The Public Service Commissioner desires to be advised on the point raised in the following memorandum:

Under the Commonwealth Public Service Act 1915 (assented to 13th September 1915) provision is made for extra payment to officers of the Service who may be required for duty on public holidays, the conditions as to the specific holidays for which payment may be made and as to the basis of payment being set forth in section 9 of the Act. So far as the matter covered by this section is concerned, retrospective power is given by sub-section (c) enacting a new sub-section (6) of section 72 of the Principal Act.

Prior to the passage of this amending Act, the law provided only for the granting of time off duty in lieu of public holidays worked by officers; but under awards of the Commonwealth Arbitration Court the principle of granting compensatory payment instead of days off in lieu had been adopted in connection with plaints filed under the Arbitration (Public Service) Act of 1911. The awards of the Court in this respect, while following a general principle as to monetary compensation, differed considerably in the application of that principle, as will be seen from the following brief summary of the provisions contained in the awards.

Mechanics' award: Linesmen's award

The conditions in these awards are uniform and in precise agreement with Public Service law as amended by the Act recently passed. Officers called upon to perform duty on public holidays operating throughout the State are entitled to an extra day's pay (over and above ordinary salary) if a full day is worked, or a proportionate amount if less than a full day is worked, i.e. double pay is granted for the actual period of duty.

Letter carriers' award

Under this award, officers working on the specified public holidays are entitled to payment of not less than half a day's pay, and for any period worked beyond half a day, payment is made for the actual time of duty. Thus an officer working two hours is entitled to half a day's pay, while if he works five hours he is granted five hours' extra pay over and above his ordinary salary.

Sorters' award

Under this, the latest award issued, there is a further divergence from the methods laid down in earlier awards. Payment of at least half a day's pay must be made for duty on public holidays, and where the period of duty exceeds half a day, then payment is to be made for a full day, even although a full day has not been worked.

It will be observed, therefore, that under arbitration awards, three differing methods of calculating payment for holiday duty have been adopted, one of these agreeing with the amending Public Service Act just passed.

Under the provisions of the Arbitration (Public Service) Act 1911, awards of the Court must be laid before Parliament for a period of thirty days before such awards can have the force of law, and the President or Deputy President of the Court is required to report as to any provisions of the Public Service Act or Regulations with which the awards are in conflict. Parliament is therefore the final authority, and is empowered to allow or disallow any award made under the Arbitration (Public Service) Act.

The last award made by the Court in respect to the Public Service came into operation on 6th August last, while the amending Public Service Act was assented to on 13th September. Certain provisions of section 9 of this Act (as previously indicated) confer retrospective power in relation to payment for accrued days in lieu. It apparently follows that, so far as concerns any time worked on public holidays by, say, letter carriers prior to the date of operation of their award (1st July 1915) or by sorters prior to 6th August 1915, the amending Act is applicable in its retrospective provisions, and payment for such time (if worked on the specified holidays) may be made instead of granting days off in lieu.

The question arises, however, whether in respect of duty which will in future be performed on public holidays by officers affected by the awards mentioned the amending Public Service Act does not override the provisions of those awards by establishing a common rule for the whole Public Service of the Commonwealth. The latest pronouncement of Parliament on the subject is incorporated in the amending Act, and it would appear that the provisions of the awards (which awards possessed all the force of an Act of Parliament) have been superseded by the recent enactment. The matter is one of considerable importance as affecting the administration of the Public Service, and it seems to the Commissioner that the intention of Parliament to bring the whole Service under one general provision, by which duty performed on public holidays shall be compensated for in the manner indicated by the Act, is clearly defined.

In order that the matter may be placed beyond doubt, it is thought desirable that the opinion of the Crown Law authorities should be sought, and case is therefore submitted for favour of opinion.

The Commonwealth Public Service Act and the Regulations thereunder lay down the general rules to be followed in the administration of the Public Service, with reference to salaries, wages, rates of pay and terms and conditions of employment.

The Arbitration (Public Service) Act 1911 makes provision for the Arbitration Court to deal with these matters in a particular class of cases, viz. in relation to the members of a Public Service organisation registered under the Commonwealth Conciliation and Arbitration Act.

The Arbitration Court is not bound by the laws of the Commonwealth, but is given a free hand, subject to the determination being laid before Parliament; see Arbitration (Public Service) Act 1911, section 15.

It was clearly the intention of Parliament that the Arbitration Court should be given a free hand in dealing with the matters referred to it, and I do not think that an amendment of the main Public Service Act shows any intention on the part of Parliament to curtail that freedom.

The amendment of the Public Service Act which deals generally with the Public Service would not affect the Arbitration (Public Service) Act, which deals with a particular phase of the Public Service administration in the absence of a clearly expressed intention that the amending Public Service Act should apply to the Arbitration (Public Service) Act. I do not think that the mere fact that the amending Public Service Act is of a later date than the Arbitration (Public Service) Act shows such an intention.

In my opinion, the provisions of the Commonwealth Public Service Act relating to payment for work on public holidays do not apply to public servants to whom an award of the Arbitration Court applies, in so far as the provisions of that Act are not in accordance with the provisions of the award on that matter.

[Vol. 14, p. 387]