Meek v Minister for Water Supply Sewerage and Drainage

[1961] HCA 37

HIGH COURT OF AUSTRALIA

Dixon C.J., Fullagar and Kitto JJ.

MEEK v. MINISTER FOR WATER SUPPLY, SEWERAGE AND DRAINAGE

(1961) 105 CLR 172

15 June 1961

Industrial Law (W.A.)

Industrial Law (W.A.)—Breach of award—Notice of dismissal—Whether equivalent to lock-out—Validity of notice—Meaning of "lock-out"—Industrial Arbitration Act, 1912-1952 (W.A.), ss. 6, 132.

Decisions

June 15.
The judgment of the COURT was delivered by DIXON C.J.: -
In this rather unfortunate piece of litigation the applicant desires to appeal to this court, in circumstances which require him to seek special leave, in an action which in substance is framed as one for wrongful dismissal. (at p174)

2. He was employed under an award, or an agreement which has been converted into an award, which provides what his contract of service shall be. It provides that the contract of service shall be by the day and shall be terminable by one day's notice on either side except in the case of a casual worker where one hour's notice shall suffice. (at p175)

3. Under that award he is entitled to annual leave. The provision relating to annual leave says that except as provided elsewhere in the award a period of two consecutive weeks' leave with payment of ordinary wages as prescribed shall be allowed annually to a worker by his employer after a period of 12 months' continuous service with such employer. (at p175)

4. The plaintiff took a stand on the interpretation of the clause relating to annual leave, a stand which was not agreed in by the respondent, the Minister for Water Supply, Sewerage and Drainage. I do not go into the contention on the plaintiff's part: it is not important to do so. It is enough to say that he desired to take his annual leave in accumulated form on dates determined by himself. (at p175)

5. As a result of the controversy it was decided that his services should be terminated, and notice was given pursuant to the clause which I first read. It conformed with the clause, and unless there was some answer to it his services were lawfully terminated. (at p175)

6. The answer which is given now is that that notice was an unlawful notice because it was intended to force him to accept the interpretation which the Minister adopted of the clause relating to annual leave as a condition of employment. The argument that that was the purpose of the notice involves an issue of fact. But it is unnecessary to say more about that question. It can simply be passed by. Section 132 of the Industrial Arbitration Act, 1912- 1952 (W.A.) says that a person who takes part in a lock-out or strike commits an offence against the Act. The contention is that on the hypothesis stated the giving of the notice was equivalent to a lock-out. The contention, as I said, will be dealt with by us entirely on the hypothesis that the plaintiff might support his contention as to the purpose of the notice without any suggestion that that hypothesis is well founded. But whether the notice could amount to a lock-out depends upon the definition of "lockout", and when one comes to read that definition in s. 6, it appears from the words "any number of his workers" that it is not a lock-out to suspend or dismiss a particular employee. Some plurality of workers is necessary, and that condition not being satisfied the contention fails at its base. (at p175)

7. It is an ingenious contention that the notice itself could be unlawful and therefore could not operate. It is not necessary to pursue the contention beyond saying that it has no basis under the Act. The whole case for the plaintiff depends upon that. (at p176)

8. In the argument long service leave was mentioned but as I see the case, the plaintiff's contention as to long service leave has no bearing upon the matter which we are invited to consider. In any case it is said to be conceded. (at p176)

9. For these reasons I am of opinion that special leave ought to be refused and the application dismissed. (at p176)

FULLAGAR J. I agree. (at p176)

KITTO J. I agree. (at p176)

Orders

Special leave to appeal refused.