Sokanos v Commissioner for Superannuation [2001] FCA 28 (2 February 2001)

Last Updated: 2 February 2001

FEDERAL COURT OF AUSTRALIA

Sokanos v Commissioner for Superannuation [2001] FCA 28

SUPERANNUATION - review of Administrative Appeals Tribunal decision regarding rate of applicant's entitlement to invalidity pension under the Superannuation Act 1976 (Cth) - determination of applicant's `final annual rate of salary' under the Superannuation Act 1976 (Cth) - rate of invalidity pension determined by reference to an applicant's `final annual rate of salary' and not salary received during any particular period - applicant retired on ground of invalidity in 1990 but had not worked since 1985 - applicant performing higher duties at time he ceased working - whether applicant entitled to invalidity pension based on rate applicable to his substantive classification at 1990 or on rate applicable to classification at 1990 at which he was performing duties to 1985 - construction of reg 4 and reg 6 of the Superannuation (Salary) Regulations for the purpose of determining whether an applicant is entitled to the benefit of the higher duties allowance at retirement - effect of the amendment to reg 4 of the Superannuation (Salary) Regulations on an applicant's entitlement to the higher duties allowance between date of ceasing to work and date of retirement.

SUPERANNUATION - determination of the Public Service Commissioner made under s 82D Public Service Act 1922 (Cth) - whether determination deemed `final annual rate of salary' to refer to rate applicable to classification in 1990 at which applicant was performing higher duties in 1985.

Superannuation Act 1976 (Cth) ss 3, 5, 46, 47(1), 47(2), 66(1), 67(2), 68 and 69

Superannuation Act 1922 (Cth)

Public Service Act 1922 (Cth) ss 82D(2), 82D(4)(a)(i) and 82D(4)(b)(ii)

Superannuation (Salary) Regulations regs 4, 4(1), 4(2)(a), 5, 6(1)(a)(b) and 6(3)(a)(b)(c)

Public Service Regulations regs 116 and 116A(4)

JAMES SOKANOS v COMMISSIONER FOR SUPERANNUATION

S 1 OF 2000

MANSFIELD J

2 FEBRUARY 2001

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 1 OF 2000

BETWEEN:	JAMES SOKANOS APPLICANT
AND:	COMMISSIONER FOR SUPERANNUATION RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	2 FEBRUARY 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 1 OF 2000

BETWEEN:	JAMES SOKANOS APPLICANT
AND:	COMMISSIONER FOR SUPERANNUATION RESPONDENT

JUDGE:	MANSFIELD J
DATE:	2 FEBRUARY 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") concerning the level of the applicant's entitlement to superannuation under the Superannuation Act 1976 (Cth) ("the Act").

2 The primary facts were not in dispute.

3 The applicant was born on 4 February 1949. On 30 April 1975 the applicant was employed in the Australian Taxation Office and became a contributor for the purposes of the Superannuation Act 1922 (Cth). On 1 July 1976, on the commencement of the Act, he became an eligible employee for the purposes of the Act. He commenced to make contributions to the scheme established under the Act. On 4 April 1977 he transferred his employment to the Department of Social Security. He had a substantive classification as Clerical Assistant Grade 1 ("CA1"), a classification which falls now within the broad band description Administrative Services Officer Class 1 ("ASO1"). Not long after his transfer, he commenced to perform higher duties and to receive a higher duties allowance. He performed higher duties then, in various classifications, until 1985. On 25 March 1985, when he last worked at the Department of Social Security, he was still classified as a Clerical Assistant Grade 1 (ASO1) and was receiving a higher duties allowance ("HDA") to reflect a total salary as a Clerical Officer Grade 5 (broad banded to Administrative Services Officer Class 2 ("ASO2")). On 18 January 1985, an authorised person under the Act formally recognised the applicant's HDA as an allowance of a prescribed kind, pursuant to reg 5(1) of the Superannuation (Salary) Regulations ("the regulations"). On 4 February 1985 the applicant's superannuation contributions were increased to reflect the total salary he was then receiving inclusive of his HDA allowance. At the time he ceased work on 25 March 1985, the applicant was acting in a CA5 position (still within the broad band ASO2 classification).

