Turfrey v Attorney-General (Tasmania)
[1992] TASSC 120
•13 October 1992
Serial B43/1992
List “B”
CITATION: Turfrey v Attorney-General (Tasmania) [1992] TASSC 120; B43/1992
PARTIES: TURFREY, Richard
v
ATTORNEY–GENERAL FOR THE STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NOS: 1146/1990
DELIVERED: 13 October 1992
HEARING DATES: 29 September 1992
JUDGMENT OF: Crawford J
CATCHWORDS:
Industrial Law—Tasmania—Entitlement of police officer under regulations to sick leave on "full pay" and "half pay"—Rostered shift allowances and penalty rates are to be included.
Police—Appointment, tenure and conditions of service—Entitlement to sick leave on "full pay" and "half pay"—Rostered shift allowances and penalty rates are to be included.
Police Regulations 1974, reg68.
Glover v Tip Top Bakeries (1984) 8 IR 308, considered.
REPRESENTATION:
Counsel:
Plaintiff: P Wood
Defendant: L Norris
Solicitors:
Plaintiff: Piggott Wood and Baker
Defendant: Director of Public Prosecutions
Judgment category classification:
Court Computer Code:
Judgment ID Number: B43/1992
Number of paragraphs: 22
Serial No B43/1992
List "B"
File No 1146/1990
RICHARD TURFREY v ATTORNEY–GENERAL FOR THE STATE OF TASMANIA
REASONS FOR JUDGMENT CRAWFORD J
13 October 1992
This action is to be determined upon the basis of the following facts which were agreed by the parties:
"1At all material times the plaintiff was a sergeant of police and a 'member of the force' within the meaning of that term in Regulation 2(1) of the Police Regulations 1974 (Statutory Rules 1974, No 274).
2At all material times the plaintiff was a shift–worker and whilst on duty was paid shift allowance and penalty rates.
3During the periods the 25th May, 1987 to the 5th August, 1987 inclusive and the 3rd May, 1988 to the 12th October, 1988 inclusive the plaintiff was absent from duty on leave of absence on account of sickness and entitled to full pay in accordance with Regulation 68 of the Police Regulations 1974.
4The plaintiff was absent from duty during the above periods as a result of an illness contracted otherwise than in the execution of his duty.
5During the above periods the plaintiff was paid by the Government of the State of Tasmania at his normal salary rate which did not take into account or include the shift allowance or penalty rates the plaintiff had been receiving whilst on duty and would have received during the above periods of leave of absence in accordance with his projected roster had he not been absent from duty.
6The plaintiff would have been paid by the Government of the State of Tasmania in addition to his normal salary, the sum of $5,230.90 for shift allowance and penalty rates if he had not been absent from duty and worked on his projected roster during the above periods."
By agreement I was given copies of the Police Award (regulating pay entitlements and some other conditions of employment) operative at the times of the plaintiff's absences from work. No other evidence was put before me.
The question which I must determine is whether the plaintiff was entitled while so absent from duty on account of sickness, to be paid only at his normal salary rate without inclusion of the shift allowance and penalty rates he would have received during the relevant periods in accordance with his projected roster had he not been absent from duty, or whether instead he was entitled to receive payment of an amount which included the shift allowance or penalty rates. The determination of this question depends on an interpretation of the Police Regulations 1974, reg68(1). It has not been amended since 1974 and is in the following terms:
"68–(1) A member of the force (other than a constable on probation or a junior constable, cadet, or special constable) is entitled to leave of absence on account of sickness –
(a) on full pay, for a period not exceeding 60 days in any one year; and
(b) on half pay, for a further period not exceeding 30 days in that year."
Following subregulations make provision for constables on probation, junior constables, cadets and special constables and prescribe entitlement to "leave of absence on account of sickness on full pay" for various periods. Subregulation (7) provides that the regulation does not apply to a member of the force whose absence from duty is the result of an illness or injury contracted or sustained in the execution of his duty.
Clause 8 of the Police Award in force at the time of the plaintiff's sick leave in 1987 and 1988 provided for the payment to a member of the police force an annual salary set primarily in accordance with the member's rank and years of service.
