Superannuation Commission v Frame - [2020] TASFC 5

[2020] TASFC 5

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Superannuation Commission v Frame [2020] TASFC 5

PARTIES:  THE SUPERANNUATION COMMISSION
  v
  FRAME, Glenn

FILE NO/:  FCA 2531/2019
DELIVERED ON:  23 June 2020
DELIVERED AT:  Hobart
HEARING DATE:  4 March 2020
JUDGMENT OF:  Blow CJ, Geason J, Marshall AJ

CATCHWORDS:

Industrial Law – Tasmania – Definitions and interpretation – "Salary" – Single payment after pay freeze.
Public Sector Superannuation Reform Regulations 2017 (Tas), reg 3.
Amcor v CFMEU [2005] HCA 10, 222 CLR 241; Brisbane Bears – Fitzroy Football Club Ltd v Commissioner of State Revenue [2017] QCA 223, 106 ATR 415, referred to.
Aust Dig Industrial Law [3379]

REPRESENTATION:

Counsel:
             Appellant:  M E O'Farrell SC
             Respondent:  B R McTaggart SC
Solicitors:
             Appellant:  Solicitor General
             Respondent:  Wallace Wilkinson Webster

Judgment Number: [2020] TASFC 5
Number of paragraphs: 95

Serial No 5/2020
File No FCA 2531/2019

THE SUPERANNUATION COMMISSION v GLENN FRAME

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
GEASON J
MARSHALL AJ
23 June 2020

Order of the Court

Appeal dismissed.

Serial No 5/2020
File No FCA 2531/2019

THE SUPERANNUATION COMMISSION v GLENN FRAME

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
23 June 2020

For the reasons stated by Marshall AJ, I would dismiss the appeal.

File No 2531/2019

SUPERANNUATION COMMISSION v GLENN FRAME

REASONS FOR JUDGMENT FULL COURT

GEASON J
23 June 2020

The issue in this appeal is whether a payment made to the respondent under the Police Officers 2018 Industrial Agreement (the agreement) was a payment of salary within the meaning of Regulation 3 of the Public Sector Superannuation Reform Regulations 2017 (the Regulations).
Estcourt J at first instance, held that it was. The majority in this appeal agree with him. I have a different opinion.

The facts

In February 2015, members of the Tasmania Police Service agreed to an 18 month pay pause. As a result, rates of pay to police officers were maintained at those set by the Police Award 2015 (the Award). Before the pause there had been no pay increase since 5 December 2013. After the pause, there was a wage increase on 1 July 2016, and a further increase on 1 July 2017.
In 2017 there were negotiations between Tasmania Police and the Police Association of Tasmania. As a result of those negotiations, agreement was reached for variations to the Police Award, including salary increases. The agreement included a provision for a payment to police officers employed as at 20 December 2017. The Tasmanian Industrial Commission (TIC) approved the agreement. The approval was given under s 55(4) of the Industrial Relations Act 1984. By s 58 of that Act it became binding on the parties and employees within its scope. It came into effect on 2 January 2018 and is in force until 31 December 2020.
The relevant parts of the agreement provide:
"3 DATE AND PERIOD OF OPERATION
This agreement will operate from the date this agreement is registered…

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: [2020] TASFC 5
Decision Date: 23 June 2020

CaseChat Overview and Summary

The Supreme Court of Tasmania, constituted by Blow CJ, Geason J, and Marshall AJ, considered a dispute between the Superannuation Commission and Mr Frame concerning the definition of "salary" under Tasmanian industrial law. The core of the disagreement revolved around a single payment made to Mr Frame after a period of pay freeze.

The central legal issue before the Court was whether this single payment, made after a period where no increases were applied to remuneration, constituted "salary" for the purposes of the relevant industrial award. This required the Court to interpret the meaning of "salary" in the context of the specific award and the circumstances surrounding the payment.

The Court reasoned that the payment, although made after a pay freeze, was a remuneration for services rendered and therefore fell within the ordinary meaning of "salary" as defined in the award. The fact that it was a single payment and occurred after a freeze did not alter its character as payment for work performed. The Court applied the principle that the plain meaning of the words in an industrial award should be given effect, unless there is a clear indication to the contrary.

Orders