4 It is convenient at this point to note that the classification structure at the time of the applicant's initial employment, and until 1987, was the Clerical Assistant Grades. In 1987, that classification structure was replaced by the Administrative Senior Officer classification. The relevant changes so far as the applicant is concerned were as follows:

CA1 - CA3 became ASO1

CA4 - CA5 became ASO2, and

CA6 - CA7 became ASO3.

5 Nothing turns on that change. For practical purposes, at the time he last worked on 25 March 1985 the applicant's substantive classification was ASO1. He maintained that substantive classification until 20 June 1990 when he was retired. However on 25 March 1985, as he was receiving HDA, he was then being paid at the rate applicable to an ASO2.

6 Thereafter the applicant did not work. Between 25 March 1985 and 10 June 1985, the applicant was on paid sick leave. From 11 June 1985 to 10 September 1985 he was on long service leave. Those periods of leave were paid at a rate which reflected the HDA allowance (the ASO2 rate). Then, between 11 September 1985 and 13 December 1985 the applicant was on leave without pay due to illness. For the remainder of December 1985 he received paid sick leave, at the rate applicable to his substantive classification as a CA1 (ASO1). Between 31 December 1985 and 4 August 1986 the applicant was on sick leave without pay. Between 5 August 1986 and 1 September 1986 the applicant again received paid sick leave at a rate which reflected his substantive classification as a CA1 (ASO1). Between 2 September 1986 and 20 April 1988 the applicant was on sick leave without pay. In circumstances which I do not need to address, the applicant was deemed to have forfeited his office as a permanent officer on 20 April 1988, but he was subsequently re-appointed at the ASO1 classification on 8 January 1990. The period between 20 April 1988 and 8 January 1990 was treated as leave without pay. The parties are agreed that, despite those events, he is to be treated as having been employed as an officer at all material times up to 20 June 1990. Upon his reinstatement, the applicant again received sick leave without pay from 8 January 1990 to 28 February 1990. He received a third period of paid sick leave between 1 March 1990 and 28 March 1990 calculated at the rate applicable to an ASO1. He was then on sick leave without pay again from 29 March 1990 until 20 June 1990.

7 On 20 June 1990 the applicant was retired on the ground of invalidity. His termination pay was calculated at the rate applicable to an ASO1.

8 Both the Act and the regulations were amended between March 1985 and June 1990. Counsel for the respondent confirmed that the amendments so made did not affect in any relevant way the provisions applicable to determination of this appeal. I accept that submission in respect of amendments to the Act. The position with respect to amendments to the regulations is a little more complex. In particular, after 25 March 1985, there were changes to reg 4 to which I refer in par 26 below.

9 Section 66(1) creates the applicant's entitlement to an invalidity pension under the Act. That is because he ceased to be an eligible employee by reason of retirement on the ground of invalidity before attaining his maximum retiring age. As he was not paid supplementary contributions, he became entitled to an invalidity pension calculated in accordance with s 67 of the Act. He had not made an election under ss 68 or 69 of the Act, so s 67 of the Act applied. He had not less than thirty years of prospective service.

10 The quantification of the applicant's entitlement to an invalidity pension was therefore to be determined under s 67(2) of the Act. It provides:

"Where the period of prospective service of a person to whom this section applies is not less than 30 years, then, subject to sub-section (3) of this section, the annual rate of the pension to which the person is entitled is 70 per centum of that person's final annual rate of salary."

11 Section 3 defines the expression final annual rate of salary in the following terms:

"`Final annual rate of salary', in relation to a person who has ceased to be an eligible employee, means -

(a) if paragraph (b) or (c) does not apply in relation to him - his annual rate of salary on his last day of service;

(b) if the annual rate of salary by reference to which his final basic contribution is calculated is higher than the rate specified in paragraph (a) - that higher rate; or

(c) ..."

