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[1935] HCA 11
General information, not legal advice.
High Court of Australia
1935-07-01
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BS AUSTRALIAN COMPANY LIMITED Responpent. DerENDANT,
ON APPEAL FROM A COURT OF PETTY SESSIONS OF é NEW SOUTH WALES.
Arbitration - Award - Provision that minors shall not be engaged in the H.C. or A. industry except under contracts of apprenticeship framed in conformity with the 1935.
'The respondent company was charged with having committed a breach of /4"-_20, 22.
award of the Commonwealth Court of Conciliation and Arbitration which Rich, Dixon, SNE 200 Cnt cuits GubclA nt be cignged in certain specified. one ents. _ occupations except under contracts of apprenticeship framed in accordance with the award, Both the respondent company and the union of employees _ by which the information was laid, were parties to the award. The minor in question was not a member of the union. 'The information was dismissed on
the ground that the award did not apply to the non-unionist employees of
_ unionist minors were affected as an incident of its operation, the provision in the award relating to the engagement of minors in the industry was within the ambit
In an information laid by William Christopher Long, a meml of the Commonwealth Council of the Amalgamated Engineering Union (Australian Section), it was alleged that Chubbs Australian Co. Ltd., an organization bound by an award made on 25th 1930 by the Commonwealth Court of Conciliation and Arbitration under the provisions of the Commonwealth Conciliation and Arbitra- tion Act 1904-1930, and still in force, wherein the union and others were claimants and the defendant and others were respondents, did on 21st May 1934 commit a breach of the award by failing to ol 7 it by engaging at its place of business at Sydney, a minor wil the meaning of the award in the occupation of fitting and turni otherwise than under a contract of apprenticeship framed in conformity with the award.
It was admitted upon the hearing before the magistrate th (a) Long was a member of the Commonwealth Council of the A gamated Engineering Union, an organization of employees duly registered under the provisions of the Commonwealth Conciliatio and Arbitration Act, and was duly authorized to sue on behalf the union; (b) that the defendant company was at all mater times a respondent to the award of the Commonwealth Court Conciliation and Arbitration made on 25th March 1930, whi award was still in force; (c) that the union was also a party t and bound by the award; (d) that the defendant company 0 2lst May 1934 employed one Edward Stokes, a minor, eighte years of age, in the occupation of fitting and turning, otherwise under a contract of apprenticeship framed in accordance with | award ; (e) that the defendant company on 21st May 1934 emp! members of the union, and in respect of those members was boun by the provisions of the award ; and (f) that Stokes was not am of the union.
Without admitting the relevancy thereof, it was admitter (g) that the defendant company was at all relevant times re} as a trainee employer under the Engineers, &c. (State) Apprentices! Award, published 3rd November 1933, and made by the Engi &c. (State) Apprenticeship Council pursuant to the provisions
Industrial Arbitration Act 1912 (N.S.W.), as amended by the Industrial Arbitration (Amendment) Act 1926 (N.8.W.), and by the
may by agreement with his master serve as an apprentice until reaches the age of 23 years. (14) Every contract of apprenticeshij hereafter made shall contain : - i. The names of the parties. ii, Th date of birth of the apprentice. iii. A statement of the trade o trades to which the apprentice is to be bound and which he is to be taught in the employer's workshop during the course of and for th purposes of his apprenticeship. iv. The date at which the p
of apprenticeship is to commence or from which it is to be calculated. v. A covenant by the employer to teach the specified trade and b the employee to obey the lawful commands of the master. (15) N employer shall either directly or indirectly or by any pretence o device receive from any other person or require or permit any per
to pay or give any consideration in the nature of a premium bonus for the taking or binding of any probationer or apprentic
(21) In any State in which an Apprenticeship Commis: or other body under statutory authority has issued or may her
issue any regulations relating to apprentices, such regulati notwithstanding anything contained in this award shall (except | to sub-clauses 1-3, 5-13, 15 and 19 of this clause) operate in sue State."
The magistrate dismissed the information. He found that tl terms of the award did not apply to non-unionist employees of thi defendant company. :
From this decision the informant appealed to the High Court! way of case stated. The question for the opinion of the Court wai Was the magistrate's determination erroneous in point of law? :
The appeal came on for hearing in November 1934, and adjourned so that the parties might ascertain the most conve way of bringing the matter before the Court for the purpo dealing with the questions involved. On 20th March 1935 1 appeal again came on for hearing.
