John Heine and Son Limited v Pickard

29 CLR 592

JOHN HEINE &SON LIMITED PICKARD Industrial ArbitrationAward-Minimum rate of wages-Apprentices-Federal

By an award of the Commonwealth Court of Conciliation and Arbitration SYDNEY,

it was provided that Except as provided in sub-clause (g) the minimum rates of wages to be paid by any respondent to apprentices shall be as follows - as (Then followed certain sums per week for each year of service.) Sub-clause (g) provided that an employee who complied with certain conditions should be deemed to be an apprentice, and concluded: " And the minimum rate to be paid to him from time to time shall not be less than the minimum rate pre- scribed by or under the appropriate State law."

Held, that where the appropriate State laws prescribed for such an employee a minimum rate less than that prescribed by the Federal award he was entitled to receive payment at a rate not less than the minimum rate prescribed by

APPEAL from a Stipendiary Magistrate of New South Wales.

Before a Stipendiary Magistrate of New South Wales exercising Federal jurisdiction, an information was heard whereby Harry Pickard alleged that John Heine &Son Ltd., which was bound by an award of the Commonwealth Court of Conciliation and Arbitra- tion of 14th June 1921. wherein the Amalgamated Society of Engineers was the claimant and the company (among others) was a respondent, committed a breach of such award by failing to pay to Arthur Stephen McNamara, an employee in its employ, the sum of £20 11s. 8d. for wages earned by him between 30th May 1921

29 CLR 593

and 10th September 1921, such non-payment being contrary to H. C. OF the award. A complaint by McNamara to recover the same sum from the company, as being money in respect of which the company was indebted to McNamara for the balance of wages payable in respect of the same period, was heard at the same time.

McNamara was, on 8th August 1916, apprenticed to the company for a period of five years in the trade of a fitter, by articles of appren- ticeship which expired on 10th September 1921. By an award of the Court of Industrial Arbitration of New South Wales of 4th December 1919 as varied by an order of that Court of 22nd October 1920 (which applied to McNamara) the minimum rate of wages payable to apprentices during the fifth vear of their service was fixed at 47s. 6d. per week, and during the period 30th May 1921 to 10th September 1921 McNamara was paid at that rate. By an award of the Commonwealth Court of Conciliation and Arbitration, made in a dispute in which the Amalgamated Society of Engineers was claimant and which award was binding on the company, which was one of the respondents, it was provided by clause 2 as follows (so far as is material): (a) Except as provided in sub-clause (g) the minimum rates of wages to be paid by any respondent to apprentices shall be as follows :-

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of a Stipendiary Magistrate of New South Wales. The appellant, John Heine & Son Limited, was alleged to have breached a Federal award by failing to pay an employee, Arthur Stephen McNamara, the correct wages for work performed between May and September 1921. McNamara had been apprenticed as a fitter for five years, with his apprenticeship expiring in September 1921. The dispute centred on the minimum wage payable to McNamara during the final period of his apprenticeship, which was governed by both a State award and a Federal award.

The central legal issue before the High Court was the interpretation of clause 2 of the Federal award, specifically the interplay between sub-clause (a) and sub-clause (g). Sub-clause (a) set out the minimum wage rates for apprentices, while sub-clause (g) contained a proviso for certain employees who, if they met specific conditions, were to be deemed apprentices. Crucially, sub-clause (g) stipulated that the minimum rate payable to such employees "shall not be less than the minimum rate prescribed by or under the appropriate State law." The Magistrate had found that the Federal award prescribed a higher minimum wage than the State award for McNamara's final year of apprenticeship, and that the company had breached the Federal award by paying only the State rate.

The High Court, in dismissing the appeal, held that the Magistrate's decision was correct. The Court found the language of sub-clauses (a) and (g) to be unambiguous. Sub-clause (a) established general minimum rates for apprentices, with an explicit exception for the provisions of sub-clause (g). When read together, the effect was that the minimum rate payable to apprentices covered by sub-clause (g) was to be no less than the rate prescribed by the relevant State law. The Court rejected the argument that this provision was useless, noting that it ensured the obligation to pay the State minimum rate was enforceable under the Federal award, allowing for a prosecution for its contravention. Therefore, where the State law prescribed a higher minimum rate than the Federal award, the employee was entitled to that higher rate.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established