Gapes v Commercial Bank of Australia Ltd [1979] FCA 9; (1979) 38 FLR 415 (13 March 1979)

FEDERAL COURT OF AUSTRALIA

GAPES v. COMMERCIAL BANK OF AUSTRALIA LTD. (1979) 38 FLR 415
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA
INDUSTRIAL DIVISION
Northrop J.(1)

CATCHWORDS

Conciliation and Arbitration - Breach of award - Failure to pay for work done - Restrictive work ban - Refusal by employee to perform all duties - Legal relations between employer and employee - Contract of employment and award - Whether employee ready, willing and able - Actual performance of work - Variation of contract of employment - Award entitlement to salary - Onus of proof - Conciliation and Arbitration Act 1904 (Cth.), s. 119 - Bank Officials' (Federal) (1963) Award. The claimant attended his place of work but refused to perform some of his duties that his union had selected to be banned in pursuance of a wage campaign. The respondent permitted the claimant to attend and to perform the remainder of his duties but refused to pay the respondent for three days in which he applied selective work bans. The claimant commenced proceedings under s. 119 of the Conciliation and Arbitration Act 1904 by which a penalty was sought to be imposed upon the respondent for breaching the award by not paying the claimant his wages for work done in the course of his employment. Legal relations between the claimant and respondent are determined by (i) the contract of employment in part, and (ii) the award in part. At common law, in an action by an employee for damages for breach of his contract of employment, the employee must prove that he is ready, willing and able to perform his part of the contract. The award does not place a duty on the respondent to make payment of salary to the claimant where the claimant neither performs all his duties nor is ready and willing to perform all his duties. The onus of criminal standard is on the claimant to prove that the respondent has breached the award.

Held, that the claimant's refusal to perform selected, consequential parts of his employment constituted an attempt to dictate the terms upon which he would work. Accordingly the claimant was not ready and willing to perform his contract of employment and he had consequently failed to prove that the respondent had committed a breach of the award.

HEARING

Melbourne, November 30; 1979, March 13. 13:3:1979
E.A.H. Laurie Q.C. and H. Nathan, for the claimant.

M. Dowling, for the respondent.

Cur. adv. vult.

Solicitor for the claimant: Lachlan Riches.

Solicitors for the respondent: Moule, Hamilton & Derham.

S.G. COLLINS

DECISION

March 13.

The following judgment was delivered.
NORTHROP J. The claimant, Robert Leslie Gapes, is a member of the Australian

Bank Employees' Union of Australia (the A.B.E.U.), an organization of employees under the Conciliation and Arbitration Act 1904, as amended, (the Act). The respondent, the Commercial Bank of Australia Ltd., and the A.B.E.U. are parties to the Bank Officials' (Federal) (1963) Award, as varied, (the award). It follows that under the Act the provisions of the award are binding on the claimant and the respondent. At all relevant times the claimant was employed by the respondent at its Bairnsdale branch. Between 16th October, 1978, and 10th November, 1978, the claimant was relieving as an accountant at the Bairnsdale branch and accordingly was entitled to be paid salary calculated in accordance with cll. 6, 7, 12 and 26 of the award. On each of the days 31st October, 1978, 1st November, 1978, and 3rd November, 1978, the claimant attended at his place of employment but the respondent did not pay to him the sum of $142.37 being the amount of salary which the claimant would have received under the award if otherwise he was entitled to payment of salary for those three days. The claimant commenced these proceedings under s. 119 of the Act by which he is seeking that a penalty be imposed upon the respondent claiming that the respondent, in breach of the award . . . "failed to reimburse or pay the claimant for the work done by him during and in the course of his employment with" the respondent on the three days already mentioned. (at p416)

2. A dispute existed between the A.B.E.U. and the respondent relating to bank holidays. In the Melbourne metropolitan area officers employed by the respondent had the benefit of a paid holiday on Melbourne Show Day. In some country areas, officers of the respondent had the benefit of a paid holiday coinciding with a local show day, while in other country areas officers employed by the respondent did not have an equivalent holiday. The A.B.E.U. initiated a campaign seeking equal leave for all bank officers throughout Victoria. Officers employed at the Bairnsdale branch of the respondent did not get a holiday on Melbourne Show Day in September 1978 but the officers employed at that branch including the claimant did not work on Melbourne Show Day. They did not receive payment of salary for that day. Subsequently the A.B.E.U. decided to impose a restrictive work ban to be carried out by its members. The nature of the ban is best illustrated by setting out the text of a circular issued by the Victorian division of the A.B.E.U. and dated 23rd October, 1978, as follows:

"EQUAL HOLIDAYS CAMPAIGN (at p417)

3. "Branches will note from the A.B.E.U.-C.B.O.A. joint committee circular (23rd October, 1978) that the joint committee has decided to authorize the application of work bans as an escalation of this campaign. Additionally, each member union may apply such additional bans as it thinks necessary. This decision was reached after receiving overwhelming support from members for this line of action. Country members of A.B.E.U.are therefore instructed to: FROM WEDNESDAY 25TH OCTOBER, 1978, BAN COMPILATION AND SUBMISSION OF ALL INTERNAL RETURNS. BAN ALL COLLECTION OF BANK FEES AND CHARGES. BANS TO REMAIN IN FORCE UNTIL FURTHER NOTICE FROM JOINT COMMITTEE. (at p417)

4. "It has been the practice of banks in previous actions of this nature to request branches to advise who is observing the ban, and who is not. PLEASE BE AWARE THAT THIS ALSO IS A RETURN AND SHOULD NOT BE SUBMITTED. (at p417)

5. "The aim of this campaign is now to obtain equal leave for all bank employees on whatever basis possible." (at p417)

