NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80

H. C. oF A.

1955. an

CLARKE Vv Kerr.

HIGH COURT [1955.

sub-s. (2) of s. 1054 has not yet operated to bring about a change in the trading hours fixed by sub-s. (1), and it is for failure to observe the trading hours fixed by sub-s. (1) that the information has been laid.

I would hold that s. 105a (1) is valid.

Kirro J. It is clear that there is nothing in the point taken by the defendant and brought here for decision. As a mere matter of construction, the overtime provisions of the award are plainly not directed to the lawfulness of the things which an employer may direct his employee to do in the course of working overtime. They relate only to the right of the employer to have his employee on the job outside ordinary working hours, and the correlative obligation of the employee. Presumably no one would support the broad proposition that because of those provisions an employer who wants something done which would be within the scope of the employment if it were lawful but is unlawful in the sense that the general law of the land forbids it to employees and non-employees alike, need only require his employee to do it by way of overtime and it will become by virtue of his command a lawful thing for the employee to do. Yet the defendant's contention really comes to that in theend. It should be denied and the case sent back to the magistrate.

As to the part of this cause removed pursuant to s. 40 of the Judiciary Act 1903-1950 by the order of this Court dated 18th April 1955 being the question set out in such order, declare that the provisions of the Federal Metal Trades Award therein mentioned did not absolve the defendant on 10th January 1955 from observing s. 1054 of the Factories and Shops Act 1912-1954 of New South Wales with respect to the shop for the sale of motor spirit, motor oil and motor accessories known as Sydney Service Station and situated at No. 9 Flinders Street, Darlinghurst. Remit the information to the Chief Industrial Magistrate to be dealt with consistently with the foregoing declaration and according to law. Order that the defendant do pay the costs of the proceedings in this Court.