Mallinson v Scottish Australian Investment Company Limited [1920] HCA 51

Mallinson v Scottish Australian Investment Company Limited [1920] HCA 51 - HCA 1920 case summary — Zoe

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worked there under the agreement, receiving certain wages, until 8th April 1919, when they left the service of the Company. The husband subsequently brought an action in the District Court at Sydney against the Company, claiming £28 0s. 8d., being the amount of the difference between the wages paid to him between Ist January 1918 and 8th April 1919, namely, £125 14s. 4d., and the wages to which he alleged that he was entitled during that period as a station hand and a member of the Australian Workers' Union under an award of the Commonwealth Court of Conciliation and Arbitration, namely, £153 15s. A preliminary objection was taken by counsel for the defendant that the District Court had no jurisdiction to entertain the claim, but the objection was overruled. In the course of his evidence the plaintiff stated that he was a member of the Aus- tralian Workers' Union, and had been a member for the past twenty- _ five years. Counsel for the defendant objected to this evidence as _ proof of membership of the Union, but the objection was overruled. Certain correspondence between the secretary of the Union and the 'manager of Mundawadra was put in evidence by the plaintiff without objection. In the first letter, dated 29th May 1919, the secretary stated that the plaintiff was a member of the Union, and 'made a claim on his behalf under the award substantially the same as that in the action. In the other two letters, dated Ist and 6th

June 1919, the manager of Mundawadra stated that the plaintiff had been paid all that he was entitled to, and that the case was one 'that should "come under the slow and infirm employee clause." _ The award which was the basis of the claim, by clauses 13, 14 and 15, _made provision for minimum rates of wages payable to station hands. Clause 19 provided that "the following respondents are bound _ by the award as to all its clauses excepting clauses 15, 14 and 15." 'Then followed a list of names in which appeared "The Scottish Australian Investment Co. Ltd. of Murrulebale and Mundawadra

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provision to the contrary" within the meaning of the rule stated above is to consider whether it appears from the whole purview of the Act that it was the intention of the Legislature that the remedy provided should be a substitute for the right of action which would otherwise exist ; and in determining this question it is material to consider whether the obligation imposed by the Act was designed to benefit a particular class of persons (¢.g., employees) and to compel their employers to perform certain duties for their benefit (Groves v. Lord Wimborne (1)). It is also material to consider whether the provision made by the Act for compelling obedience to its commands is in the nature of a penalty for disobedience or in the nature of compensation to the person whose rights are affected by the failure to perform the obligations imposed by the Act. As was said by Vaughan Williams L.J. in Groves v. Lord Wimborne (2) : - ' It cannot be doubted that, where a statute provides for the perform- ance by certain persons of a particular duty, and someone belonging to a class of persons for whose benefit and protection the statute imposes the duty is injured by failure to perform it, primd facie, and, if there be nothing to the contrary, an action by the person so injured will lie against the person who has so failed to perform the duty. I have equally no doubt that, where in a statute of this kind a remedy is provided in cases of non-performance of the statutory duty, that is a matter to be taken into consideration for the purpose of determining whether an action will lie for injury caused by non- performance of that duty, or whether the Legislature intended that there should be no other remedy than the statutory remedy ; but it is by no means conclusive or the only matter to be taken into consideration for that purpose. If it be found that the remedy so provided by the statute is to enure for the benefit of the person injured by the breach of the statutory duty, that is an additional matter which ought to be taken into consideration in dealing with the question whether the Legislature intended the statutory remedy to be the only remedy. But again, the fact that the Legislature has provided that that remedy shall enure, or under some cireum- stances shall enure, for the benefit of the person injured, is not conclusive of the question, and, although it may be a cogent and (1) (1898) 2 Q.B., 402. (2) (1898) 2 Q.B., at pp. 415-416.

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Court for the amount payable to him as wages or remuneration in accordance with the terms of an award, and it only remains to consider whether the Act contains provisions denying him that right. The remedies provided by the Act to compel obedience to awards are contained in sec. 5 and secs. 44-50. Omitting for the moment sec. 48, all these provisions are directed to the imposition of penalties for disobedience to an award or order of the Court. With regard to these provisions it is sufficient to say that while the right to institute proceedings is conferred on any member of an organization who is affected by the breach or non-observance of the award (sec. 44 (2) (c), the amount of the penalty bears no relation to the injury that may have been occasioned to the individual by the breach complained of, and the complainant is not entitled as of right to any portion of the amount paid by way of penalty, though by see. 45 the Court imposing the penalty may order that the penalty, or any part thereof, be paid to such person as is specified in the order. It is clear, therefore, that these provisions afford an employee no means of enforcing payment to him of the wages which the Act operating on the award entitles him to receive from his employer. With regard to sec. 48, assuming for the sake of argument, but without deciding, that a County, District or Local Court might have jurisdiction under that section to make an order against an employer for payment of the amount of wages due to an employee under an award, yet, having regard to the fact that relief can only be obtained under that section on the application of a " party to an award," which; so far as the rights of employees are concerned, would in ordinary practice almost always mean an " organization" and not the individual injured by breach of the award, and to the further fact that the application can only be made to a specified Court, we" do not think this section can be regarded as a " provision to the within the meaning of the rule in Shepherd v. Hills (1). The decision of the Supreme Court was founded on the decision of this Court in Josephson v. Walker (2), but in our opinion that decision has no application to the case now under consideration. In that case a remedy by way of action at law was given by the Act to the individual injured, but the Act expressly directed that such action

At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

Cited By (4)