Kilminster v Sun Newspapers Limited [1931] HCA 37

al proprietor, to work as a journalist in Sydney under an agreement made Canada by which it was provided that he should remain in that service unt en outy the expiration of reasonable notice to be given by either party, salary ikon and fixed on a yearly basis, After entering upon his duties he became a m MeTiernan JJ. b

of an industrial organization which subsequently applied for, and obtained from the Commonwealth Court of Conciliation and Arbitration, an aw covering his calling, Clause 22 of the award provided that "the employm of a member . . . shall not without just cause in law be terminated either party unless," in the case of the plaintiff, "two months' notice of such termination shall have been given." The defendant company gave to #l plaintiff two months' notice of its intention to terminate his employment. In an action by the plaintiff for damages on the ground that such notice was » " reasonable notice" as required by the agreement,

Held, that the provisions of clause 22 did not interfere with the plain

right ex contractu for a period of notice longer than that prescribed by clause. -

Judgment of the Supreme Court of New South Wales (Full Court Kilminster v. Sun Newspaper Ltd., (1931) 31 8.R, (N.S.W.) 472, reversed.

Inanaction brought by Stanley August Kilminster against the Sun papers Ltd., a company incorporated under the laws of New uth Wales and carrying on the business of a newspaper proprietor hin that State, the plaintiff claimed £1,000 damages on the ground of the wrongful termination of an agreement in pursuance of which had, whilst in Canada, been engaged to work for the Company in $ydney under certain terms and conditions.

'The declaration, dated 7th November 1930, stated that " by an agreement made in . . . Canada between the plaintiff, who 'was then a cable specialist, and the defendant, in consideration that the plaintiff would enter into the service of the defendant and serve 'it until the service should be determined as hereinafter mentioned,

the salary of £650 per annum, the defendant promised the plaintiff to retain him in the said service until the expiration of a nable notice to be given by the plaintiff or the defendant to the er of them to determine the said service ; and the plaintiff entered the said service on the terms aforesaid and so continued therein a long time, and until the breach of the said promise hereinafter and was always ready and willing to continue in the said e until the said service shculd be determined as aforesaid eof the defendant always had notice ; yet the defendant without such reasonable notice as aforesaid having been given by either he plaintiff or the defendant to the other of them to determine the aid service dismissed the plaintiff from the said service and refused 0 retain the plaintiff therein until the said service should be so

es and entered into the service of the Company, and before the of the alleged breach, he became a member of an indus- organization known as the Australian Journalists' Association. nt to his so joining, a dispute having arisen between the ssociation (acting on behalf of and for the benefit of its members)

d 'the Company and other newspaper proprietors, an application

was made by the Association to the Commonwealth Court of Con- ciliation and Arbitration for an award, which was granted. The award so made provided for the classification of the members of Association into grades A, B, C and D respectively, and, as rega each such grade, the " minimum weekly rates of pay," the hours of employment to be observed, termination of services, and other terms and conditions relating to the industry of journalism; that the two months' notice prescribed by the award as applicable to the plaintiff had been duly given to him. 4

The plaintiff was, by the terms of the award, classified as a member of B grade, and, although the salary prescribed in the award for su ch. grade was considerably less than the amount stated in the agree ment, the higher salary was preserved to the plaintiff by clause 20 of the award, which provided that "any member who before this award coming into force is in receipt of a higher salary than that fixed by this award for his grade shall during the currency of award be entitled to receive at least such higher salary, irrespective of the work done by him." Clause 22 of the award 1 headed 'Termination of Services," and provided substant as follows : - ''(a) After a period of two months' service, d which period one week's notice shall suffice, the employment of member of the classified staff . . . shall not, without just cm in law, be terminated by either party unless the following period

termination by a respondent, payment made in lieu thereof:

B Grade - Two months ; (6) In the event of any newspaper ceasing publication the respondent concerned shall give members an. additional month's notice of the termination of their employment to

notice shall be made from week to week," and they were to cease or be proportionately reduced if the employee secured other employ equally or less remunerative respectively, during the currency of

to make application in writing to the Registrar of the Com wealth Court of Conciliation and Arbitration "for a certificate ©

applicant ought in relation to a particular case to be exempted m the operation of some specific provision of the award.

