Category Archives: Meaning of “salary”

Registered Clubs Association of NSW v Australian Liquor, Hospitality and Miscellaneous Workers’ Union, NSW Branch [2000] NSWIRComm 262

ON 14 DECEMBER 2000, the NSW Industrial Relations Commission delivered Registered Clubs Association of NSW v Australian Liquor, Hospitality and Miscellaneous Workers’ Union, NSW Branch [2000] NSWIRComm 262.

http://www.austlii.edu.au/au/cases/nsw/NSWIRComm/2000/262.html

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Nette v Howarth [1935] HCA 22

ON 3O APRIL 1935, the High Court of Australia delivered Nette v Howarth [1935] HCA 22; (1935) 53 CLR 55 (30 April 1935).

http://www.austlii.edu.au/au/cases/cth/HCA/1935/22.html

Per Evatt and McTiernan JJ:

“The word “pay” includes the remuneration granted to the holder of a rank or office in the case where he is relieved from the actual performance of the duties of the office. In this sense it includes the half-pay of a military officer. A characteristic of a payment which answers the description “pay” is that the payee receives it on account of the occupancy of some office, rank or employment.”

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Police Association of New South Wales v Commissioner of Police [2002] NSWIRComm 126

ON 20 DECEMBER 2002, the NSW Industrial Relations Commission delivered Police Association of New South Wales v Commissioner of Police [2002] NSWIRComm 126 (20 December 2002).

http://www.austlii.edu.au/au/cases/nsw/NSWIRComm/2002/126.html

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Rogan v Director General of Technical and Further Education (1987) 10 NSWLR 348

ON 5 AUGUST 1987, the NSW Court of Appeal delivered Rogan v Director General of Technical and Further Education (1987) 10 NSWLR 348.

Per McHugh JA at 350:

“The pay of an employee is a wider concept than that of the salary applicable to the office which the employee holds. It concerns every payment made to the employee in his character as an employee in respect of the performance of the duties of his office or position. The allowance in this case was aid to the employee in his capacity as an employee in respect of his duties performed by him on behalf of the employer. That is sufficient to make the allowance part of the ‘pay of the employee'”.

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Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720

ON 19 NOVEMBER 1982, the NSW Court of Appeal delivered Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720.

Per Hutley JA at 722:

“Though not every allowance is part of a salary, for example, a travelling allowance, it seems to me that an allowance for a skill which the employee possesses which gives him a differential over other who might be employed in the office is part of the salary paid to him in relation to the office held by him. If this is the correct interpretation of the works of s21(1)(f), the decision of the tribunal was wrong and it had no jurisdiction.”

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Kezich v Leighton Contractors Pty Ltd [1974] HCA 50

ON 22 OCTOBER 1974, the High Court of Australia delivered Kezich v Leighton Contractors Pty Ltd [1974] HCA 50; (1974) 131 CLR 362 (22 October 1974).

http://www.austlii.edu.au/au/cases/cth/HCA/1974/50.html

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Commissioner for Government Transport v Kesby [1972] HCA 64

ON 7 DECEMBER 1972, the High Court of Australia delivered Commissioner for Government Transport v Kesby [1972] HCA 64; (1972) 127 CLR 374 (7 December 1972).

http://www.austlii.edu.au/au/cases/cth/HCA/1972/64.html

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Bayley v Bayley [1921] 2 KB 227

On 29 March 1922, the Court of the King’s Bench delivered Bayley v Bayley [1921] 2 KB 227.

The court considered whether or not allowances and command pay, paid to a major in the army over and above regimental pay, were “pay” within the meaning of an award under a divorce settlement.

An arbitrator had awarded the defendant, Major Bayley, to make monthly payments to the plaintiff, Mrs Bayley, for a certain sum of money and that “should Major Bayley’s pay reach 400l. per annum he is to pay to Mrs. Bayley 10l. per month,….should Major Bayley’s pay reach 500l. per annum he is to pay Mrs Bayley 12l. per month, should Major Bayley’s pay exceed 500l. per annum these monthly payments are to be increased by 25 per cent. of the resulting excess over 500l. per annum.”

Pursuant to royal warrants issued under the prerogative of the crown, the defendant received “Regimental Pay and Additional Pay” of 16s per day as a major and “Command Pay” of 5s per day for being “in actual command of depots, of camps of instruction, of regiments or battalions, of detachments of regiments or corps, or of mixed bodies of troops”. Under separate regulations, the defendant also received allowances.

McCardie J held that the allowances were not considered to be pay within the meaning of the award (at 230).

McCardie J held that the Regimental Pay and the Command Pay was considered be pay within the meaning of the award (at 229).

With respect to the Command Pay, McCardie J found (at 231):

“In my opinion “command pay” is distinct in substance and fact from mere allowances. It is “pay” in the true sense. It is a definite financial remuneration for discharging the duties of a definite rank. I think that it falls within the fair meaning of the word “pay” as used in the award.”

His Honour considered the cases of Goodwin v Sheffield Corporation [1902] 1 KB 629 and Upperton v Ridley [1901] 1 KB 384. In Goodwin v Sheffield Corporation, free use of fuel, gas and water was not considered to be part of a police officer’s pay. Channell J said ‘pay’ is a technical word having a very technical meaning – that is, the amount fixed by the scale of pay”.

In Upperton v Ridley, a police officer had received 1s per day in addition to his ordinary pay to attend permanently on special duty at the House of Lords. It was held that the extra remuneration was not part of his “pay” for the calculation of his pension as “the police commissioners were under no obligation to pay the appellant the additional 7s a week while he was on special service, but that the payment was made partly as a recognition of good conduct and partly because, by being withdrawn from ordinary duty, the appellant to some extent lost his chance of promotion”.

After considering Goodwin and Upperton, McCardie said: “In the present case the defendant as a commanding officer became entitled to a definite, well-known and substantially permanent remuneration under the express provisions of the royal warrants” (at 232).

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Upperton v Ridley [1901] 1 QB

ON 15 JANUARY 1901, the English Court of Appeal delivered Upperton v Ridley [1901] 1 QB.

The court considered whether or not extra remuneration for a constable appointed to attend permanently on special duty at the House of Lords formed part of his “annual pay”, at the date of retirement, for the calculation of his pension.

It was held that the extra remuneration did not form part of the “pay” for the calculation of the pension because commissioners were under no obligation to pay the additional amount.

The decision supports the principle that “pay” does not include amounts that the employer is under no obligation to pay and that the worker has no right to recover.

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