Kilminster v Sun Newspapers Ltd

46 CLR 284
1931 - 1123A - HCA

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(Judgment by: Gavan Duffy CJ, Starke J, Dixon J, McTiernan J)

Kilminster
v Sun Newspapers Ltd

Court:

Judges:
Gavan Duffy CJ
Starke J
Dixon J
McTiernan J

Subject References:
Employment
Termination of Employment
Contract of Services
Notice
Contractual rights

Judgment date: 23 November 1931;

SYDNEY

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Judgment by:
Gavan Duffy CJ
Starke J
Dixon J
McTiernan J

Delivered the following judgment:

We are all of opinion that the provisions of clause 22 of the award merely mean that the employment shall not be put an end to unless notice as therein prescribed shall be given, and they do not interfere with the rights of the parties with respect to longer notice by contract or otherwise. The judgment of the Full Court must, therefore, be reversed and the appeal allowed. The plaintiff is entitled to judgment on both demurrers, and the defendant's demurrers are overruled. The defendant must pay the costs of these proceedings and in the Court below.

Watt KC (With him Windeyer), for the appellant. The question for determination is: What is the effect of an award upon an existing contract under which the employee is entitled to greater benefits as to general conditions than under the award, and receives a higher wage than the minimum wage prescribed by the award? The condition fixed in the award as to sufficiency of notice might be appropriate to a maximum weekly wage, but is totally inappropriate to the contractual condition in which the term of service is yearly, and the salary higher than that prescribed by the award. An award does not in toto supersede a contract. The most an award can do is to give rights to the employer or employee to reshape his contract in terms of the award. The award does not make the contract: it only prescribes the law in relation to which the contract is made. The award does not have the effect of cutting down the more beneficial provision of the contract to the minimum conditions prescribed by the award. Wages are payable under the award on a weekly basis, and the period of the notice as prescribed by the award was determined upon that basis. Considering that the appellant was specially engaged in Canada on a yearly basis, and at a rate of wage considerably in excess of the wage prescribed by the award, the period of notice mentioned in the award is neither applicable nor reasonable. The effect of an award is to make a law on the basis of which future contracts may be made; it has no effect upon contracts already in existence. The appellant's rights depend upon the contract and not upon the award. This is not a case of super-session; the appellant is entitled to all the benefits of the award (Federated Seamen's Union of Australasia v. Commonwealth Steamship Owners' Association [ 30 CLR 144 ]). Under the contract the appellant was entitled to reasonable notice; the only effect the award had on this provision was that he should get two months' notice as a minimum. In the circumstances of this case the appellant is entitled to more than the minimum prescribed by the award.

E.M. Mitchell KC (with him Cook), for the respondent. Clause 22 of the award should be construed as prescribing proper and adequate notice, that is, sufficient notice. An award is the settlement of a dispute, and, as the award in this case was made after the contract, there was, after such a contract, a dispute in the industry in respect of all matters adjudicated upon including ( inter alia ) wages and termination of employment. By becoming a party to the dispute the appellant showed that he was dissatisfied with the terms and conditions of the contract , which upon the points in dispute, must be regarded as having been superseded by the award. Under clause 25 of the award the appellant could have applied for exemption from the operation of the award; no such application has been made by him. Where existing conditions were to be preserved the award makes express provision to that end. Clause 22, which deals in detail with mutual notice as to termination of employment, must be regarded as fixing what is reasonable and requisite.

[DIXON J. As applying to this case it means that at least two months' notice must be given.]

The award lays down maximum conditions as well as minimum conditions; minimum conditions are expressly stated to be such. The contract between the parties is silent as to what period of notice shall be given. Upon a proper construction of clause 22 as a whole, the two months' notice applicable in the case of the appellant is not fixed as being the minimum but being mutual notice reasonable between the parties; the clause establishes the mutual and reciprocal rights of the parties: it does not purport to say that at least two months' notice must be given. In the circumstances the award should be construed as if it were an agreement between the appellant and the respondent themselves, covering ( inter alia ) what period of notice they deem to be reasonable between them, the two months' notice prescribed by the award being the measure of the mutual notice which should be given between them and which they regarded as being sufficient.

Watt K.C. (with him Windeyer), for the appellant.

E. M. Mitchell K.C. (with him Cook), for the respondent.

Solicitors for the appellant, Marsland & Co

Solicitors for the respondent, Minter, Simpson & Co