1889 77 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1889 Western Australian Industrial Gazette PUBLISHED BY AUTHORITY Sub-Part 2 WEDNESDAY, 27TH AUGUST, 1997 Vol. 77—Part 2 THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows:— 77 W.A.I.G. CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF THIS PUBLICATION INDUSTRIAL APPEAL COURT— Commissioner for Government Transport v Kesby (1972) 127 CLR 375 Appeal against decision of Commissioner of Superannuation v Carpenter (1983) 48 Full Bench— ALR 230 Federal Commissioner of Taxation v J Walter Thompson JURISDICTION : WESTERN AUSTRALIAN (Australia) Pty Ltd (1944) 69 CLR 227 INDUSTRIAL APPEAL COURT Mutual Acceptance Co Ltd v Federal Commissioner of CORAM : KENNEDY J (Presiding Judge) Taxation (1944) 69 CLR 389 ANDERSON J Re Shine; Ex parte Shine [1892] 1 QB 522 SCOTT J Vacher & Sons Ltd v London Society of Compositors HEARD : 1 MAY 1997 [1913] AC 107 Case(s) also cited— DELIVERED : 18 JUNE 1997 Australian Broadcasting Tribunal v Bond (1990) 170 CLR FILE NO/S : APPEAL IAC 2 of 1997 321 BETWEEN : THE TOTALISATOR AGENCY BOARD Australian Gas Light Co v Valuer-General (1940) 40 SR Appellant (NSW) 126 Avondale Motors (Parts) Pty Ltd v Federal Commissioner AND of Taxation (1971) 45 ALJR 280 EDITH FISHER Collector of Customs v Pozzolanic Enterprises Pty Ltd Respondent (1993) 115 ALR 1 JUDGMENT— Cowell Electric Supply Company Ltd v Collector of Cus- KENNEDY J: I would allow this appeal, set aside the deci- toms (1995) 127 ALR 257 sion of the Full Bench and, in lieu thereof, order that the appeal Re Earle’s Shipbuilding Co (1901) WN 78 from the Industrial Magistrate to the Full Bench be dismissed Finamore v Slater & Gordon (1994) 11 WAR 250 and I publish my reasons. Graham v Baker (1961) 106 CLR 340 ANDERSON J: I agree and publish my reasons. Greater London Council v Minister of Social Security SCOTT J: I also agree and I publish my reasons. [1971] 1 WLR 641 Catchwords— Hope v Bathhurst City Council (1980) 144 CLR 1 Industrial Relations (WA)—Award—Government Offic- Jones v Dunkel (1959) 101 CLR 298 ers Salaries and Conditions Award—Whether authorised Re Klein (1906) 22 TLR 664 agent of Totalisator Agency Board a person employed on the salaried staff of a public authority—“Salary” Life Insurance Co of Australia v Phillips (1955) 36 CLR 60 Representation: London County Council v Henry Boot & Sons Ltd [1959] Counsel: 1 WLR 1069 Appellant : Mr R L Le Miere QC May v O’Sullivan (1955) 92 CLR 654 Respondent : Mr B Di Girolami Metropolitan Water Sewerage and Drainage Board v Solicitors: Histon [1982] 2 NSWLR 720 Appellant : Freehill Hollingdale & Page Nette v Howarth (1935) 53 CLR 55 Respondent : Mallesons Stephen Jaques NSW Associated Blue-Metal Quarries Ltd v Federal Com- Case(s) referred to in judgment(s)— missioner of Taxation (1956) 94 CLR 509 Amalgamated Society of Engineers v Adelaide Steam- Pereira v Hotel Jayapuri Bhd [1986] 1 WLR 449 ship Co Ltd (1920) 28 CLR 129 Prior v Sherwood (1906) 3 CLR 1054 Broken Hill South Ltd v Commissioner of Taxation Protean (Holdings) Ltd v American Home Assurance Co (NSW) (1937) 56 CLR 337 [1985] VR 187 1890 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 77 W.A.I.G. Sutton v Attorney General (1923) 39 TLR 294 hours that the agency is open to the Terry Shields Pty Ltd v Chief Commissioner of Payroll public as authorised by the Board; plus Tax (NSW) (1989) 17 NSWLR 493 (b) An amount of one cent (1c) per bet on Union Bank of Australia v Puddy [1949] VLR 242 the net investments; plus Zanetti v Hill (1961) 108 CLR 433 (c) Commission on weekly turnover— KENNEDY J: I have had the benefit of reading in draft the Up to $6000 : 2.1/2% reasons about to be published by Anderson J, with which I am From $6,001 to $10,000 : 1.1/2% in agreement. Over $10,000 : 1% ” The remuneration to which the respondent was entitled was In light of an earlier decision of a Commissioner that the properly described in the agreement of 12 June 1970 as being respondent’s status under the Agency Agreement was that of “a commission”. That commission had three components: (i) an employee for the purposes of the Industrial Relations Act an opening fee at an hourly rate, according to the hours that the appellant did not seek to argue that the respondent was not the agency was open to the public as authorised by the Board; an employee. Therefore, notwithstanding what I would regard (ii) one cent per bet on the net investments; and (iii) commis- as definite contra-indications, we must take it that the rela- sion of specified percentages based on weekly turnover. tionship between the parties was that of employer and It