R v Foster - [1944] HCA 22

FOSTER AND OTHERS Ex PARTE CROWN CRYSTAL GLASS COMPANY

PROPRIETARY LIMITED. Women's EmploymentJurisdiction of Women's Employment Board Work'

Actual operation of employee previously performed in AustraliaProduct of labour not previously produced-Women's Employment Act 1942 (No. 55 of 1942), Schedule, regs. 6 (1), (4)-(8)-S.R 1943 No. 75-1943 No. 251.

The word "work" in reg. 6 of the Women's Employment Regulations refers to the particular labour or operations performed by individual workers and not, in the case of a manufacturing process, to the whole process of producing the commodity manufactured. If the work performed by an employee is some mechanical or other operation that was done in Australia before the present war, such work is not " work

which immediately prior to the outbreak of the present war was not performed in Australia by any person" within the meaning of reg. 6 (1) (c) of the Women's Employment Regulations merely because the employee is performing that operation in order to manufac-

ORDER NISI for prohibition.

An application under reg. 7B of the Women's Employment Regula- tions was made on 2nd February 1944 by the Australian Glass Workers' Union to the Women's Employment Board constituted under those Regulations for a determination of the rates of payment and the hours and conditions to be observed in respect of female employees employed by Crown Crystal Glass Co. Pty. Ltd. on the work specified in the application.

It was alleged in the application that the company (a) had since 2nd March 1942 employed and continued to employ females on work which was usually performed by males, and (b) had employed

69 CLR 300

and was employing females on work which had been prior to that

employment of females, or was, performed by males in the establish- ment of the company.

The application, as amended at the hearing before the Board related to seven classes of work which were described in some detail. The classification of the work was made under the following headings (1) cutter (2) ampoule section; (3) tube-glass fabrication, phar- maceutical and scientific glass articles (4) testing hydrometers; (5) laboratory tube and ampoule examining and/or sorting; (6) pharmaceutical and scientific glass packers and (7) calibrating glass instruments, that is, testing laboratory glass, waxing and mark ing by machine, colouring and powdering, sorting.

The work was performed as part of the work of manufacturing scientific glassware. It was not disputed that scientific glassware was not manufactured in Australia before the commencement of the present war. But some of the work referred to in the application, e.g., the cutting of glass tubes, had been performed in Australia before the war, and some of the work had usually been done by females.

The contention of the union was that the work which the females in question were doing was the manufacture of scientific glassware and that the industry of manufacturing such products was a new industry in Australia. The company's contention was that the work consisted in the seven operations described under the…

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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Details

Case: [1944] HCA 22
Decision Date: 22 August 1944

CaseChat Overview and Summary

The case of *R v Foster and Others Ex Parte Crown Crystal Glass Company Proprietary Limited* concerned an application for an order nisi for a writ of prohibition. The Australian Glass Workers' Union had applied to the Women's Employment Board for a determination regarding the rates of payment, hours, and conditions for female employees at Crown Crystal Glass Co. Pty. Ltd. The union alleged that the company employed females on work usually performed by males, and on work previously performed by males within the company's establishment. The Board, however, proceeded on the basis that the work in question fell under regulation 6(1)(c) of the Women's Employment Regulations, which pertains to work not performed in Australia immediately prior to the outbreak of the war.

The central legal issue before the court was the interpretation of the term "work" within regulation 6(1) of the Women's Employment Regulations. Specifically, the court had to determine whether "work" referred to the particular industrial operations performed by individual employees or to the overall process of manufacturing a commodity. The company argued that the Board had erred in its interpretation by focusing on the finished product (scientific glassware, which was new to Australia) rather than the specific tasks undertaken by the female employees, some of which had been performed in Australia prior to the war.

The court reasoned that the Women's Employment Regulations, when read as a whole, indicated that "work" referred to the specific labour or operations performed by an employee. Provisions concerning safety, health, welfare, efficiency, and productivity comparisons between male and female workers necessitated an examination of the particular tasks performed. The Board's decision, which treated the manufacture of scientific glassware as a whole as "work" not previously performed in Australia, was therefore found to be based on a misinterpretation of the regulation. This misinterpretation led the Board to assume jurisdiction under regulation 6(1)(c) when the evidence suggested that some of the specific operations performed by the female employees had indeed been carried out in Australia before the war.

Consequently, the court held that the Women's Employment Board had acted without jurisdiction by applying an incorrect legal criterion to determine the scope of its authority. The order nisi for prohibition was made absolute, quashing the Board's decision. The court also noted a further defect in the Board's decision, namely its failure to sufficiently specify the work to which probation periods and rates of pay applied, particularly concerning undefined grades of work.

Orders