a board may prescribe such extra or special payments, either by way of payment for overtime or for time occupied in travelling to and from the place of work or for work done during any specified hours or for such other matters as to the board may seem just (s. 23 III.). The hours within which shops may be open for trading form a matter dealt with by the Shops Act, 1925-1945 Tas.. The determination as amended deals with "hours" and "overtime" in two separate paragraphs. The material part of that dealing with "hours" prescribes as the maximum number of working hours for which the minimum rates of pay are to be paid forty hours per week to be worked between the hours of 8.30 a.m. and 5.45 p.m., Monday to Friday inclusive. The paragraph relating to "overtime" provides for the payment of time and a half for all time of duty in excess of the ordinary hours. There is then a proviso that if a shop is open for the sale of goods after the hour fixed in the clause relating to "hours" for ceasing work, the minimum amount to be paid for overtime shall be time and a half with a minimum payment of 1s. 6d. per hour or 10s., whichever of these sums gives the higher amount. The appellant company attacks the validity of this proviso as an attempt to regulate the hours for closing shops in which there are employees governed by the determination.

At a glance

Court

Decision date

Before

Source

Judgment (57 paragraphs)

Parties