Commissioner for Railways (NSW) v McCulloch - [1946] HCA 27

THE COMMISSIONER FOR RAILWAYS (N.S.W.) APPELLANT

McCULLOCH AND OTHERS

RESPONDENTS. RESPONDENTS,

ON APPEAL FROM THE SUPREME COURT OF

bono'd 47 (N.S.W) SR256 Railways-Appeals Board-Jurisdiction-Officers-Promotion- War service-Rein-

statement-Seniority-" Conditions not less favourable Re-establishment and Employment Act 1945 (Cth.) (No. 11 of 1945), S. 16-Government Railways Act 1912-1945 (N.S.W.) (No. 30 of 1912-No. 12 of 1945), ss. 76, 86.

The Government Railways Act 1912-1945 (N.S.W.), S. 76, provides that vacancies in any branch of the railway service shall be filled, if possible, by promotion of an officer next in rank and that such an officer may be passed over only after the written reasons of the head officer of the branch have been put before both the Commissioner and a promotions committee. Any officer who has been passed over has a right of appeal to an Appeals Board (s. 86).

The Commonwealth Re-establishment and Employment Act 1945 provides that any person who has completed a period of war service may apply for reinstatement to his former employer (s. 12) who shall make employment available in accordance with S. 16 (s. 16 (1) ). Section 16 (3) (a) provides that employment shall be "in the occupation in which the applicant was employed immediately prior to the commencement of his period of war service and under conditions not less favourable to him than those which would have been applicable to him in that occupation if he had remained in the employ- ment of the former employer, including any increase of remuneration to which he would have become entitled if he had remained in that employment."

T. was employed by the Commissioner of Railways (N.S.W.). In 1940, he was given leave to absent himself from his employment in order that he might serve with the Australian Imperial Force, at a time when, in order of seniority, he was junior to five officers and senior to C. While T. was in the Forces,

72 CLR 142

C. was promoted to a position senior to the five officers, the provisions of S. 76 of the Government Railways Act 1912-1945 (N.S.W.) having been duly complied with. Later the other five officers were promoted to the same grade as C. In 1945, T. was discharged, and the Commissioner, purporting to act in pursuance of S. 16 of the Re-establishment and Employment Act 1945, reinstated him in the same grade as, but senior to, C. and consequently to the five officers, (N.S.W.)

who appealed to the Appeals Board.

Held, by Latham C.J., Dixon, McTiernan and Williams JJ. that the Re-establishment and Employment Act applies not only to those members of the Forces whose employment by their former employer was brought completely to an end, but also to those who, whilst members of the Forces, had their employer's leave to be absent from his employment.

Held, also, by Dixon, McTiernan and Williams JJ. (Latham C.J. and Starke J. dissenting) that, under S. 16 (3) (a), it was the duty of the Commissioner to form an opinion as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1946] HCA 27
Decision Date: 29 August 1946

CaseChat Overview and Summary

The Commissioner for Railways (NSW) appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned the reinstatement and seniority of A. V. Taylor, an employee who had taken leave to serve in the Australian Imperial Force. Upon Taylor's return, the Commissioner reinstated him in a position that granted him seniority over other officers who had been promoted during his absence. These officers appealed this decision to the Railways Appeals Board, and the Commissioner sought a writ of prohibition to prevent the Board from hearing the appeals, arguing it lacked jurisdiction.

The legal issues before the High Court were whether the Commonwealth *Re-establishment and Employment Act 1945* (Cth) applied to employees granted leave of absence for war service, and if so, what was the scope of the employer's obligation under section 16(3)(a) of that Act regarding the conditions of reinstatement, particularly concerning seniority. The court also had to determine whether the provisions of the *Government Railways Act 1912-1945* (NSW), which established a right of appeal to the Appeals Board, were inconsistent with the Commonwealth Act, and if so, which Act prevailed.

A majority of the High Court (Dixon, McTiernan, and Williams JJ.) held that the *Re-establishment and Employment Act 1945* applied to employees on leave for war service and that section 16(3)(a) imposed a duty on the employer to determine what seniority position the employee would have held had they remained in employment. They reasoned that this federal legislation, by its nature and purpose, superseded the jurisdiction of the state-based Appeals Board in matters of reinstatement and seniority for returning servicemen. The majority concluded that the Commissioner's actions in reinstating Taylor were taken pursuant to the federal Act, and therefore, the Appeals Board had no authority to review or interfere with those decisions. Latham C.J. and Starke J. dissented, finding that the federal Act did not override the state's appeal mechanisms and that the Appeals Board retained jurisdiction.

Consequently, the High Court, by majority, reversed the decision of the Supreme Court of New South Wales. The writ of prohibition was granted, preventing the Railways Appeals Board from hearing the appeals lodged by the respondent officers concerning Taylor's reinstatement and seniority.

Orders