Chalmers v Commonwealth
73 CLR 19(Decision by: Starke J)
Chalmers
vCommonwealth
Judges:
Latham CJ
Rich J
Starke JDixon J
McTiernan J
Williams J
Judgment date: 14 October 1946
Decision by:
Starke J
Case stated pursuant to the Judiciary Act 1903-1940. The questions stated arise upon the Income Tax (War-time Arrangements) Act 1942, which I cannot think is within the constitutional power of the Parliament of the Commonwealth, despite the decision of this court in South Australia v The Commonwealth , [1942] ALR 186. Assuming, however, for the day that s 6 of the Act was validly enacted, the question is whether certain officers transferred from the service of the State of New South Wales to the Commonwealth pursuant to the Act are entitled to overtime pay for time worked on Saturdays. Except in relation to any pension, payment or other benefit to be paid or granted on or after the retirement or death of any transferred officer, that section provides that the terms and conditions of employment of every officer transferred from a State service to the public service of the Commonwealth pursuant to the Act shall during the period of transfer be as prescribed, that is, as prescribed by regulations made by the Governor-General in Council. Regulations (Statutory Rules 1942, No 375) were made prescribing that the laws, conditions and practice in force in the public service of the Commonwealth relating to attendance and hours of duty, overtime, Sunday and holiday duty and payments therefor, should apply to transferred officers. The hours of duty of the Commonwealth public service were from 8.30 am to 5 pm, with a break for luncheon, from Mondays to Fridays, and from 8.30 am to 11.30 am on Saturday.
The plaintiff claims overtime rates of pay for work done between 8.30 am to 11.30 am on Saturday, because in the State service work on Saturday did not fall within his hours of duty, and he would have become entitled to overtime if he had worked in the State service on that day. The claim is based upon the proviso to s 6 --
Provided that ... 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 ...
The Commonwealth, in prescribing hours of duty for Saturdays, has changed the hours of duty of transferred officers, which is within the power conferred upon it by s 6 of the Act. That, of course, affects the amount payable in respect of overtime, but it does not change the rate of remuneration of transferred officers nor even the overtime rates, so far as appears from the case, when work is done beyond the hours prescribed pursuant to s 6.
The questions stated should be answered: (i) (a) No, (b) Yes. (ii) (b) No (a) and (c) should not be answered.
The regulations made under the Income Tax (Wartime Arrangements) Act (Statutory Rules 1942, No 375) may affect overtime rates -- see regs 14 and 15. But these regulations were not discussed, and the parties assumed, perhaps rightly, that the Crown Employees (Clerical) award of the Industrial Commission of New South Wales governs the matter.
(iii) The whole of the Act and the regulations are, in my opinion, unconstitutional and invalid, but the plaintiff has not any right of action against the Commonwealth for the moneys which he claims.