Clarke v Kerr

This case concerned a prosecution under section 105A(3) of the *Factories and Shops Act 1912-1954* (NSW) against Victor Kerr, who was charged with managing a shop selling motor spirit, oil, and accessories that remained open after the statutory closing time. Kerr’s defence was that section 105A of the *Factories and Shops Act* was invalid due to inconsistency with the federal *Metal Trades Award*, made under the *Conciliation and Arbitration Act 1904-1952* (Cth). The matter was removed to the High Court of Australia for determination of this constitutional question.

The legal issue before the court was whether the provisions of the *Metal Trades Award*, which regulated the hours of work for employees, rendered section 105A of the *Factories and Shops Act* inoperative by reason of section 109 of the Constitution. Specifically, the court had to determine if the federal award, by prescribing certain working hours and overtime, conflicted with the state legislation that fixed the opening and closing times for shops selling motor spirit, oil, and accessories.

The High Court held that the provisions of the *Metal Trades Award* did not absolve the defendant from observing section 105A of the *Factories and Shops Act*. The court reasoned that the federal award dealt with the hours of labour for employees, whereas section 105A of the state Act regulated the trading hours of shops. It was established that trading hours and working hours are distinct subject matters, and a federal industrial award, which is confined to settling industrial disputes, cannot extend to fixing trading hours. Therefore, there was no inconsistency under section 109 of the Constitution that would invalidate the state legislation. The court further found that even if subsection (2) of section 105A, which provided for state industrial awards to fix opening and closing times, were to be affected by federal law, subsection (1), which set statutory opening and closing times, would remain operative independently.

The court declared that the defendant was bound to observe section 105A of the *Factories and Shops Act 1912-1954* with respect to the shop in question on the date of the alleged offence. The matter was remitted to the Chief Industrial Magistrate's Court for further proceedings.