is, in my view, unnecessary to go beyond the primary defi- employee. The only question we are to decide is, as I have nition of “salary” in A New Oxford English Dictionary, which said, whether the payments provided for in the agreement were is as follows: “Fixed payment made periodically to a person “salary”: the respondent will not be a “government officer” as compensation for regular work; now usually restricted to entitled to the benefits of the award unless she falls within the payments made for non-manual or non-mechanical work (as definition of “government officer” in s80C(1) of the Indus- opposed to wages)”. The concept of a fixed payment is central trial Relations Act 1979, that is a, “... person employed on the to the definition; but it is impossible to identify any fixed pay- salaried staff of a public authority”. ment in the respondent’s entitlement to remuneration under The present proceedings were commenced by complaints of her contract. breaches of the Award heard by Mr D J Reynolds SM, sitting It may be observed in passing that the various levels of re- as an Industrial Magistrate. His Worship decided that the re- muneration in the Government Officers’ Salaries and spondent’s entitlements under the agreement were not “salary”. Conditions Award are clearly salaries within the foregoing She was not therefore covered by the Award. His decision was definition, being specified “salaries per annum”, although pay- in the form of a determination upholding the appellant’s sub- able proportionately at regular intervals. mission at the conclusion of the respondent’s case that the I would allow this appeal, set aside the decision of the Full appellant had no case to answer on the complaints. That deci- Bench and in lieu thereof order that the appeal from the Indus- sion was taken on appeal to the Full Bench of the Industrial trial Magistrate be dismissed. Relations Commission and the Full Bench unanimously de- cided that (in the words of the President)— ANDERSON J: This case has taken a lengthy and rather tortuous path to this Court. However, what is now at issue is a “The learned industrial Magistrate should ... have found that short point: whether the respondent was employed “on the the appellant was, at all material times, on the ‘salaried staff salaried staff of” the Totalisator Agency Board. If she was, of a public authority’ and that she was paid a salary.” she was entitled to the benefits of the Government Officers’ In my opinion the payments provided for in the Agency Salaries and Conditions Award. Otherwise she was not cov- Agreement were not salary. ered by that Award. It is trite that words in legislation, including subordinate leg- The relationship between the respondent and the appellant islation such as an award, should be given their ordinary Board was reduced to writing in the form of an agreement meaning (ie, read in their natural sense) unless it appears from dated 12 June 1970 and styled “Agreement—Authorised the whole of the legislative instrument that they are to have Agent” whereby the respondent by cl 1, “... hereby authorises some qualified or extended meaning or some meaning differ- the Authorised Agent to conduct the said Agency ...” at premises ent from their ordinary meaning: Broken Hill South Ltd v in Vincent Street, Beverley. The agency was a Totalisator Commissioner of Taxation (1936-1937) 56 CLR 337 per Dixon Agency established by the appellant pursuant to its powers J at 371; Amalgamated Society of Engineers v Adelaide under the Totalisator Agency Board Betting Act 1960. Steamship Co Ltd (1920) 28 CLR 129 at 148-149. By cl 2 of the agreement the respondent bound herself to use There are many cases in which the meaning of “salary”, her best endeavours to carry on the agency and conduct it in “wage” and “income” are discussed. Invariably the discussion an proper, orderly and efficient manner and to “employ such has taken place in the context of particular legislation. Thus, number of persons as shall be necessary for the proper and for example, in Federal Commissioner of Taxation v J Walter efficient conduct” of the agency and to effect certain insurances Thompson (Australia) Pty Ltd (1944) 69 CLR 227 and Mu- including public risk, cash in transit, burglary and theft tual Acceptance Co Ltd v The Federal Commissioner of insurances. By cl 2(h) the respondent agreed to “Keep the said Taxation (1944) 69 CLR 389, the question was as to the mean- premises open for business on such days and during such hours ing of the word “wages” in the Pay-Roll Tax Assessment Act as are from time to time required or approved by the Board” (No 2) 1941 (Cth).