Federated Carters and Drivers' Industrial Union of Australia v McKay

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.