Clause 9 provided for the payment of "allowances", fixed as amounts per annum, in addition to the salary rates prescribed in cl8, to members who held certain positions or who held certain qualifications. Thus under amendments made to the Award in 1987, a member of the Bomb Disposal Squad was entitled to payment of $431 per annum in addition to his salary rate prescribed in cl8 and a detective sergeant was entitled to a detective allowance "for out–of–pocket expenses incurred as" a detective of $911. Other such allowances included for example a plain clothes allowance, a district allowance (for living in certain isolated areas) and a higher duty allowance.
Under cl10 hourly allowances (with provision for certain minimum payments) were prescribed for a member held on standby.
Under cl15 a member appointed to a one–man station was entitled to be paid in lieu of all overtime duty he might perform and in lieu of penalty payments in respect of shift work and work on a Saturday, Sunday or public holiday, an allowance while so employed in addition to his normal salary rate or the salary rate otherwise applying to him under that clause, calculated at an additional 27.5 per cent of that salary rate.
Payments for performance of overtime duty were prescribed in cl16 at, depending on the circumstances, one and a half, double or double and a half the "normal salary rate" (which expression meant the member's salary excluding all allowances), with a minimum payment for four hours at the appropriate overtime rate (except where otherwise specifically provided).
Recreation leave allowances were contained in cl17. Allowances for shift work were prescribed in cl20. A member rostered for an afternoon shift or night shift was usually entitled to be paid an allowance at the rate of 15 per cent of the member's "normal salary" (his salary excluding all allowances) for each shift so worked. However a rostered shift worker the major portions of whose shift fell on a Saturday, Sunday or public holiday, was entitled to be paid for all time so worked at rates of either one and a half or double his "normal salary" instead of the shift allowance which would otherwise have been payable.
Clause 23 provided for the payment of certain fixed allowances to members as compensation for a variety of expenses such as daily living away from home expenses, the expenses of travelling in a member's private motor vehicle, meal expenses and camp expenses.
From the statement of agreed facts it can be seen that the plaintiff was paid, while on sick leave, his "normal salary rate". What that means is not apparent, but nothing turns on it. Possibly it has the meaning given to "normal salary" in the award.
With the hope that guidance might be obtained I considered earlier regulations. The Police Regulations 1939, reg330 contained a similar provision for sixty days of "full pay" followed by thirty days of "half pay" for members of the force on sick leave. When those regulations were made they also provided for rates of pay which were fixed primarily on the basis of rank with some additional pay entitlements prescribed for certain numbers of years of service in a rank. None of the other allowances contained in the recent awards existed. There could not then have arisen the problem of interpretation which arises in this case. To some extent assistance can be gained from the 1939 regulations. The expression "full pay" under them meant the full pay the officer would have received if he had not been on sick leave. But of course that was the only possible interpretation under the regulations at the time. When the 1939 regulations were replaced by the Police Regulations 1958 virtually identical provisions for sick leave entitlement were made (reg56) and the same occurred with the making of the Police Regulations 1974.
At some time the provisions for rates of pay (but not sick leave entitlements) were removed from the regulations and pursuant to legislation came to be prescribed by awards. At one time the awards were made by the Public Service Tribunal pursuant to the Public Service Tribunal Act 1958. Today the awards are made by the Tasmanian Industrial Commission under the Industrial Relations Act 1984. Over the course of years the provisions for the pay entitlements of police officers (other than when on sick leave) were extended considerably so that by 1987 they encompassed in addition to the base rates in cl8 of the award then in force the various allowances in the other clauses to which I have made reference.
A number of courts have considered the expression "full pay" in the context of award entitlements to be paid while on annual leave and sick leave. For example, Operative Painters and Decorators' Union of Australia, Queensland Branch v Frahm (1950) 45 QJP 61, Australian Workers' Union v Mount Isa Mines Limited (1944) 38 QJP 26 and Sydney County Council v Campbell [1956] AR 621 were cases of annual leave. Glover v Tip Top Bakeries (1984) 8 IR 308 was a case of sick leave. But all of the cases were decided on the particular provisions of the awards which were being considered and some of them on special rules for interpreting industrial awards. Counsel for the plaintiff referred to Aylott v West Ham Corporation [1927] 1 Ch 30 and Sutton v Attorney–General (1923) 39 TLR 294, both of which cases considered the expression "full civil pay". In both it was considered that the expression should be given its natural meaning and to some extent they support the plaintiff.
