Clarke v Kerr [1955] HCA 55

Clarke v Kerr [1955] HCA 55

There is no inconsistency between s. 105a(1) of the Factories and Shops Act 1912-1954 (N.S.W.) and the Metal Trades Award for the purposes of s. 109 of the Constitution, as the federal award deals with working hours, not trading hours; the trading hours fixed by State law remain valid and operative.

Parties
Informant: Frederick Ernest Clarke; Defendant: Victor Kerr; Applicant for Removal: Attorney-General for the State of New South Wales; Employer (not a Party to the Proceedings But Appears in Evidence): T. Leek
Jurisdiction
Australia
Judgment Date
21 October 1955
Procedural Posture
Prosecution (criminal/summary, Statutory Offence) / Special Case (question of Law Removed to High Court Under S. 40 Judiciary Act From Chief Industrial Magistrate's Court)
Outcome
Declaration made that the defendant was required to observe s. 105a of the Factories and Shops Act 1912-1954 (N.S.W.), question answered accordingly, and cause to be remitted to the Chief Industrial Magistrate's court.
Legal Topics
Inconsistency Under S. 109 (constitution), State Vs Federal Awards, Trading Hours Regulation, Industrial Arbitration
Constitutional Law Industrial Law Statutory Interpretation Inconsistency Under S. 109 (constitution) State Vs Federal Awards Trading Hours Regulation Industrial Arbitration

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Parties

Frederick Ernest Clarke

Informant

Victor Kerr

Defendant

Attorney-General for the State of New South Wales

Applicant for Removal

T. Leek

Employer (not a Party to the Proceedings But Appears in Evidence)

Procedural Posture

Prosecution (criminal/summary, Statutory Offence) / Special Case (question of Law Removed to High Court Under S. 40 Judiciary Act From Chief Industrial Magistrate's Court)

Legal Issues

  1. 1 Whether s. 105a of the Factories and Shops Act 1912-1954 (N.S.W.) is inconsistent with the Metal Trades Award made under the Conciliation and Arbitration Act 1904-1952 (Cth.), by operation of s. 109 of the Constitution, so as to be invalid or inoperative with respect to the defendant
  2. 2 Whether setting trading (shop opening/closing) hours by State law conflicts with federal industrial awards regulating working hours

Ratio Decidendi

There is no inconsistency between s. 105a(1) of the Factories and Shops Act 1912-1954 (N.S.W.) and the Metal Trades Award for the purposes of s. 109 of the Constitution, as the federal award deals with working hours, not trading hours; the trading hours fixed by State law remain valid and operative.

Court Disposition

Declaration made that the defendant was required to observe s. 105a of the Factories and Shops Act 1912-1954 (N.S.W.), question answered accordingly, and cause to be remitted to the Chief Industrial Magistrate's court.

Orders

  • It should be declared that the defendant was upon the date of the offence alleged bound to observe s. 105a of the Factories and Shops Act 1912-1954 with respect to the shop for the sale of motor spirit, motor oil and accessories known as Sydney Service Station. Cause remitted to the Chief Industrial Magistrate's court.