Brownells Ltd v Ironmongers' Wages Board - [1950] HCA 3

BROWNELLS LIMITED

THE IRONMONGERS' WAGES BOARD

RESPONDENT. RESPONDENT,

BROWNELLS LIMITED

THE DRAPERS' WAGES BOARD

RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF Industrial Law-Wages Boards-Power to establish board in respect of any trade

or group of trades of an employer-Establishment of board by reference to group of trades exceeding activities of employers-Validity-Power of board to deter- mine rates by reference to hour when work done-Determination fixing overtime payment in respect of period prior to statutory closing be--Validity-Wages - Boards Act 1920-1946 (Tas.) (11 Geo. v. No. 51-10 Geo. VI. No. 25), April 5.

SS. 6, 11, 23-Shops Act 1925-1945 (Tas.) (16 Geo. VI. No. 29-9 Geo. VI. No. 20), S. 8.

The Governor of Tasmania, being empowered by S. 11 of the Wages Boards Act 1920-1946 (Tas.) to establish a wages board in respect of any trade or group of trades adopted in his proclamation descriptions of the trades con- cerned which did not conform with any business carried on in practice by an employer. In the case of the Ironmongers' Wages Board, there was grouped SO wide a variety of selling businesses that, as the evidence showed, no ironmonger carried on all of them. In the case of the Drapers' Wages Board, certain classes of goods were adopted as the description of the trade concerned, whereas in practice sellers of these goods were accustomed to sell them in association with many other wares.

81 CLR 109

Section 23 of the Wages Boards Act 1920-1946 (Tas.) provides that Every board-I. shall determine the minimum rates which may be paid for wages, or for piecework, or both; and in fixing such rates the board may take into consideration the following matters or any of them and may fix different rates accordingly

(e) the hour of the day or night when the work III. may determine such variations of, or additions to, such rates of hours, and prescribe such extra or special payments, either by way of payment for overtime

as to the board shall seem just VII. may fix special rates to be paid for any work which the board considers warrants a special rate." Section 8 of the Shops Act 1925-1945 (Tas.) provides that shops shall close at 6 p.m. By clauses 5 and 6 of the Determination of the Ironmongers Wages Board (as varied) it is provided

5. The maximum number of working hours per week in respect of which the minimum rates for wages

shall be paid shall be 40 to be worked between the hours of 8 a.m. and 5.45 p.m., Monday to Friday inclusive. 6. For all time of duty in excess of the ordinary hours, payment

Provided that if a shop is open for the sale of goods after the hour fixed in clause 5 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 highest amount."

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1950] HCA 3
Decision Date: 5 April 1950

CaseChat Overview and Summary

The High Court of Australia heard appeals from the Supreme Court of Tasmania concerning the validity of determinations made by the Ironmongers' Wages Board and the Drapers' Wages Board. The appellant, Brownells Ltd, challenged these determinations, arguing that the respective Wages Boards were not validly established under the *Wages Boards Act 1920-1946* (Tas.). Specifically, Brownells Ltd contended that the proclamations establishing the boards described trades in a manner that did not conform to actual business practices of employers, either by grouping disparate trades or by defining a trade too narrowly.

The legal issues before the court were twofold. Firstly, whether the Governor of Tasmania had the power to establish a Wages Board in respect of a "group of trades" where the constituent trades were not necessarily carried on together by any single employer, or whether the definition of "trade" in the Act required a more cohesive or practically existing grouping of activities. Secondly, in relation to the Ironmongers' Wages Board, the court had to determine whether a specific provision within its determination, which imposed a minimum overtime payment for shops open after a certain hour, was a valid exercise of the Board's powers or an unlawful attempt to regulate trading hours, thereby conflicting with the *Shops Act 1925-1945* (Tas.).

The Court reasoned that the definition of "trade" in the *Wages Boards Act* was broad enough to encompass any function, process, or business carried on by an employer, and importantly, included the power to establish a board for a "group of trades." The Court held that the Act did not require that all trades within a proclaimed group be carried on by a single employer, nor did it mandate that the grouping reflect existing industrial homogeneity. Therefore, the establishment of both the Ironmongers' and Drapers' Wages Boards was deemed valid. However, regarding the Ironmongers' Wages Board determination, the Court found that the proviso concerning minimum overtime payments was an illegitimate exercise of power. It concluded that the Board lacked the authority to regulate trading hours, a matter specifically addressed by the *Shops Act*, and that the provision was not a genuine attempt to fix overtime rates but rather an attempt to penalise employers for keeping shops open beyond a certain hour, thus exceeding the Board's statutory remit.

Consequently, the High Court dismissed the appeal concerning the Drapers' Wages Board, affirming the validity of its determination. Conversely, the appeal relating to the Ironmongers' Wages Board was allowed, with the proviso to clause 6 of its determination being quashed as invalid.

Orders