Collins v Charles Marshall Pty Ltd [1955] HCA 44

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ. Collins v Charles Marshall Pty Ltd [1955] HCA 44

ORDER Appeal allowed with costs. Discharge the order of the stipendiary magistrate constituting the Metropolitan Industrial Court of the State of Victoria whereby the information was dismissed. Remit the information for rehearing. Costs of the former hearing to be dealt with by the magistrate disposing of the information.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 11 Dixon C.J., McTiernan, Williams, Webb, Fullagar and Kitto JJ.

This is an appeal by special leave from an order of a stipendiary magistrate constituting the Metropolitan Industrial Court of the State of Victoria. The order dismissed an information by the appellant against the respondent charging the latter with a breach of the provisions of the Factories and Shops (Long Service Leave) Act 1953 (No. 5706) Vict.. It is an offence under s. 17 (1) (d) of that Act to contravene or fail to comply with any provision of the Act. Under s. 7 (1) and (2) (c) (i) a worker who has completed at least ten years but less than twenty years continuous employment with his employer and whose employment is terminated by his employer for any cause other than serious and wilful misconduct is entitled to long service leave on ordinary pay for a period equivalent to one-eightieth part of the period of his continuous employment. In consequence of s. 9 (2) and (4) he is deemed to take his leave when his employment terminates and must be paid his ordinary pay by his employer, either in full then and there or at the same times as it would have been paid if he were still on duty or in some other way agreed between them. The charge against the respondent company was that, having been the employer of a worker named Kemp for a period of some thirteen years ending on 12th February 1954, it failed to grant him the amount of long service leave to which he was entitled, in contravention of the Act. In fact the defendant company terminated Kemp's employment on 12th February 1954. Among the grounds upon which the respondent company relied by way of defence to this charge was the contention that the employment was regulated completely by an award made by a conciliation commissioner in pursuance of the Conciliation and Arbitration Act 1904-1952 Cth. with which the operation of the Victorian Act was incompatible so that as a result of s. 109 of the Constitution the material provisions of the Victorian Act were pro tanto invalid. The magistrate accepted this view and dismissed the information.