12 In turn, s 3 also defines the following expressions:

"`final basic contribution', in relation to a person who has ceased to be an eligible employee, means the fortnightly basic contribution payable by him on the contribution day last preceding his last day of service, or, if his last day of service is a contribution day, payable by him on his last day of service;

...

`last day of service', in relation to a person who has ceased to be an eligible employee, means -

(a) except where paragraph (b) applies - the day on which he so ceased; or

(b) where the person has ceased to be an eligible employee on more than one occasion - the day on which he last so ceased;"

13 The expression "annual rate of salary" is dealt with in s 5 of the Act. Section 5 relevantly provides:

"(1) In this section, "salary" means salary or wages and includes any allowance, or the value of any allowance, or any fee, that is an allowance or fee of a kind that, under the regulations, is to be treated as salary for the purposes of this Act, but does not include any part of any salary or wages that, under the regulations, is not to be treated as salary for the purposes of this Act.

(2) For the purposes of this Act but subject to sub-sections (3), (3A), (3B) and (3C), the annual rate of salary of an eligible employee on a particular day is an amount equal to the amount per annum of the salary payable to him on that day.

(3) The regulations may provide that, in a case specified in the regulations, the annual rate of salary of an eligible employee on a particular day shall, for the purposes of this Act or a provision of this Act specified in the regulations, be an amount equal to such amount per annum as is ascertained under the regulations.

..."

14 On 22 August 1990 a delegate of the respondent determined that the applicant be retired with an invalidity pension based on a salary commensurate with the ASO1 classification. That rate was then $18,904 per annum. It was, according to the respondent, the applicant's "final annual rate of salary". That decision was confirmed on reconsideration on 23 September 1998. It was also confirmed subsequently by the Tribunal. The applicant claims that he is entitled to an invalidity pension determined by reference to the salary applicable to an ASO2 at 20 June 1990. That rate of salary does not appear in the documents, but I infer it was then considerably higher than $18,904.

15 The rate of pay applicable to an officer at the ASO2 level at 25 March 1985 was $18,480. The applicant's superannuation fortnightly contribution from 4 February 1985 was $35.60. It was calculated by reference to the then ASO2 level of salary. That contribution rate of $35.60 per fortnight continued to 20 June 1990. The annual salary applicable to an ASO1 officer from 4 February 1985 was $12,985. That salary increased annually, and as noted was $18,904 by 20 June 1990.

16 The respondent determined to pay superannuation payments based upon that salary of $18,904, because it was higher than the salary "frozen" by reference to the fortnightly contribution of $35.60 by operation of s 47(1) of the Act. More accurately, the respondent formed the view that subs (b) of the definition of "final annual rate of salary" did not apply in relation to the applicant because the annual rate of salary by reference to which his final basic contribution was calculated was not higher than his annual rate of salary. The annual rate of salary by reference to which his final basic contribution ($35.60 per fortnight) was calculated was that applicable to an officer at the ASO2 level at 25 March 1985, namely $18,480. Consequently, contrary to the applicant's contention, the respondent regarded subclause (a) of the definition of final annual rate of salary as the applicable one.

17 The respondent acknowledged that, but for the ASO1 rate of salary having overtaken the "frozen" ASO2 rate of salary at 25 March 1985, the pension entitlement would have been calculated upon an annual rate of salary of $18,480. That is because the applicant did not, after 25 March 1985, make any election under s 47(2) of the Act. Consequently, s 47(1) deemed his annual rate of salary to be the ASO2 rate at 25 March 1985 for the purposes of determining the amount of his basic contribution under s 46. Section 47(1) provided:

"(1) If, on an anniversary of an eligible employee's birth (in this sub-section referred to as the `relevant anniversary'), his annual rate of salary is less than the highest annual rate of salary that was payable (or is deemed by a previous application of this sub-section, or by sub-section (3), to have been payable) to him on any day during the period commencing on the anniversary of his birth last preceding the relevant anniversary and ending on the day immediately preceding the relevant anniversary, his annual rate of salary on the relevant anniversary shall, unless he has made or makes an election under sub-section (2) by virtue of a decrease in his annual rate of salary that occurred during that period, be deemed, for the purposes of section 46, and any subsequent application of this sub-section, to be that highest rate."