E. M. Mitchell K.C. (with him De Baun and Gee), for the ap} It is agreed between the parties that as a matter of constru
the provision in the award relating to minors extends to all m irrespective of whether or not they are members of an indi union. The question now before the Court involves a reconsideral
; In re Metropolitan Gas Co. (1) and in Amalgamated Clothing Allied Trades Union of Australia v. D. E, Arnall & Sons; In American Dry Cleaning Co. (2). The provision that minors all not be engaged in certain specified occupations except under ontracts of apprenticeship framed in conformity with the award is valid provision, notwithstanding that it is applicable equally to non-unionists as to unionists. The object of the provision is, at twofold: (a) to prevent the degeneration of the occupations fied therein into unskilled occupations, and (6) to ensure that he employment of juvenile labour shall not adversely affect the d of wage for work of a skilled description. The provision
lso secures for unionist apprentices equality of conditions with unionist apprentices. The question of the employment " of of any particular sex or age, being or not being members of organization or body " is an " industrial matter," and, therefore, y be the subject of an 'industrial dispute " within the meaning 'those expressions as defined in sec. 4 of the Commonwealth Concilia- on and Arbitration Act 1904-1930. These statutory definitions and rovisions are unambiguous and definite, and, it is submitted, do t harmonize with the view expressed in Alderdice's Case (3). The s expressed by Higgins J. in Alderdice's Case (4), and by Isaacs n Arnall's Case (5) are correct, and should be adopted. See. 25 the Act contemplates the formulation of schemes of apprentice- Sec. 25a also has a material bearing upon the matter. There
intention on the part of the Legislature to restrict the operations the Court to apprentices who are unionists, or to apprentices who re not unionists. It is important that entry into the various s should be controlled and regulated so as to prevent employment therein of unskilled persons. Persons cannot e skilled unless they are taught. This is best achieved by during apprenticeship (Encyclopedia Britannica, 11th ed. vol. 11., pp. 145, 147). The provision confers benefits upon employees ; it tends to ensure security of employment. The
41 C.L.R. 402. (3) (1928) 41 C.L.R., at p. 435. 43 C.L.R. 29. (4) (1928) 41 C.L.R., at pp. 428, 429. (5) (1929) 43 C.LR., at pp. 46, 47.
'the decision in Amalgamated Engineering Union v. Alderdice Pty. ¥-
formulation of apprenticeship articles covering conditions of em ment and rates of wage is a matter in which industrial unions hay a real interest, and has been so regarded by the Court (The Bo Case (1); Amalgamated Society of Engineers v. Adelaide Steamshi Co. (2); In re Process Engravers (Cumberland and Ne Apprenticeship Council (3) ). [He was stopped.]
O'Mara, for the respondent. The provision of the award noy
under consideration is ultra vires. The Commonwealth Conei and Arbitration Act does not confer power upon the Common Court of Conciliation and Arbitration " to make awards prescri
by an organization which is a party to that dispute " (Alderdice Case (4); Arnall's Case (5) ). The adoption by the Court of # argument put forward on behalf of the appellant would involve th overruling of Alderdice's Case (6), and also of Arnall's Case (i Those cases should not be reconsidered at this stage. The argume addressed to the Court on behalf of the appellant is similar to th argument put to the Court in Alderdice's Case (6). An applicatior to re-open the question decided in that case was refused by Court in Arnall's Case (7).
[Drxon J. referred to The Tramways Case [No. 1] (8).]
The matter should not be further litigated. It should be regard as having been concluded, particularly as the judgments sou; be overruled have for a long time been acted upon in good fa by the community.
Tue Court delivered the following written judgment : - This appeal is brought under sec. 39 (2) (b) of the Judiciary 1903-1933 directly to this Court from a decision of a Court of Pet Sessions exercising Federal jurisdiction.
(1) (1910) 4 C.A.R. 1, at p. 15. (4) (1928) 41 C.L.R., at pp. 4H, # (2) (1921) 15 C.A.R. 297, at pp. 325 (5) (1929) 43 C.L.R. 29. et seq. (6) (1928) 41 C.L.R. 402.
(3) (1933) 32 ALR. (N.S.W.) 90. (7) (1929) 43 C.L.R., at pp. 34 (8) (1914) 18 C.L.R. 54, at pp. 57, ¢
i. iby the decision appealed from an information under sec. 44 (1)
"of the Commonwealth Conciliation and Arbitration Act 1904-1930 was dismissed. The information, which was laid by an officer of _ anemployee's organization bound by an award of the Commonwealth
Court of Conciliation and Arbitration, alleged that the respondent.
