Opinion Number. 240

Subject

PUBLIC SERVANT WHETHER FURLOUGH A LEGALLY ENFORCEABLE RIGHT

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1902, s. 71

Date
Client
The Public Service Commissioner

The Public Service Commissioner forwards the following case for opinion:

There are at present in the Commonwealth Public Service over 3,000 officers who are eligible for furlough by virtue of having had 20 years' service; and it will be understood that if any considerable number of these were to apply for furlough simultaneously the effect would be to seriously dislocate the working of the Departments and retard public business.

Hitherto I have adopted the policy of recommending the granting of furlough only in cases where the past service of the officer has been characterised by diligence, efficiency, regular attendance, and the cheerful and ready performance of work entrusted to him, and where the officer can be spared without inconvenience to public business.

I regard it as necessary, however, that I should be fortified with the opinion of the Legal Adviser to the Government in any line of action I may adopt in dealing with applications for furlough, and I will be glad if the Attorney-General will furnish an opinion respecting the proper interpretation of section 71 of the Commonwealth Public Service Act, particularly as to:

  1. Whether a recommendation or expression of opinion by the Permanent Head or Chief Officer, or both, as to granting, refusing, or postponing furlough, should accompany applications;
  2. Whether officers other than those who have 'been reduced for misconduct or deprived of leave of absence' (vide section 71) are entitled or eligible to be granted furlough, provided they have had at least twenty years' service;
  3. Whether in the event of a number of applications being received at the same time the Commissioner could select some to be granted on account of greater length of service or for special service, or for more satisfactory rierformance of duties, or for some other reasons considered sufficient by the Commissioner, and postpone consideration of others to a more convenient period, or decline to recommend the applications altogether;
  4. Generally as to the powers and duties of the Commissioner in respect to section 71, Commonwealth Public Service Act.

As to the general interpretation of the section, I am of opinion that-except the negative provisions-no question of law can arise in its administration. Those negative provisions are: (1) as to any officer who has been reduced for misconduct or deprived of leave of absence, it is illegal to grant furlough; (2) no furlough can be granted without the Commissioner's recommendation; and (3) where furlough has been granted, additional pay is not to be paid during the period of absence. Apart from those special provisions it is a pure question of administration and not of law. Discretion is given to the Governor-General in Council to grant furlough after 20 years' service for certain periods and at certain rates of pay. Both the Commissioner and the Executive would of course consider the exigencies of the Public Service, and would probably consider the merit, zeal, and general conduct of the officer applying; and in case of a greater number applying than could conveniently be spared at the one time, their comparative merits would also probably be taken into consideration. But this all rests upon the discretion of the Executive. The officer cannot be said to have a legal enforceable right to furlough, but he has a moral right to expect that faithful and meritorious service will be recognised in this amongst other ways referred to in the Act, in the absence of any public considerations to the contrary. Under these circumstances I cannot give any opinion or advice such as usually emanates from a law officer.

I think this single answer covers the whole of the questions specifically put.

[Vol. 5, p. 234]

* See also Opinion No. 414.