Chalmers v Commonwealth
17 CLR 19(Judgment by: Rich J)
Chalmers
vCommonwealth
Judges:
Latham CJ
Rich JStarke J
Dixon J
McTiernan J
Williams J
Legislative References:
Judiciary Act 1903-1940 - s 18
Income Tax (War-time Arrangements) Act 1942 - The Act
Public Service Act 1902 - s 20(1)(d)
Case References:
South Australia v The Commonwealth - [1942] ALR 186
Wood v Wood - (1923) 93 LJ KB 538
Wilson v Chatterton - [1946] 1 KB 360
Judgment date: 14 October 1946
Judgment by:
Rich J
This case depends upon the force to be given to the words "the rate of remuneration to which he (that is the officer) was entitled immediately prior to his transfer." The words occur in the proviso to subs (1) of s 6 of the Income Tax (War-time Arrangements) Act 1942. The transferred officers' claim that the award for Saturday work performed by them in the Commonwealth service should be at overtime rates which, if it had been done in the State service, would have been payable under the State award. In the State service Saturday work is paid for at overtime rates. In the Commonwealth service, at the material time, Saturday morning work fell within usual office hours, and entitled the officer to no extra remuneration beyond his salary. It will be seen that the claim involves two propositions, viz, first, that the word "remuneration" includes overtime rates, and secondly, that what is overtime for the purpose of applying such rates is to be decided according to the regulations, awards and practices of the State service when the officer was transferred into the Commonwealth service. Whatever there may be to be said in favour of the first proposition, I am clearly of opinion that the second is not well founded.
It is necessary to remember that we are dealing with a proviso. Its meaning is, therefore, not to be enlarged by implications or unnecessarily wide readings of uncertain terms. The leading para in subs (1) is unequivocal in its intention of empowering the Commonwealth authorities to prescribe the terms of employment of the transferred officer. What are usual hours during which the officer must attend in order to earn his salary is a question conspicuously forming part of the terms and conditions of employment so to be prescribed. The purpose of the proviso is to preserve to the transferred officer his rate of pay. It should not be read as going beyond that and cutting down the power to prescribe usual office hours to be worked for the Saturday.
I therefore answer the questions as follows: -- (i) (a) No (b) Yes. (ii) (a) Yes , (b) No , (c) Yes. (iii) No. And I would direct judgment to be entered for the defendant.