R v Galvin; Ex parte Metal Trades Employers' Association [1949] HCA 12

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H. C. oF A.

1949, Ww

Sypney, Mar. 30, 31; April 1, 27.

Latham C.J., Dixon, McTiernan, Williams and Webb JJ.

HIGH COURT (1949.

[HIGH COURT OF AUSTRALIA] THE KING

AGAINST.

GALVIN AND ANOTHER ;

Ex parte METAL TRADES EMPLOYERS' SOCIATION

AND OTHERS.

Industrial Law (Cth.)—Standard hours of work—Alteration—Statutory power denied to conciliation commissioners—Award—Variation—A pplication to include daily tea-break — Jurisdiction of conciliation commissioner — " Industry" — " Standard *—Commonwealth Conciliation and Arbitration Act 1904-1947 (No. 13 of 1904—No. 10 of 1947), ss. 4, 13, 16, 25.

Section 13 of the Commonwealth Conciliation and Arbitration Act 1904-1947 provides: 'A conciliation commissioner shall not be empowered to make an order or award altering :—(a) the standard hours of work in an industry,

Held that in the case of an award that prescribes a general rule as to hours

of work in each day, the insertion of a new provision allowing a tea-break of fifteen minutes two hours after the usual starting time is an alteration of

standard hours.

OrpeR Nist FoR PROHIBITION.

On 21st March 1940 an award binding upon the Federated Ship Painters' and Dockers' Union, The Metal Trades Employers' Association, the Commonwealth Steamship Owners' Association, Burns, Philp & Co. Ltd. and others, was made by Judge Beeby, Chief Judge of the Commonwealth Court of Conciliation and Arbitration. The award, so far as material to this report, provided by clause 4 that the ordinary weekly working hours should be forty-four, to be worked in a five or five and one-half day week to suit the con- venience of the employer, and " daily working hours '' were pre- scribed in respect of New South Wales, Victoria, South Australia

77 C.L.R.] OF AUSTRALIA.

and Queensland. Clause 5 related to meal hours and provided that in all ports the time for breakfast should be the hour preceding the usual starting time, and that the breakfast-break should not be taken " when men were required to commence work at 7 a.m. or after, and preceding the usual starting time". Dinner-time in New South Wales, Victoria and Queensland commenced at twelve noon, and in South Australia at 12.5 p.m., and lasted for an hour, fifty- five minutes and forty-five minutes in different places. In all ports an hour was allowed for tea commencing at 5 p.m. or 5.15 p.m., and also for supper between 11 p.m. and 1 a.m. Double pay was required to be paid for work during meal hours. Clause 6 provided (a) that when practicable accommodation should be provided for men to change their clothing, five minutes should be allowed for men to clean their hands at each break, and suitable material provided for the purpose; and (6) that men engaged in cleaning out oil tanks or bilges, when the work was of an exceptionally dirty nature, should be allowed a reasonable time to cleanse them- selyes and should be provided with hot water for that purpose. Clause 13 provided, inter alia, that men should present themselves for engagement at least ten minutes before the usual starting time, and, by clause 14, it was provided that employees should not be entitled to travelling time from the place of engagement to the usual place of work, but where men were required by the employer to travel they should be paid for actual travelling time at the rate fixed for the class of work at which they were engaged. All fares incurred were to be paid by the employer ; and (c) inside a specified area at Melbourne, travelling time should be allowed and fares were payable by the employees, but outside that area travelling time of specified duration should be allowed to specified places and fares were payable by the employer.