Federated Carters and Drivers' Industrial Union of Australia v McKay

30 CLR 139

THE FEDERATED CARTERS AND DRIVERS'

INDUSTRIAL UNION OF AUSTRALIA McKAY

RESPONDENT. DEFENDANT,

APPEAL FROM A COURT OF PETTY SESSIONS OF IndustriatArbitration-AwardBreach-Information-Evidence-Production of

time-book-Demand for production-Authority to demandCondition precedent -Suspicion of breach of award.

By an award of the Commonwealth Court of Conciliation and Arbitration it was provided that each employer bound by the award should keep a time- book, and that such time-book should on demand be produced to an official of the organization of employees duly authorized by the President and Secretary of the organization at the place where the time-book was kept between the hours of 10 a.m. and noon on certain days of the month; that no authority to inspect should be given by the organization "unless the President and Secretary have good reason to suspect a breach of the award has been com- mitted by the employer whose time-sheets are to be inspected"; that no demand for production need be complied with until after the expiration of

30 CLR 140

seven days from the time when a list of members employed by the employer had been submitted to him and that one day's notice should be given to the employer of any intended inspection.

Held, that the refusal of the official demanding inspection of the time-book to state to the employer the nature of the breach of the award which the employer was suspected of having committed did not justify the employer in refusing to produce the time-book for inspection.

Held, also, that, on a prosecution of an employer for a breach of the award in having refused to produce a time-book after demand made by an official authorized by the organization, it was not necessary to prove that the President and Secretary had, when they gave the authority, good reason to suspect a breach of the award by the employer.

APPEAL from a Court of Petty Sessions of Victoria.

At the Court of Petty Sessions at Sunshine, before a Police Magis- trate, an information was heard whereby the Federated Carters and Drivers' Industrial Union of Australia charged that H. v. McKay, being a respondent bound by a certain award of the Commonwealth Court of Conciliation and Arbitration, did, after a demand by one John Elliott, an organizer of the Union duly authorized in that behalf, refuse to produce to the said John Elliott the record or time-book prescribed to be kept by the said award.

By the award it was provided in clause 14 as follows (a) Each respondent shall keep a record or time-book at his depot or yard or at an office convenient thereto showing the name of each employee who is a member of the claimant organization working for him (if the names of the members employed by him are supplied by the claimant organization) in which shall be entered the time of starting and finishing work on each day, and the amount of over- time worked and the wages and overtime paid to each employee. (b) Such record…

CaseChat Overview and Summary

The Federated Carters and Drivers' Industrial Union of Australia (the Union) appealed from a decision of a Court of Petty Sessions of Victoria. The Union had laid an information against H. V. McKay (the respondent) for breaching an award of the Commonwealth Court of Conciliation and Arbitration by refusing to produce a time-book for inspection by an authorised official of the Union. The Police Magistrate had dismissed the information, finding that the respondent's manager was justified in refusing production because the Union official had not disclosed the nature of the suspected breach of the award.

The legal issues before the court were whether the respondent was justified in refusing to produce the time-book on the grounds that the Union official did not state the nature of the suspected breach, and whether the informant was required to prove that the Union's President and Secretary had good reason to suspect a breach of the award when authorising the inspection. The court also considered whether the absence of evidence regarding the time of the demand (between 10 a.m. and noon) was fatal to the information.

The court held that the award did not make it a condition precedent for the Union official to state the nature of the suspected breach of the award before the employer was obliged to produce the time-book. The award stipulated that the time-book should be produced on demand at the place where it was kept between 10 a.m. and noon, and that no demand need be complied with until seven days after a list of members had been submitted and one day's notice of inspection had been given. These conditions had been met. The court further held that it was not necessary to prove at the trial that the President and Secretary had good reason to suspect a breach when they gave the authority to inspect, as this was a matter preceding the giving of authority and not a requirement for proof during a prosecution for refusal to produce. The court also found that the absence of evidence regarding the specific time of the demand was not a decisive factor, given the circumstances of the case.

The appeal was allowed, the order of the Court of Petty Sessions was set aside, and the case was remitted to that court for rehearing. The respondent was ordered to pay the costs of the appeal, with the costs of the first hearing to abide the result of the rehearing.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established