_ The plaintiff in his replication stated that the nature of the work d by him did not come within the scope of the award, and also demurred to the defendant Company's plea on the ground the award fixed a minimum notice that should be given to P e services of persons bound thereby, and it did not prevent 'such persons making contracts of service not inconsistent with its terms. The replication was demurred to by the defendant Com- pany, its principal contentions being (1) that the terms and conditions _ of the award were also terms and conditions of the plaintiff's service with the Company, and that two months' notice of the determina- tion of such service should be regarded in law as reasonable notice of the determination of such service, and (2) that the terms and conditions of the award with reference to " termination of services" came an express condition of the service of the plaintiff with the endant and should be accepted as the condition under which the defendant was entitled to determine the service of the plaintiff with

e defendant. _ The cross-demurrers were argued before the Full Court, which gave

• judgment thereon in favour of the defendant Company : Kilminster v. Sun Newspaper Co. (1). From this decision the plaintiff now, by special leave, appealed to the High Court.

_ Watt K.C. (with him Windeyer), for the appellant. The question for determination is ; What is the effect of an award upon an existing _ contract under which the employee is entitled to greater benefits as _ to general conditions than under the award, and receives a higher "wage than the minimum wage prescribed by the award? The condition fixed in the award as to sufficiency of notice might be opriate to a maximum weekly wage, but is totally inappropriate the contractual condition in which the term of service is yearly, nd the salary higher than that prescribed by the award. An award Joes not in toto supersede a contract. The most an award can do

to give rights to the employer or employee to reshape his contract

in terms of the award. The award does not make the contract: it~ only prescribes the law in relation to which the contract is made. The award does not have the effect of cutting down the more bene- _ ficial provision of the contract to the minimum conditions preseribed_ by the award. Wages are payable under the award on a weekly basis, and the period of the notice as prescribed by the award was determined upon that basis. Considering that the appellant was specially engaged in Canada on a yearly basis, and at a rate of wage - considerably in excess of the wage prescribed by the award, the - period of notice mentioned in the award is neither applicable nor reasonable. The effect of an award is to make a law on the basis of which future contracts may be made ; it has no effect upon con- tracts already in existence. The appellant's rights depend upon the contract and not upon the award. This is not a case of super- session ; the appellant is entitled to all the benefits of the award (Federated Seamen's Union of Australasia v. Commonwealth Steam- ship Owners' Association (1)). Under the contract the appellant was entitled to reasonable notice; the only effect the award had on this provision was that he should get two months' notice asa _ minimum. In the circumstances of this case the appellant is entitled 4 to more than the minimum prescribed by the award.

E. M. Mitchell K.C. (with him Cook), for the respondent. Clause s 22 of the award should be construed as prescribing proper and adequate notice, that is, sufficient notice. An award is the settle- ment of a dispute, and, as the award in this case was made after the contract, there was, after such contract, a dispute in the industry in respect of all the matters adjudicated upon including (inter alia) wages and termination of employment. By becoming a party to the dispute the appellant showed that he was dissatisfied with the terms and conditions of the contract, which, upon the points in dispute, must be regarded as having been superseded by the award. Under clause 25 of the award the appellant could have applied for exemption from the operation of the award; no such application has been made by him. Where existing conditions were to be preserved the award makes express provision to that end. Clause 22, which

in detail with mutual notice as to termination of employment, be regarded as fixing what is reasonable and requisite.

s J, As applying to this case it means that at least two notice must be given.]

award lays down maximum conditions as well as minimum ditions ; minimum conditions are expressly stated to be such. he contract between the parties is silent as to what period of notice ll be given. Upon a proper construction of clause 22 as a whole, two months' notice applicable in the case of the appellant is fixed as being the minimum but as being mutual notice reason- between the parties; the clause establishes the mutual and rights of the parties: it does not purport to say that at two months' notice must be given. In the circumstances the should be construed as if it were an agreement between the lant and the respondent themselves, covering (inter alia) what of notice they deem to be reasonable between them, the two s' notice prescribed by the award being the measure of the notice which should be given between them and which they d as being sufficient.

are all of opinion that the provisions of clause 22 of the merely mean that the employment shall not be put an end to 88 notice as therein prescribed shall be given, and they do not with the rights of the parties with respect to longer notice contract or otherwise. The judgment of the Full Court must, herefore, be reversed and the appeal allowed. The plaintiff is to judgment on both demurrers, and the defendant's are overruled. The defendant must pay the costs of proceedings and in the Court below.

Appeal allowed. Judgment for plaintiff on demurrers.

for the appellant, Marsland & Co. for the respondent, Minter, Simpson & Co. J.B.