Chalmers v Commonwealth
17 CLR 19(Judgment by: Latham CJ)
Chalmers
vCommonwealth
Judges:
Latham CJRich J
Starke 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:
Latham CJ
This is a case stated under the Judiciary Act 1903-1940, s 18. The plaintiff is an officer of the public service of New South Wales who was temporarily transferred to the Commonwealth service under the Income Tax (War-time Arrangements) Act 1942. That Act provides, in s 6 that, except in relation to pensions and similar payments, "the terms and conditions of employment of every transferred officer shall during the period of transfer be as prescribed." Under the power conferred by this provision, the Governor-General has made regulations applying to transferred officers which , inter alia, apply to such officers the relevant laws, conditions and practices in force in the public service of the Commonwealth relating to attendance and hours of duty and payments therefor. Under the provisions which are so applied the usual office hours of the plaintiff were from 8.30 am to 5 pm, with a break of one hour for lunch on week days, and from 8.30 am to 11.30 am on Saturdays.
Section 6 (1) contains the following proviso: --
Provided that except where he is reduced in status in consequence of inefficiency or misconduct the rate of remuneration of a transferred officer shall be not 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 and in the case of an officer entitled to advance to a maximum rate of remuneration by periodical increments had continued to advance by those increments.
The plaintiff when in the service of the State of New South Wales received an annual salary of £525. He has received that salary or more from the Commonwealth, but he was also entitled while employed by the State of New South Wales to overtime payment under an award applying to clerical Crown employees, "overtime" being defined as meaning
all time whether before or after the usual office hours necessarily occupied by direction of the permanent head or other responsible officer on his behalf in the performance of work which from its character or from special circumstances cannot be performed during the ordinary working hours of the office to which the officer is attached.
Rates of overtime were provided by the award and by variations of the award, in some cases at the rate of ordinary time, in other cases at the rate of time and a half, and in other cases at the rate of double time. Usual office hours were fixed in the public service of New South Wales by the Public Service Board, in pursuance of a power conferred on the Board by the Public Service Act 1902, s 20 (1) (d). The hours so fixed in the New South Wales service were 8.30 am to 5 pm, with a break of three-quarters of an hour for lunch on Monday to Friday. There were no usual office hours on Saturday (except on every sixth Saturday).
In the Commonwealth service the plaintiff had to work on Saturdays, and he has not been paid overtime in respect of such work. If he had continued in the State service he would have been paid overtime for that work. He contends that this variation in the terms of his employment involves a "less favourable rate of remuneration" than that to which he would have been entitled if he had been transferred at the rate of remuneration to which he was entitled immediately prior to his transfer. While in the State service he received £525 for working from Monday to Friday during certain hours. In the Commonwealth service he received £525 for working from Monday to Friday during substantially the same hours, but with an addition of three hours' work on Saturday. Therefore, as more work was done, it is argued, his rate of remuneration was less, and therefore the rate of remuneration was less favourable than the rate which had applied to him when he was in the New South Wales service. In my opinion this argument fails, because the officer was not employed and paid on an hourly basis, but on an annual basis. A rate of remuneration for work may be determined in relation to periods of time worked, or in relation to quantity of work done, or according to some other standard. An officer employed and paid by the hour would be paid more money if he worked for more hours, his rate of remuneration per hour remaining the same. In the case of an annual salary, the period in respect of which the remuneration is paid is one year, and if, as is the case, the plaintiff received in respect of each year's work payment at the same annual rate as that which he was entitled to receive before he was transferred to the Commonwealth, he was paid at the same rate of remuneration, even though he did more work during the year in order to earn that rate. He works during more hours for the same pay, but his only "rate of remuneration" is a rate per year and not a rate per hour.
Section 6 (1), in its substantive provision, provides for the fixing by Commonwealth regulations of the terms and conditions of employment of transferred officers. The proviso prevents the payment of less favourable rates of remuneration. The section, therefore, contemplates the maintenance of rates of remuneration at not less than a prior standard, but the possible variation by regulations of other terms and conditions of employment. Ordinarily it would not be contested that, if one authority had power to fix rates of remuneration and another authority had power to fix terms and conditions of employment, the former authority could fix wages and salaries and the latter authority could fix hours of work. This practice had, as already pointed out, been adopted in New South Wales, where an industrial tribunal determined rates of pay and the Public Service Board determined hours of work.
It is contended for the plaintiff that a variation in the hours of work necessarily affects the rate of remuneration for that work. In my opinion this argument is not well founded. The same argument might be used if any variation at all were made in any of the terms and conditions of employment. But s 6 is based upon a contrary assumption, viz, that terms and conditions of employment may be varied without thereby changing rates of remuneration.
Accordingly, in my opinion, the Commonwealth Act permitted the Governor-General to prescribe office hours, and an alteration in office hours does not alter the rate of remuneration of the plaintiff. The first question submitted to the court, which inquires whether the usual State office hours or the usual Commonwealth hours are to be treated as the usual office hours for the purpose of applying the relevant award in calculating overtime payments, should be answered on the basis that the hours prescribed by the Commonwealth regulation are the usual office hours for the purpose stated. This means that the first question should be answered: (i) (a) No (i) (b) Yes.
The second question inquires whether the plaintiff is entitled to be paid by the Commonwealth at rates not less favourable than those prescribed for overtime by the said award for work done outside the hours prescribed by the State award. In my opinion this question should be answered : (a) As to work done by him before 8.30 am or after 5 pm, Yes, because the Commonwealth hours were the same as the State hours in respect of times of beginning and ceasing work on Mondays to Fridays ; (b) as to work done by him on any Saturday other than between the hours of 8.30 am and 11.30 am on any sixth Saturday, No, because these were the Commonwealth usual office hours ; (c) for all work done by him on any Sunday or any public holiday, Yes, because the Commonwealth regulations did not prescribe any usual office hours on these days. These questions relate only to the hours in respect of which overtime rates should be paid. No question as to rates of overtime payment -- whether they were alterable by Federal regulation or not -- arose in the present case. The answers to the questions asked should be framed so as to limit their effect to the former subject.
The third question inquires whether the Commonwealth regulation fixing office hours is invalid. This question should be answered, No.
The case stated contains an agreement of the parties that judgment should be entered for the defendant in the event of the questions being answered as above stated. There is no agreement as to costs. The most convenient course, therefore, will be to remit the case with the answers to McTiernan J.