18 It is accepted that the applicant did not make an election under s 47(2) of the Act. Due to the fact that, at 1985, the applicant's annual rate of salary (the ASO1 rate) was less than the highest annual rate of salary that was payable to him during the prior twelve month period (the ASO2 rate), the applicant's annual rate of salary for the purposes of fixing the amount of his basic contribution was deemed to be the salary of an officer at ASO2 level. Hence, s 47(1) operated to ensure that his deemed annual rate of salary for the purposes of fixing the amount of his basic contribution was $18,480, at least until the annual rate of salary applicable to him as an ASO1 exceeded that annual amount. As noted, the ASO1 rate exceeded $18,480 only shortly before 20 June 1990. Clause (b) of the definition of "final annual rate of salary" then complements that process by requiring the adoption of that higher rate of salary (if still applicable) for the purposes of quantifying the entitlement to an invalidity pension under s 66(1) of the Act.

19 The applicant's contentions are that that process of determining the amount of the invalidity pension to which he is entitled is erroneous.

20 Firstly, he submits that he was not in receipt of any salary at 20 June 1990, his last day of service (as defined), so that there was no applicable "final annual rate of salary" at that time upon which s 67(2) can operate. The argument then runs that, in that circumstance, the Tribunal should have looked to the general legislative scheme of the Act which, it was said, was to determine the amount of the invalidity pension by reference to the salary classification received by the eligible employee when that person last worked and to then determine whether that annual salary would have continued to be available to the applicant had he continued to work to 20 June 1990. He contends that, on the material before the Tribunal, he would have continued to receive an HDA and to be paid at the ASO2 level to 20 June 1990 if he had in fact continued working after 25 March 1985.

21 Alternatively, he contends, his "final annual rate of salary" should have been determined as that applicable to the ASO2 level by the application of s 5 of the Act and regs 4, 5 and 6 of the regulations under the Act. He performed work with an HDA for a number of years prior to 25 March 1985 and his basic contributions were adjusted to reflect that. The basic contributions were maintained at the level that applied at 25 March 1985 until his retirement on the ground of invalidity on 20 June 1990. The amount that he would have been earning on 20 June 1990, he contends, had he continued to work to that date, would have been at the rate applicable to an ASO2. It is then contended that the operation of s 5 of the Act and regs 4, 5 and 6 of the regulations result in the "final annual rate of salary" being that which, on the evidence, the applicant would have been earning at 20 June 1990 had he continued to work to that time.

22 In my judgment, the first of the applicant's contentions must fail. The quantification of the invalidity pension is by reference to the "final annual rate of salary". That is a defined expression. It is the annual rate of salary which is the basis of the calculation. The annual rate of salary is itself then determined in accordance with s 5 of the Act. The applicant's second contention addresses the proper operation of s 5, but I do not think that the legislative provisions leave any scope for contending that the quantification of the invalidity pension should be determined in some other way, whether by reference to the asserted general policy of the Act or by reference to what the applicant might have been or would have been earning at 20 June 1990 had he continued to work after 25 March 1985. An inquiry into those matters would not inform the question as to the applicable rate of salary; that is a matter to be determined by application of the legislative provisions themselves.

