Bishop v Ford and Petrie

The case of Bishop v. Ford and Petrie involved an appeal to the High Court of Australia concerning the interpretation of provisions within the *Factories and Shops Act 1915* (Vic.) and its subsequent amendment by the *Factories and Shops Act 1922* (Vic.). The dispute arose from a charge that the respondents, employers, had contravened the Act by failing to pay an employee, Christinia McNiven, the correct rate of wages for a period of work. McNiven was employed on time wages and worked a number of hours less than those constituting an ordinary week's work. The core of the disagreement centred on whether she was entitled to an additional payment, often referred to as a "loaded rate," for the hours worked during a period that was less than a full week.

The legal issues before the court were primarily: (1) whether an employee who worked continuously from Monday to Thursday, completing a portion of an ordinary week's work, and was paid on the Thursday, was entitled to the higher rate prescribed by section 141(3) of the *Factories and Shops Act 1915* for those hours; and (2) how the term "employed on time wages for a number of hours less than the number of hours of an ordinary week's work" in section 141(3) should be interpreted, particularly in relation to the definition of a "week" and the employer's practice of paying wages on a Thursday.

A majority of the High Court, comprising Knox C.J., Higgins, and Starke JJ., held that the employee was not entitled to the additional payment. Their reasoning focused on the interpretation of "employed" in section 141(3) as referring to the actual work performed, not merely the contractual engagement. They found that because McNiven worked the full number of hours for an ordinary week's work within the calendar week (Monday to Saturday), and was not paid off or discharged at the end of the Thursday, the provision for "broken time" did not apply. The majority considered that the employer's practice of paying on a Thursday did not alter the fact that the employee completed a full week's work. Isaacs and Rich JJ. dissented, arguing that McNiven's contractual week ended on the Thursday, and therefore she was entitled to the loaded rate for the hours worked up to that point, as her employment was effectively broken for the purpose of calculating wages. The High Court affirmed the decision of the Full Court of Victoria, which had set aside the conviction.