Chalmers v Commonwealth

73 CLR 19

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(Judgment by: Williams J)

Chalmers
vCommonwealth

Court:

Judges: Latham CJ
Rich J
Starke J
Dixon J
McTiernan J

Williams J

Hearing date: 15 August 1946
Judgment date: 14 October 1946

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Judgment by:
Williams J

The plaintiff is a taxation officer of the public service of New South Wales, who was temporarily transferred to the public service of the Commonwealth under s 4 of the Income Tax (Wartime Arrangements) Act 1942. Section 6 of this Act provides that, 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, the terms and conditions of employment of every transferred officer shall, during the period of transfer, be as prescribed. There is a proviso to the section which provides, so far as material, 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.

There are in the public services of New South Wales and of the Commonwealth, as one would expect, the ordinary hours of work for public servants and other hours which are classed as overtime. At the date of the transfer the ordinary hours of work in the public service of New South Wales were from 8.30 am to 5 pm (with three-quarter of an hour for lunch) from Mondays to Fridays inclusive. Apart from an additional quarter of an hour for lunch, similar hours were worked in the Commonwealth public service on these days. But the war was on, and the public servants of the Commonwealth as part of their ordinary hours were also required to work on Saturdays from 8.30 am to 11.30 am.

By Statutory Rules No 375 of 1942 notified in the Commonwealth Gazette on 28th August, 1942, the Federal Executive Council made regulations under s 6 of the Act called the Income Tax (War-time Arrangements) Regulations, prescribing the terms and conditions of employment of transferred officers. Regulation 14 provides, inter alia , that the conditions in the public service of the Commonwealth relating to attendance and hours of duty, overtime, Sunday and holiday duty and payments therefor shall, mutatis mutandis , apply to such transferred officers. The plaintiff did not therefore qualify under the regulations for overtime at the rate of time and a half for his work on Saturday mornings, as he would have done had he remained in the public service of New South Wales. He now claims that his rate of remuneration will have been reduced in breach of the proviso to s 6 unless he is paid at the rate of time and a half for this work. It will be seen that the proviso does not give a statutory right of action. It operates to invalidate a regulation made in breach of its provisions. But the parties have agreed that the plaintiff's right to this extra payment shall be tested in this manner.

In my opinion the claim is misconceived. The first paragraph of s 6 confers a positive authority upon the Executive couched in the most general terms to prescribe the terms and conditions of employment of transferred officers. One of the most important terms and conditions would be the ordinary hours to be worked. As explained in the Uniform Tax Case , 65 CLR 373 at p 465, [1942] ALR at p 218, Federal and State income tax prior to the War-time Arrangements Act was being collected in all the States except Western Australia by the State income tax departments, whereas in Western Australia it was being collected by the Commonwealth income tax department. The ordinary hours of work of public servants and their rates of pay for ordinary work and for overtime presumably differed in each State. The purpose of s 6 was it seems to me to empower the Executive to fix the same terms and conditions of employment for officers transferred in each State and to make them conform to the terms and conditions of employment of its own public servants, except in relation to pensions and other payments on retirement or death and provided that their rates of remuneration were not less favourable than those which they were receiving from the State at the date of transfer.

The ordinary meaning of remuneration is pay for services rendered. At the date of transfer the plaintiff was receiving an annual salary in excess of £525 but less than £625 per annum. To earn this salary he had to work the ordinary hours that public servants were required to work from time to time in his department. He was not paid by the hour but at an annual rate. If he was paid at the same annual rate for working the usual hours in the Commonwealth public service his rate of annual remuneration would not be less favourable than his former rate. If he was required to do work classed as overtime in the public service of the Commonwealth he would be entitled to be paid for this work at a rate not less favourable than the State rate. It appears that he was required to do such work and that he was paid at such rates. In my opinion he has received everything to which he is entitled. His whole claim rests on the proviso. A proviso excepts out of the earlier part of the section which contains it something which would otherwise have been within the enacting part. In Wood v Wood, (1923) 93 LJ KB 538 at p 542, Scrutton, LJ, said (in a passage recently cited by the court of Appeal in Wilson v Chatterton, [1946] 1 KB 360 at p 365) --

I am rather disposed to think, although I do not know of any express authority for it, that when you have an Act which is intended to lay down a general principle, you construe the exceptions rather against those who put them forward.

For these reasons I would answer the questions asked: (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.