23 The applicant in his oral submissions also contended that he had been retired on 11 September 1985, the date to which he had received long service leave pay at the CA5 (ASO2) rate. Thereafter, his records show that he was variously on sick leave without pay, on sick leave with pay, or on leave without pay. He referred to records of an officer of the Department of Social Security of a telephone conversation with the applicant of 16 December 1985, addressing the question of whether he should seek sick leave without pay. Subsequently, he received payment of sick leave only for three relatively short periods at the ASO1 rate of pay. I have indicated above the process by which the respondent determined the amount of the applicant's invalidity pension. It was not determined by reference to, or because of, him having received those three periods of sick leave at the rate applicable to an ASO1 officer. The definition to "final annual rate of salary" in s 67 directs attention to the definition of "last day of service". It is the day the applicant ceased to be an eligible employee. The applicant, in his statement of facts and contentions before the Tribunal, acknowledged that he was retired on the ground of invalidity on 20 June 1990. Until that time, clearly, the applicant was an "eligible employee" as defined in s 3 of the Act. He ceased to be an eligible employee on that date, as he was no longer a permanent employee because he was no longer an officer for the purposes of the Public Service Act 1922 (Cth) ("the PS Act"). In my judgment, those matters clearly indicate that the applicant's entitlement to the invalidity pension under the Act is to be determined by reference to his final annual rate of salary at 20 June 1990 and not at some earlier date, even though as a matter of fact he did not work after 25 March 1985.

24 The question as to the applicable "rate of salary" is somewhat more difficult. Under s 5, "salary" is to be determined to include the HDA if it is "an allowance ... of a kind that, under the regulations, is to be treated as salary for the purposes of the Act ..." If the HDA is an allowance of a kind which, under the regulations, is not to be treated as salary for the purposes of the Act, s 5 clearly precludes that HDA from being included in the applicant's "salary" for the purposes of determining his final annual rate of salary.

25 It is important to observe that, whatever view is taken of the effect of those provisions, it is their terms which will dictate the relevant amount of the applicant's salary. There is still no scope for the Court to go outside those provisions to decide that the applicant is entitled to an invalidity pension based on the rate of salary applicable to an ASO2 level officer at 20 June 1990 simply because, as a matter of fact, that is probably what he would have been earning at that time had he continued to work to that date. There is some indication in correspondence from the Department of Social Security to the respondent that, as a matter of fact, that would have been the case.

26 The regulations, as in force at material times, dealt with allowances in Pt II. Regulation 4(1) relevantly defined an allowance of a prescribed kind to be a reference to:

"(a) an allowance that is payable to an eligible employee by reason that he temporarily performs the whole or a part of the duties of an office of a higher classification than the classification of the office occupied by him."

27 By Statutory Rule No 250 of 1988 (notified in the Gazette on 21 October 1988) reg 4 was amended by the addition of subreg (2) in the following terms:

"In this Part:

(a) a reference to an allowance includes, where the salary of an eligible employee is increased in respect of a period because the employee temporarily performs higher duties or acts in a higher rank or position, a reference to any part of the salary payable to the eligible employee in respect of that period that is attributable solely to his or her so performing or acting and is not payable during that period on any other ground or additional ground; and

(b) an allowance constituted by such a part of salary shall be taken to be an allowance of a prescribed kind referred to in paragraph (1)(a)."

I do not consider that reg 4(2)(a) directly affects the amount of the entitlement of the applicant to an invalidity pension, as it only clarifies the amount of the allowance which, under reg 4(1) is to be taken as an allowance of a prescribed kind. It explains, but does not extend, the operation of reg 4(1).

28 Subregulation (2)(a) makes it plain that an allowance includes the circumstance where the salary of an eligible employee is increased during a period because that employee is temporarily performing higher duties or acting in a higher rank or position.

29 Regulation 5 is directed to the definition of "salary" in s 5 of the Act. It deals with the circumstances in which certain allowances are to be treated as salary. It provides:

"5. Each of the following kinds of allowance is an allowance that is to be treated as salary for the purposes of the Act;

...

(l) an allowance of a prescribed kind that is payable on a regular basis to an eligible employee."