The conclusion to which I have come is that the expression "full pay" must be interpreted by giving it its ordinary and natural meaning. That can be gained from the Shorter Oxford English Dictionary as "complete, entire, perfect; answering in every respect to a description" and "complete in number, quantity, magnitude or extent". If a member of the force was paid at certain rates and would have continued to be paid at the same rates if he was not absent on sick leave, an entitlement while on sick leave to "full pay" can in my view only have one meaning, and that is an entitlement to be paid the full amount to which he would have been entitled if he had not been ill. To pay the employee less than that to which he would otherwise have been entitled would in my view amount to payment of less than his "full pay".
Although the decision of Layton J of the Industrial Court of South Australia in Glover v Tip Top Bakeries (supra) cannot be directly applied to this case because of the particular provisions of the award there being considered, there are two passages in his judgment which can be applied to this case and I adopt them. They appear at 313. The first is in these terms:
"I will now turn to consider specifically the meaning of 'on full pay'. As can be seen from the cases involving interpretation of awards, it is important to look at the ordinary grammatical meaning of the words. The word 'full' is defined by The Oxford Concise English Dictionary, New ed 1982 at 398 as:
'... complete, entire, perfect, answering in every way to its name or description, reaching the specified or usual limit, entirely visible ...'
On that basis therefore without any specific regard to the award, it seems to me that the words used in their plain and ordinary meaning in the context of the word 'pay' would tend to indicate that payment should be at the usual and complete rate of pay."
The second is in these terms:
"For such an employee, it would seem quite anomalous if he was to be paid less than his usual entitlement by way of sick leave entitlement as though he worked on day work alone. If that were so, the award would effectively discriminate against shift workers in comparison with day workers in their respective entitlements to sick leave. The day workers would receive their usual pay whereas the shift workers would always receive less than their usual pay. Such an effect would in my opinion be inconsistent with the use of the word 'full' in the expression 'on full pay'."
Counsel referred to the provisions of reg66(4). Prior to 1976, and since at least as far back as 1939, there was no defined entitlement to payment while on leave from work through injury or illness if either was sustained or contracted in the execution of the member's duty. The Police Regulations 1939, reg330(2) provided that the Commissioner might grant "such leave with such pay as the Minister may approve". No such provision was made in the Police Regulations 1958 nor in the Police Regulations 1974 until an amendment was made by the Police Amendment Regulations 1976 with the insertion into reg66 of a new subreg(4):
"(4) A member of the force, a cadet, or an employee who, in the opinion of the Commissioner, is absent from duty as the result of an illness contracted, or an injury sustained, in the execution of his duty, shall be paid, in addition to his normal salary –
(a) shift allowance; and
(b) penalty rates for a Saturday, Sunday, or Public Service holiday, that he would have received in accordance with his projected roster had be not been absent from duty."
(The reference to "an employee" was removed in 1986).
I am not assisted by the provisions of that subregulation. If it had referred to an entitlement to full pay together with shift allowance and penalty rates it might have done so, subject to the vexing question whether the insertion of the subregulation two years after the making of reg68 could assist in interpreting "full pay" and "half pay". But no such reference was made. The conclusion I have come to in this regard is that reg66(4) and reg68 must be interpreted independently of each other, for there is no sensible way in which one can aid the interpretation of the other.
No assistance is to be found in the other provisions of the Police Regulations 1974. Regulation 55 deals with recreation leave and gives an entitlement to be paid salary and allowances (if any) in advance. Regulation 75 prescribes an entitlement to be paid "an amount equal to his normal salary and allowances" while on leave for defence purposes. Regulation 76 gives an entitlement to be paid only "an amount equal to his normal salary" for another type of leave connected with defence purposes. The terms used do not assist the interpretation of "full pay" and "half pay".
For these reasons there will be judgment for the plaintiff against the defendant for $5,230.90.
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