Cosway v Commonwealth [1942] HCA 10

HIGH COURT [1942.

[HIGH COURT OF AUSTRALIA,]

COSWAY zi : ' ' i : 5 : PLAINTIFF ;

AND

THE COMMONWEALTH .. : i < . DEFENDANT.

H.C. or A. Public Service—State undertaking—Acquisition by Commonwealth—Agreement—

1942. ww

MELBOURNE, Mar. 10-12 ; May 29.

McTiernan J.

State employee—Employment by Commonwealth—Undertaking subsequently transferred to the State—Employee retained by Commonwealth—Reduction in status and remuneration—Rights—T he Constitution (63 & 64 Vict. c. 12), sec. 84 —Commonwealth Public Service Act 1902-1918 (No. 5 of 1902—No. 46 of 1918), secs. 34a (1), 60, 61—Commonwealth Public Service Act 1922-1939 (No. 21 of 1922—WNo. 72 of 1939), sec. 45.

In 1913 the plaintiff wes appointed to the Public Service of Victoria as a blacksmith foreman at the Williamstown dockyard, and he continued in that position at a salary of £204 per annum until the dockyard was acquired by purchase by the Commonwealth in 1918. As the result of negotiations between the State Government and the Commonwealth Government the plaintiff, by arrangement, and without any interruption of his work, resigned from the State Public Service and was thereupon appointed as a blacksmith foreman in the Commonwealth Public Service at a salary of £240 per annum. In 1920 his position, which continued to be that of blacksmith foreman, was raised to a higher grade and his salary was increased to a minimum of £252 and a maximum of £276 per annum. In December 1923 the rate of pay in Victoria for blacksmith foremen was fixed at £6 13s. 6d. per week. About September 1923 the Commonwealth Government decided to transfer the dockyard to the State and proposals were made for the retirement and compensation of such employees as were not taken over by the State. The plaintiff made known his desire to remain in the Commonwealth Public Service and he continued at his work at the dockyard. Efforts were made to find him a suitable position at his then rate of remuneration, and in March 1924, despite a strong protest on his part, he was appointed to another Commonwealth department as a blacksmith with, apparently, a reduction in salary, and the position formerly occupied by him was later abolished. Pursuant to an order made in September 1924 under sec. 20 of the Commonwealth Public Service