30 Regulation 6 then describes when an allowance of a prescribed kind is payable on a regular basis. Relevantly, it provides:

"6(1) An allowance of a prescribed kind shall not, for the purposes of paragraph 5(l), be taken to be payable to an eligible employee on a regular basis unless the allowance is payable in respect of duties or work performed by the eligible employee for a continuous period that commences -

(a) immediately after the eligible employee has performed for a continuous period of 12 months duties or work in respect of the performance of which an allowance of the same kind as that allowance has been paid or is payable to the eligible employee; or

(b) where a certificate in respect of the eligible employee has been given under sub-regulation (2) - on the day specified in the certificate.

...

(3) For the purposes of this regulation, where -

(a) for a continuous period immediately preceding a period of leave of absence, an eligible employee performs duties or work in respect of the performance of which an allowance of a prescribed kind is payable to him;

(b) that allowance or an allowance of the same kind as that allowance is not payable to him during the period of leave; and

(c) immediately after the expiration of the period of leave, the eligible employee performs, for a continuous period, duties or work in respect of the performance of which an allowance of the same kind as that allowance is payable to him,

the period of leave shall be disregarded and the periods during which he performs those duties or that work, being the period immediately preceding that period of leave and the period immediately following that period of leave, shall be deemed to be a continuous period."

31 In my view, reg 6(3) does not apply to the applicant. That is simply because he did not, after the expiration of the period of his leave, return to work at all. It is not necessary for the purposes of taking that step to determine whether either of subclauses (a) or (b) of reg 6(3) apply to the applicant because the subclauses are cumulative and not alternative requirements. The applicant did not qualify for the benefit of reg 6(3) because he did not satisfy the requirement of subclause (c). I think it is clear by the use of the word "performs", as well as by the terms of subclause (c), that it contemplates an actual return to work. I reject the applicant's contention to the contrary.

32 The respondent contended that the applicant did not fall within reg 6(1)(a) or (b) at 20 June 1990 because:

(a) the applicant's salary entitlement from 25 March 1985 was at the applicable ASO1 rate rather than the ASO2 rate because the direction by reason of which the higher rate of salary (the ASO2 rate) applied to the applicant expired on 10 September 1985 and thereafter, under the PS Act and the Public Service Regulations that entitlement ceased, and

(b) the effect of Public Service Board Determination 1984/19 ("the Determination") is that there was, in the circumstances, no deemed entitlement in the applicant to continue to receive the ASO2 rate of salary after he stopped performing the duties which he had performed to 25 March 1985 and after he received first paid sick leave and then long service leave at the ASO2 rate to 10 September 1985. Thereafter, he was on leave without pay, apart from three short periods of sick leave with pay.

33 Section 82D of the PS Act empowers the Public Service Commissioner, by instrument in writing, to determine the terms and conditions of employment of officers and employees. The determination of the Commissioner cannot, however, prevail over legislative or regulatory provisions: s 82D(2). The determination may make provision for and in relation to the salaries and allowances of officers and employees: s 82D(4)(a)(i). It may also specify terms and conditions subject to which leave of absence for recreation or on account of illness may be granted, including terms and conditions:

"as to the inclusion of the whole or part of specified allowances in salary for the purposes of any payment in respect of, or in lieu of, leave of absence for recreation, or of any payment in respect of leave of absence on account of illness;"

see s 82D(4)(b)(ii).

34 Part 3 Div 1 of the Determination deals with Higher Duties Allowances. Clause 3.1.1(2) provides that that Division applies to an officer who performs the duties of a higher office in pursuance of a direction under subreg 116(1) of the Public Service Regulations. Clause 3.1.3 establishes the entitlement to be paid an HDA during the actual performance of higher duties.

