R v Foster

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.