Kay v Commonwealth [1920] HCA 9; (1920) 27 CLR 327 (4 March 1920)

HIGH COURT OF AUSTRALIA

Kay Plaintiff; against The Commonwealth Defendant.

H C of A

4 March 1920

Starke J.

Reynolds, for the plaintiff.

Latham, for the defendant.

Starke J. read the following judgment:—

March 4

Starke J

On 30th June 1916 the plaintiff, Ernest Frank Kay, was a permanent officer of the 4th class in the Clerical Division of the Commonwealth Public Service, in receipt of a salary of £260 per annum. He was described as a senior telegraphist (Government Gazette, 31st August 1916, pp. 2023, 2033, 2244). Kay claimed that his duties, from the time of his ranking as a senior telegraphist in July 1914 to 1st November 1916, were to work inter-State lines and supervise the operating staff. But I find in point of fact that Kay never supervised the operating staff, and that his duty was continuously working the inter-State lines. It is possible that the supervising officer was absent on some occasions, and that Kay was the senior officer then present. Naturally, perhaps, Kay has magnified the importance of these occasions. However, I am satisfied that the duty of supervision was never entrusted to Kay and that he never supervised the operating or any other staff.

In 1914 the Australian Commonwealth Post and Telegraph Officers' Association submitted a claim to the Commonwealth Court of Conciliation and Arbitration relating to salaries, &c., pursuant to the Arbitration (Public Service) Act 1911. The Postmaster-General and the Commissioner of the Public Service were respondents to the proceedings. Kay was, at all times material, a member of the Association. In September 1916 the Arbitration Court made an award in the before-mentioned proceedings which came into operation on 1st November 1916, and it is on this award that the present action against the Commonwealth is based.

No suggestion was made before me that the action was incompetent, and having regard to the Arbitration (Public Service) Act 1911, particularly sec. 15, and the Judiciary Act, sec. 56, it appears to me that the Court has jurisdiction to hear and determine the action. The effect of the Arbitration (Public Service) Act 1911 gives the award, in my opinion, the force of law.

Kay relied upon clauses 1 and 14 of the award and the schedule, and contended that he fell within the description "Telegraphists, class 4, grade 3—Officers appointed to grade 3 to regularly work inter-State lines ... coupled with the duty of supervising the operating staff," and was entitled to a salary of £280 per annum; whilst the Commonwealth insisted that he fell within the description "Telegraphists, class 4, grade 2—Officers appointed to grade 2 to work inter-State lines continuously without supervising duties," and was only entitled to a salary of £260 per annum.

It should be noted that the grades fixed by the award are not the subdivisions set forth in the Third Schedule to the Public Service Act 1902-1918. Kay was never appointed since the award to grade 3 of class 4, and no such grade existed before the award. In point of fact Kay was gazetted, as on 30th June 1917, a telegraphist, grade 2, class 4 (Government Gazette, 6th September 1917, p. 2120). Clause 1 of the award, in my judgment, confers no rights upon an officer unless he fills or has been appointed to the designated position. Kay does not, therefore, fall within the provisions of clause 1 of the award.

Next he relies upon clause 14 of the award and the schedule as establishing his claim. Clause 14 itself was repealed by another award of 28th March 1918, but the schedule, which is in much the same terms, was allowed to remain. In order to ascertain whether Kay filled any of "the positions named hereunder" (see schedule)—that is, so far as this case is concerned, "Telegraphists, class 4, grade 3"—it becomes necessary, in my judgment, to consider not only the salary he was receiving but also the class of work he was performing, and whether the work was characteristic of grade 3, class 4. As already indicated, the award characterized the work of telegraphists, grade 3, class 4, as regularly working inter-State lines coupled with the duty of supervising the operating staff. Kay, as already found, did not supervise the operating or any staff before or after the award, and was never entrusted with any such duty. Consequently, in my judgment, the provisions of clause 14 and the schedule do not confer any rights upon him.

The action is dismissed with costs.

Action dismissed with costs.

Solicitor for the plaintiff, E. A. Smart.

Solicitor for the defendant, Gordon H. Castle, Crown Solicitor for the Commonwealth.