Chalmers v Commonwealth
17 CLR 19(Judgment by: Dixon J)
Chalmers
vCommonwealth
Judges:
Latham CJ
Rich J
Starke J
Dixon JMcTiernan 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:
Dixon J
The proviso to s 6 (1) of the Income Tax (War-time Arrangements) Act 1942 qualifies the power given by the principal clause of the sub-section to prescribe the terms and conditions of the employment of officers transferred under the Act from the State to the Commonwealth service. The material part of the qualification requires that the rate of remuneration of a transferred officer shall not be less favourable than that to which he would be entitled if he had been transferred at the rate of remuneration to which he was entitled immediately prior to his transfer.
Certain officers of the New South Wales service, of which the plaintiff is one, were at the date of their transfer entitled to an annual salary and to payments for work done outside usual office hours at overtime rates reckoned by a formula in which the daily equivalent of the annual salary and the time worked formed factors. In the State service which they left, all Saturday work was outside usual office hours, while at the time in the Federal service to which they were transferred there were on Saturday mornings certain usual office hours.
The question for decision is whether for time worked on Saturday within the usual office hours of the Commonwealth service, these officers were entitled under the proviso to be paid overtime at the rate calculated according to the formula applicable to them whilst in the State service.
It is a question which, in my opinion, depends upon the interpretation of the proviso in s 6 (1). What needs interpretation is the expression "rate of remuneration ... to which he would be entitled" and the expression "rate of remuneration to which he was entitled immediately prior to his transfer." The question as I see it is whether these expressions apply to extra pay for work defined as overtime by the conditions of employment by the State, independently of what is defined as overtime by the conditions of employment by the Commonwealth, and mean that for such work the Commonwealth shall remunerate the officer by such extra pay. In my opinion that is not the meaning of the expressions. The operation of the proviso is to place a qualification upon the generality of the principal clause, and accordingly the proviso should not be read more widely than the natural sense of its words requires. The plain object of the principal clause of the sub-section is that, except for pension, payment or other benefit on retirement or death, the Commonwealth Executive may prescribe all the terms and conditions of employment and not be bound by the conditions prevailing in State services. Hours of work form a prominent example of the conditions of employment. The qualification contained in the proviso is, on its face, directed to remuneration, and its purpose clearly enough is to ensure that the change from one service to the other shall not reduce the rate at which the officer is paid in his employment. It would enlarge the operation of the proviso beyond its purpose if the expressions in question were interpreted as meaning that no change from the State hours of work could be required except on condition of paying overtime for so much of the Federal hours as did not fall within the State hours. Even if the word "remuneration" covers the rates payable for whatever is overtime in the Federal service, it ought not, in my opinion, to be understood as fixing by implication the period of the day, the days or the amount of time which constitutes ordinary work for the purpose of defining work for which overtime rates are payable.
That is a matter governed by the principal clause in the sub-section, and the proviso does not control or affect it.
The form of the questions in the case stated appears to suggest that the parties assume that nothing in reg 14 (1) (q) of the Income Tax (Wartime Arrangements) Regulations operates to make the overtime rates fixed by the Crown Employees (Clerical) award inapplicable to whatever work is overtime work, if those rates are the more favourable, and I should be content to accept that assumption.
But there was no discussion before us of the question whether the rates payable for whatever is overtime work according to the usual hours of the Commonwealth service must be not less favourable than those fixed by the Crown Employees (Clerical) award. It is better, therefore, to frame our answers to Question (ii) so as not to affect that matter even by implication.
I think that the questions should be answered as follows: -- (i) (a) No , (b) Yes. (ii) The plaintiff is entitled to be paid by the defendant for overtime , (a) for all work done by him before 8.30 am or after 5 pm on any day Monday to Friday in any week , (c) for all work done by him on any Sunday or public holiday , (b) but not for work done by him on any Saturday within the usual hours of work of the Commonwealth service. (iii) No. This means that judgment should be entered for the defendant.