Fletcher v A H McDonald and Company Pty Ltd - [1927] HCA 12

39 CLR 174

COMPLAINANT, A. H. McDONALD &COMPANY PRO-

PRIETARY LIMITED DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF Industrial Arbitration - Award - Interpretation - Apprentices- Wages-Whether

award applies to those apprenticed before award. MELBOURNE,

By an award of the Commonwealth Court of Conciliation and Arbitration, which came into operation on 1st January 1925, it was provided that apprentices might be allowed in certain trades, that only a limited number of apprentices SYDNEY,

might be taken by any respondent to the award and that the term of apprentice April 12.

ship should be five years. It was also provided that "the minimum rate of wages to be paid by any respondent to apprentices shall be " during each of the five years of apprenticeship a certain sum per week.

Held, by Knox C.J., Rich and Starke JJ. (Isaacs and Higgins JJ. dissenting) that the provision as to the minimum rate of wages applied only to apprentice- ships entered into after the award came into operation.

Decision of the Supreme Court of Viotoria (Irvine C.J.) affirmed.

39 CLR 175

39 C.L.R.]

OF AUSTRALIA.

APPEAL from the Supreme Court of Victoria.

On 5th September 1922 an indenture of apprenticeship was entered into between A. H. McDonald &Co. Pty. Ltd. as employer, Edward Gordon Fletcher (who was then fourteen years of age) as apprentice, and Walter Thomas Fletcher as parent or guardian, whereby the Company agreed (inter alia) to take the apprentice as its apprentice for the full term of six years from 5th September 1922, to teach and instruct him in the process, trade or business of mechanical engineer, and to pay him wages at the following rates 9s. per week for the first year, 13s. 6d. per week for the second year, 17s. 6d. per week for the third year, 22s. per week for the fourth year, 30s. per week for the fifth year and 41s. 6d. per week for the sixth year. On 22nd December 1924 an award was made by the President of the Commonwealth Court of Conciliation and Arbitration in a dispute between the Amalgamated Engineering Union and certain respondents including the Company. The award, except as to certain provisions which are not material, was to be operative from midnight on 1st January 1925. The provisions of the award were, SO far as is material, as follows :-

2. (a) Apprentices may be allowed to any of the following trades blacksmith, brassmoulder, brassfinisher, coppersmith, motor-cycle mechanic, die-sinker, electrical fitter, electrical or oxy-acetylene welder, electroplater, fitter, locksmith, motor mechanic, first class machinists, patternmaker, plumber, scientific-instrument maker, scale maker, safe maker and /or turner.

(b) The number of apprentices that may be taken by any respondent for any of the said trades shall not exceed one for every three journeymen employed by him in the trade, and for any surplus of journeymen over three or its multiple. But this limitation of apprentices may be altered in the case of any particular respondent with the written consent of the claimant…

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.

Continue reading Fletcher v A H McDonald and Company Pty Ltd

Details

AGLC: Fletcher v A H McDonald and Company Pty Ltd [1927] HCA 12
Case: [1927] HCA 12
Decision Date: 12 April 1927

CaseChat Overview and Summary

The case of *Fletcher v A H McDonald and Company Pty Ltd* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The dispute arose from a claim by Edward Gordon Fletcher, an apprentice, against his employer, A H McDonald & Co Pty Ltd, for unpaid wages. Fletcher contended that the minimum wage rates prescribed by a Commonwealth Court of Conciliation and Arbitration award, which came into operation on 1 January 1925, should apply to him. The employer argued that the award did not apply to apprentices who had been indentured before the award's commencement date.

The central legal issue before the High Court was the proper construction of the award, specifically whether its provisions regarding minimum wages applied to apprentices who had entered into indentures of apprenticeship prior to the award's operative date. This required the Court to consider the intention of the award-making body and how the award's terms interacted with existing contractual obligations between employers and apprentices.

A majority of the High Court, comprising Knox C.J., Rich and Starke JJ., affirmed the decision of the Supreme Court of Victoria. They reasoned that the provisions of the award, including those relating to the term of apprenticeship and the prohibition of premiums, were intended to apply only to apprenticeships commenced after the award came into operation. While acknowledging the award's potentially "loosely drawn" nature, the majority found that the wage provisions were directly connected to the five-year apprenticeship term contemplated by the award, which itself applied to new indentures. They emphasised that if the Arbitration Court intended to vary or cancel existing contracts of apprenticeship, this should have been expressed in clear and precise language, rather than by implication. Isaacs and Higgins JJ. dissented, with Higgins J. particularly relying on a subsequent variation to the award which, in his view, clarified that the award did apply to apprentices indentured before its commencement, provided they were not indentured prior to 1 January 1921.

The High Court, by a majority, dismissed the appeal and affirmed the judgment of the Supreme Court of Victoria. Consequently, the apprentice, Edward Gordon Fletcher, was not entitled to recover the difference between the wages paid under his pre-existing indenture and the minimum rates prescribed by the award.

Orders