Opinion Number. 414

Subject

PUBLIC SERVANT WHETHER COMMONWEALTH LIABLE TO GRANT FURLOUGH

Key Legislation

COMMONWEALTH PUBLIC SERVICE ACT 1902-1909, ss. 71, 79

Date
Client
The Public Service Commissioner

The Public Service Commissioner has forwarded the following memorandum to me for opinion:

  • The Public Service Commissioner has the honour to submit the following statement for the consideration of the Attorney-General:
  1. Section 71 of the Commonwealth Public Service Act provides as follows:
  2. 'When an officer has continued in the Public Service at least twenty years, and has not been reduced for misconduct or deprived of leave of absence, the Governor-General may grant to him on the recommendation of the Commissioner leave of absence for a period not exceeding twelve months on half pay or six months on full pay; but for such period of absence such officer shall not be entitled to receive any addition to his rate of pay.'

  3. It will be recognised from the wording of the section that the granting of furlough rests with the Governor-General on the recommendation of the Commissioner and cannot be claimed by officers as an absolute right. This view has been endorsed by the Crown Law advisers.
  4. In the administration of the Public Service Act the conditions ordinarily observed have been that the privilege of furlough shall be dependent upon diligence, efficiency, and satisfactory conduct, and also upon the possibility of the officer being spared without inconvenience to public business. It has further been considered that officers who desire furlough in order to recuperate their health, and officers who are about to leave the Public Service on account of having reached the statutory age for retirement, should be given preference over other applicants for furlough.
  5. That the Commonwealth has not been illiberal in the granting of furlough will be recognised from a reference to the following summary:
  6. [ Table setting out number of officers granted furlough 1903-1910 omitted.]

  7. The question as to the procedure to be followed in connection with applications of officers for furlough was submitted to the Crown Law Authorities in April 1906, when Mr Attorney-General Isaacs advised(1)inter alia, as follows:
  8. '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.'

  9. Applications have been received from time to time for the granting of furlough to officers who have completed twenty years' service and who are voluntarily retiring in order to enter private business or to take up private pursuits. In such cases it has been pointed out by the Commissioner that furlough is discretionary, and not a vested right. It is essential to bear in mind that an officer continues in the Service until the period of furlough has expired, and therefore a breach of section 79 of the Public Service Act would be involved by entering into private business during the currency of the furlough.
  10. In a recent case, an officer 37 years of age, and who had just barely completed twenty years' service applied for six months' furlough on full pay, and intimated his intention of retiring at the expiration of furlough. The Commissioner advised the Department concerned that the request could not be entertained, it being noted that the officer immediately on severing his connection with the Service contemplated entering into business. In another case an officer who was 44 years of age and had a few months over twenty years' service, notified his Department that he was making arrangements to go on the land and applied for six months' furlough on full pay as a preliminary to retirement. A further instance occurred where an officer applied for furlough as a preliminary to retirement, and the Department reported it was well known that he intended taking up hotel-keeping, and the officer had himself admitted the fact. The furlough was not granted, and the officer continued on duty. In a recent case which came under notice, an officer obtained six months' furlough on full pay on the ground of ill health, but on commencing furlough he accepted employment with a business firm at a remuneration of £ 18 a month, thus drawing two salaries at the same time. He was suspended and charged under the provisions of the Public Service Act, pleaded guilty, and was removed from the Service. A Line Inspector tendered his resignation in August 1910 and asked that furlough be granted him. Resignation was accepted but furlough was not recommended as he had entered into business as a hotel-keeper. The officer claimed that he was legally entitled to furlough and threatened to institute proceedings to recover full salary up to February, 1911, the date of notification of acceptance of resignation. The whole of the cases mentioned are of officers who had not reached the statutory age for retirement, but were leaving the Service for private reasons.
  11. In order that applications may be dealt with on definitely settled principles, it is considered that the conditions governing furlough should be clearly laid down. In the opinion of the Commissioner, it was intended that furlough should be granted subject to the provisions of section 71, only where an officer wishes to recuperate his health after strenuous years of work, and is returning to give the Government the benefit of his renewed vigour, or where he intends to enlarge his usefulness and experience by travel and to resume his duties upon the expiration of the furlough, or where he is retiring or being retired from the Service on reaching the statutory age fixed for such retirement, or where his retirement is being effected through permanent incapacity to continue the discharge of his duties.
  12. Briefly summarised, the conditions requisite for consideration in the granting of furlough have been:
    1. that the furlough is required for purposes of leave of absence in the usual acceptation of the term, i.e. that it is applied for with a bona fide intention of returning to the Service on its expiration, or
    2. that the officer is retiring from the Service at the expiration of the furlough, such retirement being due to permanent incapacity for further performance of duties, certified by a Commonwealth Medical Officer, or to the fact that the statutory age for retirement will have been reached at the expiration of the furlough.
  13. The above are the conditions which now operate, and the opinion of the Attorney-General is desired as to whether an officer who is under the statutory age and retires from the Service has any legal right to claim six months' leave of absence on full pay, even if he has had twenty years' service, or whether the real intention of the provision in the law is not to meet the circumstances contemplated in paragraph 9 hereof.

The first question on which my opinion is asked is whether an officer who is under the statutory age and retires from the service has any legal right to claim six months' leave of absence on full pay.

This question I think is fully covered by the opinion of Mr Attorney-General Isaacs quoted(2)in the case.

I might add however that the section does not purport to give any right to any person but purports merely to confer a power.

The only right that in my opinion can be considered as being conferred by the section, is a right to an officer to make an application for furlough under the section. The right is of course not a legal right, and cannot therefore be legally enforced, but in the ordinary course of administration, every application which comes within the section should receive fair consideration.

The second question on which my opinion is desired is whether the real intention of the provision in the law is not to meet the circumstances contemplated in paragraph 9 of the memorandum.

I am of opinion that no intention can be inferred from the section as to the cases in which furlough should be granted, assuming that the applicants are eligible.

The position under the section, in my opinion, is that every officer who has continued in the Public Service at least twenty years and who has not been reduced for misconduct or deprived of leave of absence, is eligible for furlough, and that all officers coming within the section are legally equally eligible, and that where an officer makes an application for furlough and is eligible to receive it, it is for the Commissioner to consider whether the case is one in which he will recommend the granting of the furlough applied for, or not. The matter is left entirely to his discretion, subject of course to that discretion being evenly exercised and resting on reasonable grounds.

[Vol. 8, p. 422]

(1) Opinion No.240.

(2) See the concluding remarks of Mr Isaacs in Opinion No. 240 not including in the quotation.