Chalmers v Commonwealth
17 CLR 19(Decision by: McTiernan J)
Chalmers
vCommonwealth
Judges:
Latham CJ
Rich J
Starke J
Dixon J
McTiernan JWilliams 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
Decision by:
McTiernan J
In my opinion Question (i) should be answered : (a) No and (b) Yes. Two assumptions are involved in this question. The first is that, in order to calculate the overtime payments mentioned in the question, it is necessary to apply the State award, also mentioned in the question. The second assumption is, that in the Federal as in the State public service, overtime is the time occupied by an officer in performing official work beyond the usual office hours.
The answer to the questions in the case is governed by the construction of s 6 (1) of the Income Tax (War-time Arrangements) Act 1942. The case comes down to this question: Is it necessary, in order to comply with the proviso, to make the calculation of the overtime payments now in question by reference to hours worked in excess of the usual office hours of the Commonwealth or of the State?
The power conferred upon the Commonwealth Government by s 6 (1) extends to prescribing the terms and conditions of employment of every transferred officer in relation to usual hours of duty, overtime and remuneration; but the proviso requires that any terms and conditions which are prescribed under the sub-section should secure to the officer a "rate of remuneration" 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.
The ordinary meaning of "rate of remuneration" covers rate of remuneration for overtime. In my opinion that expression in the proviso includes overtime rates. The proviso gives the transferred officer a guarantee of a minimum rate , inter alia, for overtime. The relevant comparison is between the Federal and State rates of remuneration for overtime. But it would not determine the issue whether the plaintiff has been treated less favourably than the proviso requires to make a comparison between the actual amount of his Federal remuneration and a hypothetical amount of State remuneration, or, in other words, between his total receipts in the Federal service and what he would have received if he had attended for the performance of duty in the State service for the same total number of hours as he attended for duty in the Federal service. In the present case the question comes down to a comparison between the rate prescribed under s 6 (1) for overtime, that is, time beyond the regular office hours prescribed under this sub-section, and the overtime rate under the State award. As regards overtime, the proviso does not require that the hours worked by a transferred officer in the Commonwealth service be apportioned on the basis of State law between usual office hours and overtime, and the State overtime rate be applied to overtime ascertained in that way. I think that the proviso requires that in respect of overtime determined according to Federal law, the overtime rate prescribed by Federal law for any transferred officer in pursuance of s 6 (1) should not fall below the standard mentioned in the proviso. Regarding the matter in that way, upon the facts of the present case, there has been no departure from the proviso. So far as work done during the hours mentioned in Questions (ii) (a) and (c) is concerned, this would be Commonwealth "overtime," because it was not done during usual office hours fixed under Commonwealth law; but so far as the hours mentioned in Question (ii) (b) are concerned, these were Commonwealth "usual office hours." I think, therefore, that the answers to Questions (ii) (a) (b) and (c), should be Yes, No, Yes respectively. The answer to Question (iii) should, in my opinion, be No.