Dorman Long and Company Limited v Thomson

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The dispute arose when an employee, William Milne Thomson, sought to recover from his employer, Dorman Long & Co. Ltd., the difference between the wages he was paid and the higher rate prescribed for builders' labourers. Thomson was employed by Dorman Long, a girder-making company, and was paid according to the award for girder-making. However, for a period, he assisted in the erection of girders at a building site, work which was identical to that performed by builders' labourers.

The central legal issue before the courts was whether the employee, during the period he was assisting with the erection of girders, was entitled to be paid under the award for builders' labourers, or if he remained bound by the award for girder-making. This turned on the interpretation of sections 133(2) and 141(1)(a) of the *Factories and Shops Act 1912* (Vict.), specifically whether the Special Boards determined wages based on the craft of employment or the actual work performed. The employer argued that wages were fixed by craft, while the employee contended they were determined by the nature of the work done.

The High Court, in refusing special leave to appeal, indicated that the core of the matter was a question of fact. The Court did not delve into the legal interpretation of the Act, but the Supreme Court of Victoria had previously held that the employee was justified in being paid under the builders' labourers award. This implied that the determination of wages could be based on the work performed, even if it differed from the employee's primary craft, provided the work itself fell within the scope of another award. The application for special leave to appeal was ultimately refused.