Pearce v WD Peacock & Co Ltd

23 C.L.R.]

100

OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

PEARCE .

A p p e l l a n t

;

I n fo r m a n t ,

AND

W.D. PEACOCK & COMPANY LIMITED

R e s p o n d e n t .

D e f e n d a n t ,

ON APPEAL PROM A COURT OP PETTY SESSIONS

OF TASMANIA.

Industrial Arbitration—Employer and employee—Dismissal of employee by reason H. C. o f A.

of membership of organization—Omis of proof— Evidence— Information— Who

1917.

may institute proceedings—Commonwealth Conciliation and Arbitration Act

1004-1915 {No, 13 of 1904—Yo. 35 of 1915), sec. 9—Crme5 Act 1914 {No. 12 M e l b o u r n e ,

of 1914), sec. 13.

June II, 18.

A prosecution of an employer for the offence under see. 9 of the Common- Barton a .C.J.

Isaacs,

wealth Conciliation and Arbitration Act 1904-1915 of dismissing an employee

Higerins,

Qavaii Duffy

by reason of the circumstance that he is a member of an organization regis­

and Rich J J .

tered under that Act may be instituted by any person.

The respondent company was charged on information with having dis­ missed an employee by reason of the circumstance that he was a member of an organization. The magistrate in dismissing the information stated that by the Commonwealth Conciliation and Arbitration Act the onus was cast on the defendant to prove that it was not actuated by the reason alleged, that L. (who was a director of the defendant company) had sworn that he <lismisscd the employee because the latter was dissatisfied, and that he (the magistrate) had no reason to doubt L.’s testimony.

Held, by Barton A.C.J. and Oavan Duffy and Rich JJ. {Isaacs and Higgins JJ. dissenting), that the finding of the magistrate should be construed as a finding that the defendant was not actuated by the reason alleged in the charge, within sec. 9 (4) of the A ct; that there ŵ as evidence to support such finding, and that there was no ground for disturbing it.

200 HIGH COURT

[1917.

H.

C. OF A. Appeal from a Court of Petty Sessions of Tasmania. 1917.

At the Police Court, Hobart, on 21st February 1917, an informa­

P e a k c btion was heard whereby Alfred John Pearce, the General Secretary

V.

W. D.

of the Federated Engine-Drivers’ and Firemen’s Association, an

P ea c o c k

& Co. L t d .organization registered under the Commonioealth Conciliation and

Arbitration Act, charged that W. D. Peacock & Co. Ltd. did on 21st December 1916 dismiss from its employment one Edward Jabez Batchelor by reason of the circumstance that he was a member of that organization.

After hearing evidence for the informant and the defendant, the Police Magistrate dismissed the information, and, in doing so, said : “ The defendant in this case is charged with having dismissed an employee, Edward Jabez Batchelor, by reason of…