Purcell v Electricity Commission (NSW) [1985] HCA 54

High Court of Australia Mason ACJ, Wilson, Brennan, Deane & Dawson J Purcell v Electricity Commission (NSW) [1985] HCA 54

Mason ACJ, Wilson, Brennan, Deane & Dawson JJ.

This appeal concerns the construction of certain provisions of s 60 of the Electricity Commission Act 1950 NSW as amended (the Act). The history of the matter which gives rise to the problem is conveniently set out in the judgment of Samuels JA from which we take the following brief conspectus.

The appellant commenced employment with the Sydney County Council in 1944. On 1 January 1952 the electricity generating functions previously undertaken by the Council were transferred to the Electricity Commission of New South Wales (Elcom). Section 59(1)(a) of the Act provided that on and after that date, certain employees of the Council would "become and be servants of the Commission". The appellant was one of those employees. In 1982 he was about to retire and there being a dispute about his entitlement to certain emoluments upon retirement he sought declarations from Hunt J concerning the construction of subss (3), (5) and (7) of s 60 of the Act. That section provides as follows:

60.

(1) This section shall apply to and in respect of every person referred to in subsection (1) of section 59, who becomes a servant of the Commission, and shall so apply to him on and after the date upon which he becomes such servant.

(2) The servant shall be paid salary or wages at a rate not less than the rate which is payable to him immediately before the commencement of this Act, subject to any adjustment necessary to give effect to any fluctuation in the needs basic wage as defined in the Industrial Arbitration Act, 1940, as amended by subsequent Acts, until such salary or wages is or are varied or altered by the Commission.