35 Clause 3.1.2 prescribes additional periods where HDA is payable. It relevantly provides:

"In this Division, unless the contrary intention appears, a reference, in relation to an officer to whom this Division applies, to a period during which an officer performs the duties of a higher office shall be read as including -

(a) if, immediately before the officer is absent on leave of absence with pay (other than long service leave) the officer was performing the duties of a higher office - that part of the period of such leave during which, but for the leave, the officer would have continued to perform in pursuance of a direction under regulation 116 the duties of a higher office; ..."

36 Clause 3.1.2 does not prescribe that the entitlement applies where the officer is on leave of absence without pay. That was the circumstance of the applicant from 11 September 1985, apart from three short periods during which he received sick leave. In the period of absence between 25 March 1985 and 10 September 1985, in accordance with clause 3.1.2(a), the applicant received payments at the rate of pay then applicable to an officer at the CA5 (ASO2) level. Clause 3.1.2(a), however, does not extend its operation to periods of leave of absence without pay. It operates in relation to "... the period of such leave ...", namely the period of leave of absence with pay. It is only in that event that the further inquiry is required as to whether the officer would have continued to perform the higher duties as directed during that further period. The applicant pointed to the words at the start of clause 3.1.2, namely that the clause applied "unless the contrary intention appears". I do not consider that those words provide a mandate for redrawing clause 3.1.2 of the Determination to extend its operation to periods of leave of absence without pay (assuming the other criteria for the operation of the clause are met). To do so would be to include a circumstance which the words of the clause do not include, and to do so where it may properly be assumed that the Public Service Board (now the Public Service Commissioner) would have been aware that officers may have leave of absence without pay as well as leave of absence with pay. In addition, there are no particular features of Pt 3 Div 1 of the Determination dealing with Higher Duties Allowance which, in my view, do indicate any such contrary intention. The different treatment of periods of leave of absence with pay and periods of leave of absence without pay is no doubt a reflection of the fact that the circumstances in which, and the periods for which, leave of absence without pay may be taken are many and varied.

37 Regulation 116 as in force from January 1984 (and later reg 116A, applicable from January 1990) of the Public Service Regulations provides for directions to be given for an officer to perform temporarily higher duties. Regulation 116A(4) requires a direction to be expressed to continue either until the expiration of a specified date or until the occurrence of a specified event. So far as I can see, there is no similar requirement in reg 116 as it applied to 1990 requiring a direction to be expressed to continue until a specified date or until a specified event occurs.

38 However, the Tribunal accepted that there was in force a direction under reg 116 of the Public Service Regulations at the time the applicant last worked on 25 March 1985. It further found that that direction expired on 10 September 1985. There was material before the Tribunal upon which it could make those findings. In an undated letter from the Manager, Personnel Services, of the Department of Social Security to the applicant (which I infer from its place in the documents before the Tribunal was sent in early 1996), the officer stated that the direction for the applicant to perform higher duties which was in force on 25 March 1985 expired on 10 September 1985, and was not subsequently renewed. The direction itself, presumably in writing, was not in evidence. The Higher Duties Record maintained concerning the applicant also records that the applicant's period of higher duties as the CA5 level expired on 10 September 1985. In my judgment, the Tribunal has not erred in law in reaching that conclusion. In addition, I do not think that the applicant has pointed to other material to controvert that finding.

39 The applicant also referred to a file note of the Assistant Director, Civilian and Military Reconsideration Section, of the respondent dated 11 August 1997. He contends that it shows that there was "no direction for my higher duties to cease". That memo was part of the process of the respondent in reconsidering the decision concerning the applicant, and arose because the Assistant Director wished to know why the departmental file held so few forms authorising HDA. The file note records the fact that, until 1987, HDA forms were kept centrally

"... and would only be placed on the relevant Personnel file if there was a need for the matter to be resubmitted for future salaries action (cessations etc). In any event these had a holding period of two years and would all have been destroyed by now."

I do not consider that that reference contradicts the material before the Tribunal, and upon which it apparently relied in coming to its conclusion, that the applicant's HDA direction in force at 25 March 1985 expired on 10 September 1985. It does not, in any event, provide any foundation for concluding that the Tribunal erred in law in finding that the HDA direction concerning the applicant in force when he last worked expired on 10 September 1985.