an employer, committed a breach of the award. The breach charged _ was that the respondent engaged a minor in an occupation, specified 7 in the clause in the award relating to apprenticeship, otherwise than under a contract of apprenticeship framed in conformity with the The clause in question provides that minors shall not be in given occupations except under contracts of apprentice- framed in conformity with the award. It fixes the proportion apprentices to tradesmen which an employer may take. It s for the period of apprenticeship, for the rates of wages to paid to apprentices in successive years of service, for hours and e and for some less important conditions. Some of the s of the contract of apprenticeship are prescribed, and certain are forbidden. For instance, the employer may not put the entice to piece-work ; he may not exact a premium. There
e respondent admittedly did engage a minor in a manner
y to the clause. But its defence to the information was that clause is invalid because it was beyond the jurisdiction of the mmonwealth Court of Conciliation and Arbitration to include it eaward. And upon this ground the information was dismissed. contention is not based upon the character of the industrial e; it is not suggested that the clause travelled outside the of the claims from which that dispute arose. On the contrary,
ition is that because the clause relates to apprentices who are
members of the employee's organization, therefore, dispute or
0 dispute, it is beyond the jurisdiction of the Court of Conciliation
Now the Commonwealth Conciliation and Arbitration Act 1904- appears specifically to contemplate the very thing which is
H.C. or A. definition of "industrial matters" includes " the employn
or non-employment . . . of persons of any partici age . . . or being or not being members of any organization association or body." "Industrial dispute" is defined to me
an industrial dispute extending beyond the limits of any one Stat and to include any dispute as to industrial matters. Sec. 25 requires the Court to take into consideration any scheme of apprenticeship provided by or under State law when the Court determines any industrial dispute in which the rates of pay or conditions of employment applying to apprentices in any industry are in question. The employment of apprentices in industry, # relation to tradesmen, and the use of apprentices by employers the prejudice, real or supposed, of other labour has, as is well known been a common source of industrial conflict. The reason for lies in the fact that tradesmen have a material interest which is ve real in the conditions of juvenile labour and of juvenile training the industry in which they work. The effect which conditions « that description may produce upon the working conditions of ad lt in the industry is direct and substantial. We think that this circum- stance removes the objection upon which the respondent rel Apprentices are, of course, recruited from boys, and more often th not before they have become members of an industrial cxganization The object of the clause is not to confer advantages on apprenti although, no doubt, in framing it their interests have not forgotten. Its object is to benefit the members of the organization by preventing what were considered abuses from which consequentia disadvantages to them would arise. The only rights given by th clause are given to the organization and to its members. The onl duties imposed are imposed upon employers from whom thi organization. demanded that they should deal with all apprentic in a manner similar or analogous to that prescribed by the aw The rights and duties, therefore, created by this clause are, we tl confined to the disputants. It is true that when, in comp! with the award, an employer and an apprentice enter into a contri of apprenticeship, mutual rights and duties will arise between th But these rights and duties will rest entirely in contract. They
not spring from the award. The case of apprenticeship appears
Amalgamated Engineering Union vy. Alderdice Pty. Ltd.; In re itan Gas Co. (1), Gavan Duffy J.,as he then was, and Starke
e only difference is that the regulation of apprenticeship is, or y be thought to be, beneficial to the others, the apprentices. The ound of attack upon it in this case alleges that it confers benefits n non-disputants to which they would obtain a legal right under award.
ith strangers to the dispute, an award may regulate their entry these relations, at any rate if it assumes to do no more than er rights and impose duties upon the disputants and, in the case f organizations, their present and future members.
n view of the course of the argument, it appears desirable to it the observations upon the decision made by Rich and Dizon in Amalgamated Clothing and Allied Trades Union vy. D. E. Arnall
er, the Court was composed of six Justices and three of Isaacs J., Higgins J. and Powers J., although giving the e answer to the question asked by the special case did so for rt reasons, and two of the Justices, Zsaacs J. and Higgins J., sly dissented from the reasons of Knox C.J., Gavan Duffy J. d Starke J. In these circumstances these reasons cannot be said to be the ratio decidendi of the order made by the Court."
(1928) 41 C-LAR., at p. 435. (2) (1929) 43 C.L.R., at pp. 51, 52. i PS) (1020) 43 CLR. 20. oe
H.C.or A. For Isaacs J., as he then was, dissented and Rich and Dixon J. a considered it futile to go into the question in view of the opinion Loxe - _ already expressed in Alderdice's Case (1) by Knox O.J., Gavan Duffy J.
Cutsss and Starke J. which, as they adhered to it, would in any even t
AvST®ALAN prevail in Arnall's Case (2). Upon the question whether in the
Ring, Court such a decision has more than a persuasive authority we refer Pixon J. to the judgments of Rich and Dixon JJ. in Tasmania v. Victoria (3), MeTieman J. We have not thought it necessary to discuss every term of clause impugned, because the respondent disobeyed the clause
its entirety, and no particular provision which the clause con'
has been made the subject of a separate or independent attack.
We think the appeal should be allowed with costs, and the informa-
tion remitted to the magistrate to be dealt with according to law.
Appeal allowed with costs. Order appealed 1 set aside. Information remitted to magistrate.
Solicitors for the appellant, Sullivan Bros. Solicitors for the respondent, Salwey & Primrose.
(1) (1928) 41 C.L.R. 402. (2) (1929) 43 C.L.R. 29. (3) (1935) 52 C.L.R. 157.