JOHN HEINE &SON LIMITED Industrial Arbitration-Award-Interpretation-Employees on weekly wages
Deduction of payment for day on which employee cannot be usefully employed Breach of tward-Commonwealth Conciliation and Arbitration Act 1904-1921 (No. 13 of 1904-No. 29 of 1921), sec. 38 (o).
By an award of the Commonwealth Court of Conciliation and Arbitration it was provided that employment could only be terminated by a week's notice on either side, but that this should not affect 'the right of the management
to deduct payment for any day the employee cannot be usefully employed because of any strike by the union or any other union or through and Starke JJ. any breakdown of machinery or any stoppage of work by any such cause which the employer cannot reasonably prevent."
Held, that a stoppage of work on a public holiday because the employer was unwilling to pay to certain of his employees double pay, to which they would have been entitled if they had worked on that day, and it would have been uneconomic to employ those of his employees who were bound by the award in the absence of the former employees, was not a "stoppage of work by any such cause which the employer cannot reasonably prevent."
APPEAL from a Deputy Stipendiary Magistrate of New South Wales.
An information was on 20th December 1923 heard by a Deputy Stipendiary Magistrate for the Metropolitan Police District of New South Wales, whereby Harry Pickard alleged that John Heine &Son Ltd. on 25th April 1923, being then bound by the provisions of an award of the Commonwealth Court of Conciliation and Arbitration, No. 113 of 1920, made in a matter in which the Amalgamated Engineering Union (Australian Section), then the Amalgamated Society of Engineers, was claimant and the Adelaide Steamship Co. and others, including the defendant, were respondents, did commit a breach or non-observance of the award, in that, William James Lees being then in the employment of the defendant and having been in such employment for more than fourteen days and not being a casual worker, the defendant did not pay to Lees the wages due to him for 25th April 1923, namely, nineteen shillings and twopence, contrary to the provisions of the Commonwealth Conciliation and Arbitration Act and the award.
By the award in question a minimum weekly rate of wages was prescribed. Clause 12 (h) of the award was as follows :- "Employment to be terminated only by a week's notice on either side, and such notice may be given at any time during any week. This shall not affect the right of the management to dismiss any employee without notice for malingering, inefficiency, neglect of duty or misconduct, and in such cases wages shall be paid up to the time of dismissal only, or to deduct payment for any day the employee cannot be usefully employed because of any strike by the Union or any other union or through any breakdown of machinery…
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
Pickard v John Heine & Son Ltd [1924] HCA 38
Case
[1924] HCA 38
Decision Date
CaseChat Overview and Summary
The appellant, Harry Pickard, appealed to the High Court of Australia from a decision of a Deputy Stipendiary Magistrate who had dismissed an information alleging that the respondent, John Heine & Son Ltd., had breached an award of the Commonwealth Court of Conciliation and Arbitration. The breach alleged was the failure to pay wages to an employee, William James Lees, for a public holiday, 25th April 1923. The respondent contended that it was entitled to deduct payment for that day under a specific clause in the award, which allowed for deductions if an employee could not be usefully employed due to certain causes.
The central legal issue before the High Court was the interpretation of clause 12(h) of the award. This clause permitted an employer to deduct payment for a day on which an employee could not be usefully employed due to a strike, a breakdown of machinery, or "any stoppage of work by any such cause which the employer cannot reasonably prevent." The court was required to determine whether the circumstances of the stoppage on 25th April 1923, which arose from the employer's unwillingness to pay double holiday pay to other workmen, fell within the scope of this exception. The court also considered the effect of a prior interpretation of the clause by the President of the Commonwealth Court of Conciliation and Arbitration.
The High Court, comprising Isaacs A.C.J., Gavan Duffy J., and Starke J., allowed the appeal. The majority reasoned that the phrase "any such cause" in clause 12(h) referred to causes similar in nature to a strike or a breakdown of machinery, implying a direct impediment to the operation of the machinery or the workforce. They found that the stoppage on 25th April 1923, caused by the employer's decision not to pay holiday rates to other employees, was a consequence of the employer's own volition and economic considerations, rather than an external cause that could not reasonably be prevented. The court also determined that the prior interpretation by the President of the Arbitration Court, while informative, did not bind the respondent in this specific instance in a way that would alter the outcome.
Consequently, the High Court held that the respondent had breached the award by failing to pay Mr. Lees his wages for 25th April 1923. The appeal was allowed, and a penalty was imposed.