Ingamells v Petroff - [1934] HCA 8

INGAMELLS PETROFF

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF Factories and Shops-Information against employer-Determination of Wages Board

-Contravention of-Arrears of pay-Order for-Not limited to times disclosed in information-Evidence as to other periods admissible-Factories and Shops Act 1928 (Vict.) (No. 3677), sec. 237.

Sec. 237 of the Factories and Shops Act 1928 (Vict.), which empowers a Court of Petty Sessions to order payment to an employee of arrears of pay in addition to imposing a penalty for a contravention of the provisions of the Act, enables a Court of Petty Sessions after conviction for such contravention to hear evidence as to arrears of pay in respect of times not disclosed in the information for the offence and to order payment of such arrears, if any.

Decision of the Supreme Court of Victoria (Full Court): Ingamells v. Petroff, (1933) V.L.R. 447, reversed.

APPEAL from the Supreme Court of Victoria.

The appellant, Harry Norman Ingamells, an inspector of factories and shops, laid an information against the respondent, Angel Petroff, manufacturer, alleging that the respondent, after the coming into operation of a certain determination of the Boot Board, being a wages board appointed by the Governor in Council under the powers in that behalf conferred upon him by the Factories and Shops Act 1928 did, in respect of the period commencing on 10th February 1933 and ending on 16th February 1933 both inclusive, unlawfully employ one Lazo at a lower rate of wages than the rate determined

50 CLR 452

OF A. by the Board. Endorsed upon the information was the following

notice Take notice that if you are convicted of the offence herein mentioned application will be made for an order for such sum as the Court may consider to be due for arrears."

A Police Magistrate, sitting as a Court of Petty Sessions at Fitzroy, heard and determined the information in the usual manner and the defendant was convicted and fined £10. Thereupon the Police Magistrate upon the application of the informant proceeded to hear evidence as to wages or other moneys said to be due by the defendant to Lazo in respect of a period or periods of service commencing considerably before the period named in the information. This was done upon the alleged authority of sec. 237 of the Factories and Shops Act 1928, without any complaint having been made or any summons issued in respect of the claim, and, consequently, without any knowledge on the part of the defendant of the facts and matters alleged against him in respect of this new claim. As a result of the inquiry the defendant was ordered to pay a further sum of £30 16s. 6d. for arrears of wages and £5 5s. for costs, in default distress, and to be imprisoned for one month in default of distress. From this decision the respondent appealed to the Court of General Sessions at Melbourne, which took the same view of the meaning of sec. 237 of the Factories…

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 Ingamells v Petroff

Details

AGLC: Ingamells v Petroff [1934] HCA 8
Case: [1934] HCA 8
Decision Date: 8 May 1934

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Victoria concerning the interpretation of section 237 of the Factories and Shops Act 1928 (Vic.). The dispute arose when an inspector of factories and shops laid an information against an employer for unlawfully employing a worker at a rate of wages lower than that determined by the Boot Board for a specific period. Endorsed on the information was a notice that upon conviction, an application would be made for an order for arrears of pay. Following a conviction and penalty, the Police Magistrate, purporting to act under section 237, heard evidence and ordered the employer to pay a substantial sum for arrears of wages accrued over a period significantly longer than that specified in the information. This order was upheld by the Court of General Sessions but was subsequently set aside by the Supreme Court of Victoria, which held that the power to order arrears was limited to the period disclosed in the information.

The central legal issue before the High Court was whether section 237 of the Factories and Shops Act 1928 empowered a Court of Petty Sessions, upon convicting an employer for a contravention of the Act, to order payment of arrears of wages for a period extending beyond that specified in the information for the offence. The Supreme Court had interpreted the section to mean that the Court's power to award arrears was confined to evidence adduced in support of the specific charge laid in the information.

The High Court, in allowing the appeal, reasoned that section 237, by its plain language, grants a Court of Petty Sessions the power to order an employer to pay arrears of pay for any period not exceeding twelve months, in addition to imposing a penalty for a contravention. The Court found that the Supreme Court's implication of a restriction limiting the arrears to the period covered by the information was not warranted by the legislation. The judges noted that the section was amended to overcome previous restrictive interpretations and that its purpose was to provide a more effective means of recovering underpaid wages, even if the period of underpayment extended beyond the specific offence charged. The High Court concluded that the legislative intent was to allow the Court to consider all arrears due within a twelve-month period, irrespective of the precise dates of the offence charged, provided the employer was afforded natural justice and an opportunity to respond to the claim for arrears.

The High Court allowed the appeal, setting aside the order of the Supreme Court. Consequently, the order nisi obtained by the respondent was discharged, meaning the original order for arrears of wages made by the Court of Petty Sessions was reinstated. The appellant, the inspector, was ordered to pay the costs of the appeal to the High Court, as per an undertaking given upon obtaining special leave.

Orders