Harvester case

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Harvester Judgment
Coat of Arms of Australia.svg
Court Commonwealth Court of Conciliation and Arbitration
Full case name Ex Parte H.V. McKay
Decided 8 November 1907
Citation(s) (1907) 2 CAR 1
Case history
Appealed to High Court of Australia
Subsequent action(s) R v Barger
Case opinions
Decision by H.B. Higgins

Ex parte H.V. McKay (1907) 2 CAR 1, well known as the Harvester case, is a landmark Australian labour law decision on a fair living wage for workers. The case had national ramifications and was of international significance.[1]

H.B. Higgins in the Commonwealth Court of Conciliation and Arbitration held that an employer was required by law to pay a decent, fair wage to his workers. Higgins had been appointed President of the newly created Commonwealth Court of Conciliation and Arbitration in 1907 and had been a Justice of the High Court of Australia since 1906.


Hugh Victor McKay, one of Australia's largest employers, owned the Sunshine Harvester Works where agricultural machinery was built. Under the Excise Tariff Act 1906, the Federal Australian government had required the payment of an excise tax from all employers who did not pay a wage that was "fair and reasonable", as defined by the government, or the Court of Conciliation and Arbitration. McKay was charged for the tax, given the payments he paid his workers.

The hearing took place in Melbourne on several days between 7 October 1907 to 8 November 1907. Higgins heard evidence from employees of McKay's factory and also their wives. Higgins gave his judgment on 8 November 1907.


Court of Conciliation and Arbitration[edit]

Higgins held that McKay was obliged to pay his employees a wages that met "the normal needs of an average employee, regarded as a human being in a civilised community", regardless of his capacity to pay. This gave rise to the legal requirement for a basic wage. In defining a 'fair and reasonable wage', Higgins (without explicit acknowledgement) employed Pope Leo XIII's Rerum novarum of 1891, an open letter to all the bishops that addressed the condition of the working classes.[2] Higgins ruled that remuneration "must be enough to support the wage earner in reasonable and frugal comfort." A 'fair and reasonable' minimum wage for unskilled workers of 7/- (7 shillings), which is around 70 cents, or 42/- per week. Later surveys showed that this minimum was adequate to provide subsistence.[3]

Higgins's judgment read as follows:[4]

Higgins also said the following.

McKay appealed to the High Court of Australia. The case name was changed to R v Barger.[5]

High Court[edit]

Main article: R v Barger

The High Court found Higgins's decision constitutionally invalid because the legislation was essentially concerned with the regulation of employment conditions, a power not held by the Commonwealth Parliament and not capable of being supported by the excise power.[6] The High Court further found a tax based on compliance with certain labour conditions which could differ from State to State was a discrimination within the meaning of section 51(ii) and a preference within the meaning of section 99.[7]


The judgment dominated Australian economic life for the next 60 to 80 years. Higgins's 1907 Harvester decision was regarded as a benchmark in Australian labour law. Despite the High Court's reversal in R v Barger, Higgins regarded the minimum wage as sacrosanct and applied the Harvester reasoning to subsequent judgments in career as president of the Conciliation and Arbitration Court.[8]

See also[edit]


  1. ^ Ford, Olwen (2001). Harvester Town: The making of Sunshine 1890-1925. Sunshine & District Historical Society Incorporated. ISBN 0-9595989-4-4. 
  2. ^ Kevin Blackburn, The living wage in Australia: a secularization of Catholic ethics on wages, 1891–1907, Journal of Religious History 20 (1996), 93-113.
  3. ^ Pat Thane (1982). Foundations of the Welfare State. Longman. p. 383. ISBN 0-58229515-7. 
  4. ^ Higgins, H. B. "Full Text of Ex Parte H.V. McKay Judgment" (PDF). Fair Work Commission of Australia. Retrieved 15 July 2015. 
  5. ^ R v Barger [1908] HCA 43; 6 CLR 41
  6. ^ Dr Andrew Frazer (28 May 2002). "The Federal Conciliation and Arbitration Power: from Cradle to the Grave?". Law Internet Resources. Parliament of Australia, Parliamentary Library. Retrieved 2009-08-28. 
  7. ^ Bernard Pulle (7 March 2000). "Dairy Industry Adjustment Bill 2000-Constitutional Issues (Current Issues Brief 14 1999-2000)". Law Internet Resources. Parliament of Australia, Parliamentary Library. Retrieved 2009-08-28. 
  8. ^ Gerard Henderson (18 December 2007). "Failed policy strong on sentiment". Sydney Morning Herald. Retrieved 2009-08-28. 


External links[edit]