Peacock, Mortimer John v Commonwealth of Australia [1998] FCA 1297

FEDERAL COURT OF AUSTRALIA EMPLOYMENT LAW – Termination of employment – Alleged unlawful termination – Whether employment terminated at initiative of employer – Public servant retired pursuant to Public Service Act – Effect of provision permitting Secretary to determine provision is not to apply. Public Service Act 1922 – s 76V Industrial Relations Act 1988 – Div 3 of Part VIA MORTIMER JOHN PEACOCK V COMMONWEALTH OF AUSTRALIA NI 1934 of 1996 JUDGE: WILCOX J PLACE: SYDNEY DATE: 16 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI1934 of 1996

BETWEEN: MORTIMER john PEACOCK

Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: WILCOX J

DATE OF ORDER: 16 october 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for review of the decision of Judicial Registrar McIlwaine of 26 June 1998 made by the Commonwealth of Australia be allowed. 2. The orders made by the Judicial Registrar be set aside and, in lieu thereof, it be ordered the application under s 170EA of the Industrial Relations Act 1988 made by Mortimer John Peacock be dismissed. 3. Any moneys paid into Court by the Commonwealth of Australia pursuant to orders made on the application for stay of the Judicial Registrar's orders be paid out to its solicitors. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI1934 of 1996

BETWEEN: MORTIMER john PEACOCK

Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: WILCOX J

DATE: 16 october 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: This is an application by the Commonwealth of Australia for review of a decision of a Judicial Registrar, sitting in the Industrial Relations Court of Australia, in a claim by Mortimer John Peacock of unlawful termination of employment. The review turns on a point of law: whether a termination of employment of a public servant pursuant to s 76V of the Public Service Act 1922 is a termination of employment by an employer, so as to be cognizable under Division 3 of Part VIA of the Industrial Relations Act 1988, as the relevant statute then was. Section 76V of the Public Service Act relevantlyprovides: "76V(1) Subject to subsection (2), an officer shall, by force of this subsection, be retired from the Service upon attaining the maximum retiring age. (2) Where the relevant Secretary is of the opinion that it is desirable, in the interests of the Commonwealth, that an officer who has not attained the maximum retiring age should continue, after attaining that age, in employment, and the officer is able and willing so to continue, the relevant Secretary may determine, in writing, that subsection (1) does not apply to the officer. (3) The relevant Secretary may, at the time of making, or at any time after making, a determination under subsection (2) in respect of an officer, determine that the officer shall retire from the Service upon attaining a specified age or upon the expiration of a specified period and, where such a determination is made, the relevant Secretary may, at any time before the officer attains that age or before the expiration of the period so determined, vary the determination. (4) In this section: 'maximum retiring age', in relation to an officer, means: (a) if the officer is included in a class of officers in respect of whom a maximum retiring age, being an age less than 65 years, is fixed by the regulations – the age so fixed; or (a) in the case of any other officer – the age of 65 years;" It is common ground that, in relation to Mr Peacock, the "maximum retiring age" was 65 years.