378

SHOP ASSISTANTS CASE.

1945, No. 50.

In the Matter of Conditions of Employment of Persons Employed as

SHOP ASSISTANTS.

For The Shop Assistants and Warehouse Employees’ Federation

of Australia, South Australian Branch (Applicant)—W. J. Burke
(agent).
For Chas. Birks & Co. Ltd. and Others (Respondents)—R. F. Ha<ll
(of counsel).

Application for award—Award made as to modification of incidents

of weekly contract of hiring; No jurisdiction as to matter of pro rata
payment in respect of annual leave and payment in lieu of annual
leave.
Section 17 (2) of the Industrial Code, 1920-1943, provides that the Court shall
have no jurisdiction over any industrial matter concerning any industry and as
to which* an industrial board has jurisdiction.
Where a board had jurisdiction to deal with the industrial matter of annual
leave for employees in an industry, held, that the Court had no jurisdiction over
the matters of payment in lieu of annual leave or pro rata payment in respect
of annual leave upon termination of employment, as such matters were part of
the industrial matter of annual leave.

The application came before the Court on the 22nd November, 1945.
On the same day His Honour Mr. President Morgan delivered the
following reasons for judgment:—
The Court will proceed to make forthwith its award in this matter,
which will bind the applicant Union and the employers for whom
Mr. Hall appeared. The locality of the award will be the metro­
politan area as defined in Part III. of the Industrial Code, 1920-1943.
It will come into operation on the 30th November next and will con­
tinue in operation for a period of twelve months therefrom. The
scope will be as in the application as now amended. The operative
clause of the award will be taken from the Plumbers award made on
the 27th August of this year with the alteration that the concluding
passage of sub-paragraph (3) commencing with the words “provided
that” will be left out.
As to the question of annual leave, my opinion on the material before
me is that the Court has no jurisdiction to make an award on the
subject claimed. The employees covered by this application are
subject to the jurisdiction of an Industrial Board known as Shop
Board No. 2. The current determination made by that Board contains
a provision covering annual leave. That provision was, it is admitted
at the Bar, inserted in the determination pursuant to the power of
the Board to make a determination relating to any established custom
or usage in the industry for which the Board is appointed (see section
 SHOP ASSISTANTS CASE. 379
167 of the Industrial Code and the definition of “industrial matters”
given in section 140), it being stated that there was an established
custom or usage of annual leave in this industry. If that be correct,
and in these proceedings I think I am bound to accept that it is
■correct, it appears to me that the Board has jurisdiction to deal with
the whole matter of annual leave which is one that cannot be divided
into water-tight compartments. The claim before the Court concerns
what is sometimes called pro rata annual leave which, in my opinion,
is a matter relating to the custom or usage of annual leave. Pro rata
leave seems to me to be a part of the subject-matter of annual leave,
and it appears that that question is within the jurisdiction of the
Industrial Board to which application should be made if it is so
desired. If the Board has such jurisdiction, the Court is, under the
provisions of the Code, deprived of power to deal with the matter on
an application to it to make an award ih its original jurisdiction (see
section 17 (2)). If such provision as may be made by the Board on
the subject is regarded as unsatisfactory, proceedings by way of appeal
to the Court can, of course, be instituted.

[The award made on the application dealt with the matter of the
modification of certain incidents of the weekly contract of hiring of
the employees concerned.]
(The award is published in the Government Gazette of the 29th
November, 1945, p. 805.)