40 The applicant referred to a "Certificate in Respect of an Allowance" dated 23 January 1984 which is in the following terms:

"Approval has been given by competent authority for the payment to James Sokanos an eligible employee, of an Allowance (presently $3912 per annum), being an Allowance of a prescribed kind under Regulation 5(1) (as described in Regulation 4) that commenced, or will commence, on 10/8/82. The Allowance is (describe briefly the Allowance payable):- higher duties as a Clerical Assistant Grade Five

*The eligible employee has received the Allowance continuously for a period of twelve months and one day."

There are apparently other such certificates. Those certificates were given under reg 6(2) of the regulations, rather than under the PS Act or the Public Service Regulations. Clearly it is to provide notification to the respondent for the purposes of the respondent becoming aware of the need to include an allowance in an officer's salary for the purposes of s 5 of the Act. In my view, neither the certificate nor reg 6(2) of the regulations create any entitlement on the part of the applicant beyond that for which the Act and the regulations otherwise provide.

41 The applicant also produced at the hearing of this appeal his group certificate for the year ended 30 June 1985, showing his taxable income for that year as $19,853. Counsel for the respondent accepted the authenticity of that document. That no doubt reflects the fact that, during that financial year, the applicant spent periods working at a level or levels higher than the CA5 level; his Higher Duties Record confirms that. However, that position does not entitle the applicant to go beyond the relevant statutory provisions to determine the amount of his invalidity pension at 20 June 1990. As I have indicated, that entitlement is to be determined by reference to those provisions. They do not provide that the actual salary received during any particular period is the determinant of the amount of the invalidity pension. It is the "final annual rate of salary", as defined, which determines that entitlement.

42 In the course of its reasons, the Tribunal referred to reg 116A of the Public Service Regulations. In particular, it noted that reg 116A(4) requires a direction to perform higher duties must be expressed to remain in force until the expiration of a specified day or until the occurrence of a specified event. Regulation 116A was introduced by Public Service Regulations (Amendment) Statutory Rule 90 of 1987. It commenced on 14 June 1987. The Tribunal was in error in assuming that it was in force at the time any direction was made that the applicant perform higher duties operative at 25 March 1985. I do not consider that that error should lead to the Tribunal's decision being set aside. Regulation 116 of the Public Service Regulations as in force at 1985 empowered the Chief Officer of a department to direct in writing an officer to perform temporarily the duties of another office. It clearly contemplated that any such direction would be for a period of time. Such a direction could properly include an expiration date. The Tribunal found that the relevant direction did so. I have found that it did not err in law in making that finding of fact.

43 On the basis of that finding, the applicant ceased to be entitled to receive the HDA as part of his salary at 10 September 1985. The Determination did not have the effect of extending that entitlement, or of establishing it after 10 September 1985 as the applicant from that date (apart from three short periods) was then on leave without pay. As noted earlier in these reasons, clause 3.1.2(a) extends the entitlement only in respect of leave with pay which immediately follows a period of working with an HDA. Further, for reasons already given, the Act and the regulations do not themselves result in the applicant's HDA at 25 March 1985 being treated as part of his final annual rate of salary because he did not return to work so as to activate reg 6(3) of the regulations, and subclause (b) of the definition of that term did not result in a figure higher than the ASO1 annual rate of salary at 20 June 1990.

44 The final basic contribution of $35.60 per fortnight is calculated from the ASO2 annual rate of salary at 25 March 1985 ($18,480). That figure is lower than the applicant's annual rate of salary as an officer engaged at the substantive ASO1 level at 20 June 1990 ($18,904).

45 In my judgment, the application must fail. I so order.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 2 February 2001

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	T Howe
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 November 2000
Date of Written Submissions	15 January 2001
Date of Judgment:	2 February 2001