NEW SOUTH WALES. Industrial Arbitration-Obligati imposed by Statute-Mode of enforcement-Rate
of wages fixed by award-Recovery of difference between wages paid and those payable under award-Jurisdiction of Supreme Court-Industrial Arbitration Act 1912 (N.S. (No. 17 of 1912), secs. 49, 55, 58.
Sec. 49 of the Industrial Arbitration Act 1912 provides that (1) Where an employer employs any person to do any work for which the price or rate has
been fixed by an award" (of the Court of Industrial Arbitration) " shall be liable to pay in full in money to such person and without any deduction the price or rate so fixed. (2) Such person may, within six months after such money has become due, apply in the manner prescribed to the registrar or to an industrial magistrate for an order directing the employer to pay the full amount of any balance due in respect of such price or rate. Such order may be so made notwithstanding any smaller payment or any express or implied agreement to the contrary. The registrar or magistrate may make any order he thinks just, and may award costs to either party, and assess the amount of such costs. (3) Such person may, within the said period of six months, in lieu of applying for an order under the last preceding sub- section, sue for any balance due as aforesaid in any District Court or Court of Petty Sessions Provided that any person feeling himself aggrieved by a judgment or order of such Court given or made under this sub-section may appeal therefrom to the Court of Industrial Arbitration as prescribed."
By sec. 55 an exclusive appeal from an order of the registrar or of an industrial or other magistrate or justices made under the Act lies to the
By sec. 58 the decisions of that Court are made final and subject to no appeal.
Held, that the mode specified in sec. 49 of enforcing the obligation imposed upon an employer by that section is exclusive; and, therefore, that an action by an employee to recover from an employer the difference between the wages actually paid in accordance with their agreement and those payable under award will not lie in the Supreme Court.
Ex parte Brandt, 12 S.R. (N.S.W.), 105, discussed. Decision of the Supreme Court of New South Wales: Walker v. Josephson, 13 S.R. (N.S.W.), 550, reversed.
APPEAL from the Supreme Court of New South Wales.
An action was brought in the Supreme Court by James Walker against Sydney Arthur Josephson, in which by the declaration it was alleged that the plaintiff sued the defendant for that the defendant employed the plaintiff to do the work of a journeyman plumber in a certain district and the said employ- ment continued for a long time and thereby a certain rate of wages became due and payable by the defendant to the plaintiff in respect of the said employment by…
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.
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AGLC
Josephson v Walker [1914] HCA 68
Case
[1914] HCA 68
Decision Date
CaseChat Overview and Summary
The case of Josephson v Walker concerned an appeal from the Supreme Court of New South Wales to the High Court of Australia. The dispute arose when an employee, James Walker, sued his employer, Sydney Arthur Josephson, in the Supreme Court for a balance of wages allegedly owed under an industrial award. Josephson demurred to the declaration, arguing that the Supreme Court lacked jurisdiction to hear the claim. The Supreme Court had previously ruled in favour of Walker, finding itself bound by an earlier decision.
The central legal issue before the High Court was whether the statutory mechanism provided for the recovery of wages fixed by an award was exclusive, thereby precluding an action in the Supreme Court. Specifically, the Court had to determine if section 49 of the Industrial Arbitration Act 1912 (NSW) prescribed the sole method for enforcing such wage obligations, or if an employee could still pursue a common law action in the Supreme Court for the recovery of underpaid wages.
The High Court held that the mode of enforcement specified in section 49 of the Industrial Arbitration Act 1912 was exclusive. The Court reasoned that where a statute creates a new obligation and provides a specific method for its enforcement, that method is generally the only one available. Section 49 outlined a process involving application to the registrar or an industrial magistrate, or suing in a District Court or Court of Petty Sessions, with specific appeal routes to the Court of Industrial Arbitration. The Court found that this comprehensive scheme, including limitations on time for claims and a specialised appellate process, indicated a legislative intention for these prescribed remedies to be exhaustive. The Court distinguished the present case from previous decisions where the statutory remedies were considered illusory or insufficient, finding the remedies under the 1912 Act to be ample and complete.
Consequently, the High Court allowed the appeal, discharged the judgment of the Supreme Court, and entered judgment for the defendant, Josephson. This meant that Walker's action in the Supreme Court was dismissed due to lack of jurisdiction.