Commissioner for Railways (NSW) v McCulloch [1946] HCA 27

F

APA. TR ALT bo.

LP hat [b75yfbo. GI) 3 ised, VC. 72 C.L.R.] OF AUSTRALIA. : 141 ford. Lf W3/ANSHLR 240,

(HIGH COURT OF AUSTRALIA.)

THE COMMISSIONER FOR RAILWAYS (N.S.W.) APPELLANT; APPLICANT,

AND

McCULLOCH AND OTHERS. s . ResponpEnts. RESPONDENTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Bowik bys) sR ast - F A ' . CAW.N. TI Railways—Appeals Board—Jurisdiction—Officers—Promotion— War service—Rein- Yt. C, of A.

statement—Seniority—" Conditions not less favourable" —Re-establishment and 946, Employment Act 1945 (Cth.) (No. 11 of 1945), s. 16—Government Railways Act = ~~ 1912-1945 (.S.W.) (No. 30 of 1912—No. 12 of 1945), ss. 76, 86. SypNeY, July 31;

The Government Railways Act 1912-1945 (N.S.W.), s. 76, provides that a i ug. 1.

vacancies in any branch of the railway service shall be filled, if possible, by = 4¥% ' Promotion of an officer next in rank and that such an officer may be passed Murnourne, over only after the written reasons of the head officer of the branch have been Aug. 29. put before both the Commissioner and a promotions committee. Any officer Teno

who has been passed over has a right of appeal to an Appeals Board (s. 86). Starke, Dixon, MeTiernan and

The Commonwealth Re-establishment and Employment Act 1945 provides Williams JJ. that any person who has completed a period of war service may apply for reinstatement to his former employer (s. 12) who shall make employment available in accordance with s. 16 (s. 16 (1)). Section 16 (3) (a) provides that employment shall be "in the occupation in which the applicant was employed immediately prior to the commencement of his period of war service and under conditions not less favourable to him than those which would have been applicable to him in that occupation if he had remained in the employ- ment of the former employer, including any increase of remuneration to which he would have become entitled if he had remained in that employment."