Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466

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  • The Forty-Four Hours Week Act 1925 (NSW) provided that workers under a Commonwealth award which stipulated a working week longer than 44 hours should be paid their full wages if they had worked for 44 hours.
  • Cowburn was a person who worked longer than 44 hours.  Cowburn worked for the Commonwealth.
  • The Commonwealth award stated that if a worker worked less than 48 hours, they would have their pay deducted for non-attendance.
  • Clyde Engineering Co Ltd deducted an amount from Cowburn for only working a 44 hour week. Cowburn challenged this.  The resulting proceedings ended up in the High Court.


  • Was the State statute inconsistent with the Commonwealth statute, as per section 109 of the Constitution?


  • The High Court held that the NSW statute was  inconsistent with the Commonwealth award under section 109 of the Constitution.
  • Knox CJ and Gavan Duffy J held that where one statute confers a right, and the other takes away the right, even if the right may be waived or abandoned, there is an inconsistency; the State law is then invalid to the extent of the inconsistency.

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