H v McKay Pty Ltd v Hunt - [1926] HCA 36

H. v. McKAY PROPRIETARY LIMITED HUNT

ON APPEAL FROM A COURT OF PETTY SESSIONS OF Industrial ArbitrationInconsistency between Commonwealth law and law of State

-Award of Commonwealth Court of Conciliation and ArbitrationDetermination of State Wages Board-Minimum wages-Higher minimum fixed by Wages MELBOURNE,

Board-Commonwealth Conciliation and Arbitration Act 1904-1921 (No. 13 of Oct. 5, 18.

1904-No. 29 of 1921), secs. 28, 30-Factories and Shops Act 1915 (Vict.) (No. 2650), secs. 222, 226-The Constitution (63 &64 Vict. c. 12), sec. 109. High Court - Jurisdiction - Appeal from Court exercising Federal jurisdiction

-Conviction for offence against State law-Conflict between Commonwealth law and law of State-The Constitution (63 &64 Vict. c. 12), secs. 73, 109- Judiciary Act 1903-1920 (No. 6 of 1903-No. 38 of 1920), sec. 39.

An employer, who had paid his employee wages at the minimum rate prescribed by an award of the Commonwealth Court of Conciliation and Arbitration, was prosecuted before a Court of Petty Sessions of Victoria for the offence, created by sec. 226 of the Factories and Shops Act 1915 (Vict.), of not having paid the employee wages at the higher minimum rate prescribed by a Wages Board appointed under that Act. The employer raised the defence that the determination of the Wages Board was inconsistent with the award of the Commonwealth Court of Conciliation and Arbitration and invalid, but he

Held, (1) that an appeal from the conviction lay to the High Court under sec. 39 of the Judiciary Act 1903-1920, and (2) that the determination of the Wages Board was inconsistent with the award and was invalid.

Troy v. Wrigglesworth, (1919) 26 C.L.R. 305, and Clyde Engineering Co. V. Cowburn, (1926) 37 C.L.R. 466, followed.

38 CLR 309

APPEAL from a Court of Petty Sessions of Victoria.

At the Court of Petty Sessions at Sunshine before a Police Magistrate an information was heard by which William Hunt, an Inspector of Factories and Shops, charged that H. v. McKay Pty. Ltd. did, after the coming into operation of a determination of the Carters and Drivers Board, being a Wages Board appointed under the powers conferred by the Factories and Shops Acts of Victoria, in respect of the week ending 23rd January 1926, unlawfully employ one A. C. Barrett, within the Metropolitan District, as a driver driving one horse, within the meaning of the determination, at a lower rate of wages than the rate determined by such Board. By an award made by the Commonwealth Court of Conciliation and Arbitration in a dispute to which the Federated Carters and Drivers Industrial Union of Australia, of which Barrett was a member, and a number of employers, including the defendant, were parties, the minimum weekly wages prescribed for an adult driver of one horse was £4 9s. 6d. in Melbourne. The dispute in respect of which the award was made was based on a claim made by the Union which included a demand that the drivers of one horse should be paid a weekly wage of…

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 H v McKay Pty Ltd v Hunt

Details

AGLC: H v McKay Pty Ltd v Hunt [1926] HCA 36
Case: [1926] HCA 36
Decision Date: 18 October 1926

CaseChat Overview and Summary

The case of H. v. McKay Pty Ltd v Hunt involved an appeal to the High Court of Australia from a conviction by a Court of Petty Sessions in Victoria. The appellant, H. v. McKay Pty Ltd, was charged with an offence under the Victorian Factories and Shops Act 1915 for failing to pay an employee the minimum wage prescribed by a determination of the Carters and Drivers Wages Board. The employer had paid the employee the minimum wage stipulated by an award of the Commonwealth Court of Conciliation and Arbitration, which was a lower amount than that set by the Victorian Wages Board. The employer's defence was that the Wages Board determination was inconsistent with the Commonwealth award and therefore invalid under section 109 of the Constitution.

The High Court was required to determine two principal legal issues. Firstly, whether an appeal from the conviction lay to the High Court, given that the decision of the Court of Petty Sessions involved the interpretation and application of federal law, specifically section 109 of the Constitution, and thus exercised federal jurisdiction. Secondly, and more crucially, the Court had to decide whether the determination of the Victorian Wages Board, which prescribed a higher minimum wage than the award of the Commonwealth Court of Conciliation and Arbitration, was valid or invalid due to inconsistency with the federal award.

The Court, in allowing the appeal and quashing the conviction, reasoned that the appeal was competent under section 39 of the Judiciary Act 1903-1920, as the matter involved the exercise of federal jurisdiction. On the substantive issue, the Court held that the determination of the Wages Board was inconsistent with the Commonwealth award and therefore invalid. This decision followed the principles established in previous High Court cases, notably *Clyde Engineering Co. v. Cowburn*. The Court found that where a State law or determination prescribes a higher minimum wage than a valid award of the Commonwealth Court of Conciliation and Arbitration in a dispute extending beyond the limits of one State, the State provision is invalid to the extent of the inconsistency, by operation of section 109 of the Constitution. The Court concluded that the Victorian Wages Board determination could not prevail over the earlier Federal award.

Orders