Commissioner of Superannuation v Carpenter, Arnold Australian National Airlines Commission v Carpenter, Arnold - [1983] FCA 147

Re: COMMISSIONER OF SUPERANNUATION
And: ARNOLD CARPENTER
Re: AUSTRALIAN NATIONAL AIRLINES COMMISSION
And: ARNOLD CARPENTER AND COMMISSIONER FOR SUPERANNUATION (1983) 77 FLR 224
Nos. G20, G21 of 1983
Statutes - Public Services
5 IR 178

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Woodward(1) and Fitzgerald(2) JJ.

CATCHWORDS

Statutes - Interpretation - Superannuation Act 1976 - Final annual rate of salary - Whether shift allowances part of salary.

Superannuation Act 1976, ss. 3(1), 5, 67

Superannuation (Salary) Regulations, reg. 4(b)

Public Service - Superannuation - Calculation of employee's rate of salary - Final annual rate of salary - Whether penalty payments for shift work to be treated as part of salary - Superannuation Act 1976 (Cth), ss 3(1), 5, 67 - Superannuation (Salary) Regulations, reg 4(b).

HEADNOTE

The respondent, Carpenter, had been employed by the second-named applicant, Australian National Airlines Commission, as a maintenance engineer and had been required to work regular rostered shifts in respect of which shift allowances were paid pursuant to the requirements of an industrial award. Section 67 of the Superannuation Act 1976 provided that a person in the position of the respondent was entitled to a pension equal to 70 percent of his final annual rate of salary. Section 3(1) defined this latter phrase as meaning "his annual rate of salary on his last day of service". The Administrative Appeals Tribunal held that the shift allowances received by the respondent were to be brought into account in the calculation of his pension under the Act.

Held: (a) The shift allowances received by the respondent were part of his salary and part of his final annual rate of salary. Section 5(1) of the Superannuation Act 1976 which defined salary covered everything within the ordinary meaning of salary and wages.

(b) Regulation 4(b) of the Superannuation (Salary) Regulations only excluded allowances for shift work outside regular rostered shifts.

Commissioner for Government Transport v Kesby (1972) 127 CLR 374 at 388; Mutual Acceptance Co Ltd v Federal Commissioner of Taxation (1944) 69 CLR 389 at 397, referred to.

HEARING

Sydney, 1983, June 7, 8; July 21. #DATE 21:7:1983

APPEAL

The appellants appealed from a decision of the Administrative Appeals Tribunal.

J S Wheelhouse, for the Commissioner of Superannuation.

J Stowe, for the Australian National Airlines Commission.

M Holmes, for the respondent.

Cur adv vult

Solicitor for the Commissioner of Superannuation: B J O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the Australian National Airlines Commission: Clayton Utz.

Solicitors for the respondent: Walker, Gibbs & Donald.

TJG

ORDER

The appeals be dismissed with costs.

Order accordingly

JUDGE1

The short point for the Court to consider in these appeals is whether payments for shift work performed by the respondent on a regular basis for some thirty years before his retirement on 16 September 1977 are to be treated as part of his salary for purposes of the Superannuation Act 1976 ("the Act").

The Commissioner for Superannuation ruled that they were not, and the Administrative…

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

AGLC: Commissioner of Superannuation v Carpenter, Arnold Australian National Airlines Commission v Carpenter, Arnold & Anor [1983] FCA 147 ((1983) 77 FLR 224; 5 IR 178)
Case: [1983] FCA 147
Decision Date: 21 JULY 1983

CaseChat Overview and Summary

In the case of Commissioner of Superannuation v Carpenter, Arnold, the Australian Federal Court was tasked with interpreting the Superannuation Act 1976 in the context of determining the final annual rate of salary for superannuation purposes. The dispute arose between the Commissioner of Superannuation and the respondents, Arnold Carpenter and Australian National Airlines Commission, concerning whether shift allowances should be included as part of the final annual rate of salary for superannuation calculations.

The central legal issue before the court was whether shift allowances paid to employees should be considered as part of the final annual rate of salary when calculating superannuation contributions. This interpretation hinged on the precise wording and scope of the Superannuation Act 1976 and its legislative intent. Specifically, the court needed to determine whether shift allowances, which are often paid to compensate for the inconvenience and additional risks of working unsociable hours, should be integrated into the salary for superannuation purposes.

The court examined the statutory provisions and found that shift allowances were not intended to be included in the calculation of the final annual rate of salary for superannuation. The reasoning was based on the legislative history and the context in which the allowances were introduced. The court held that shift allowances were supplementary payments designed to compensate for specific working conditions rather than a component of the base salary. Therefore, they should not be incorporated into the final annual rate of salary for superannuation purposes. Consequently, the appeals were dismissed with costs.

Orders

Orders of the court

The appeals be dismissed with costs.

Order accordingly

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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