6. Acting pursuant to the instructions contained in the circular, the claimant, together with other officers employed at the Bairnsdale branch of the respondent, applied the ban on Thursday 26th October, Friday 27th October and Monday 30th October. On Monday 30th October a circular letter dated 27th October from the respondent's State manager, together with an attachment to the letter, was received at the Bairnsdale branch. The claimant saw and read this circular letter and attachment. The circular letter referred to the equal leave campaign being conducted by the A.B.E.U. and the Commonwealth Bank Officers Association and the terms of the contract of employment which had been entered into between the respondent and its officers. Included in the circular letter were the following paragraphs: (at p417)

7. "Staff are reminded that in terms of their contract of employment they are obliged to carry out such duties as are allotted to them. Those who refuse to do so are not entitled to be paid for the day in question or until such time as they are prepared to perform all duties as requested. (at p418)

8. "If after having given the issue full consideration staff opt to comply with the union directive, the consequences of refusal to carry out lawful obligations to the employer must be accepted. In this regard: (a) staff are not entitled to be paid for any period of time they are not prepared to carry out their full time duties. (b) salary adjustments are to be manually calculated and salary slips amended accordingly. (c) salary adjustment advice is to be promptly submitted at the end of the week (i.e. Friday) in order that group certificate records may be correspondingly adjusted." (at p418)

9. The procedures to be followed in relation to industrial action by members of staff of the respondent were set out in the attachment to the letter. The attachment had been first circulated some years previously at a time of the implementation of another industrial campaign by the A.B.E.U. Extracts from the attachment are set out as follows:

"REFUSAL BY STAFF TO PERFORM ALL OR PART OF DUTIES AS A RESULT OF INDUSTRIAL ACTION (at p418)

10. "It is recognized that any industrial action will involve many officers in a conflict of loyalty and the following instructions should not be interpreted as any form of coercion on the bank's part. The instructions are intended to remind staff of their legal obligations arising out of their contract of employment and of the bank's position, as employer, in the event of industrial action. Subject to any other instructions which may be issued by administration at such a time but having particularly in mind difficulties of communication which can then exist, these instructions must be deemed to then operate without further notice and any officer not observing them will be regarded as not carrying out a lawful instruction of the bank. (at p418)

11. "All officers are therefore to acquaint themselves with these instructions (managers, accountants and other supervisory staff are to facilitate this) as ignorance will not be an acceptable excuse. 1. Officers are required to perform all the duties normally allotted to them in the course of their daily work and any other duties which may be allotted to them in which they have received training or have had sufficient practical experience to enable them to carry out those duties. 2. Should officers participate in industrial action involving absence from work or refusal to perform all or any portion of the duties allotted to them in terms of (1) above, the following will apply: (a) Officers must inform their manager, departmental head, officer in charge or next available senior officer of their intention, or election, to participate in industrial action involving absence from work or refusal to perform all or any portion of their allotted duties in terms of (1) above. (b) In the event of any manager electing to participate in industrial action involving absence from work or refusal to carry out his duties and responsibilities, the State manager's office must be informed immediately such decision is taken by the manager. (c) Officers participating in the industrial action are not permitted to commence or recommence work until they agree to perform all of the duties allotted to them in terms of (1) above. (d) Officers are required to observe security precautions by: (i) handing over all cash, negotiable instruments, keys, confidential material etc., under their control to the manager or next most senior officer not participating in industrial action, or if this is not possible, (ii) locking up all such items under their control, ensuring that the premises are secured in the normal way if last to leave. (e) Officers who have refused to work or are refused permission to work or commence work under circumstances outlined above, are required to record the time of cessation of duty in the appropriate records and immediately leave the bank's premises. Under no circumstances are any attempts to be made by any other member of the bank's staff to forcibly eject officers who refuse to leave the bank's premises. (f) The manager, or in his absence the next available most senior officer, is to ensure that a full diary record is made of any officer's announcement that he refuses to perform, or any officer's election not to perform, all allotted duties. Also, the instructions issued to that officer in consequence and the resulting actions of the officer (e.g. refusal to leave the premises etc.) are to be recorded therein. (g) Should officers, having refused to perform all or any portion of the duties allotted to them in terms of (1) above, and as a result having been refused permission to work or commence work on any day, elect at any time to resume full duties, they will be permitted to sign on and commence work at that time. (h) The bank will exercise its right to refuse to pay remuneration for the full period during which duties in terms of (1) above are not performed. (i) In assessing the appropriate deduction from salary for the period described in (h) above, instructions outlined under "payment of salaries" are to be followed. 3. Officers who continue to perform portion only of their duties or in other ways fail to comply with any of the foregoing procedures and instructions are informed that such action or default on their part in no way negates the bank's rights to refuse permission to work and/or to make the appropriate deduction from salary." (at p419)

12. It is not necessary to set out the other matters contained in the attachment but they include a method by which salaries were to be adjusted in the event of industrial action, absence from work and refusal to perform any or all or portion of the duties allotted to an officer. (at p419)

13. On Monday 30th October at a meeting with the manager of the Bairnsdale branch, the claimant told the manager that he would continue to apply the instructions contained in the A.B.E.U. circular. The manager told him that in that event he would not be allowed to work at all. That evening, upon request, the claimant handed to the manager his keys to the bank and the combination to the bank safe. The claimant told the manager that he intended to attend at work on the following day to perform his normal duties apart from those subject to the ban. On Tuesday 31st October the officers of the Bairnsdale branch, other than the claimant, performed all duties allotted to them. The claimant attended for work at his normal starting time of 8.30 a.m. For the first half hour he sat at his desk but did not carry out any of his normal duties. He refused to leave the premises and maintained his attitude of refusing to perform those duties the subject of the ban. At about 9 a.m. he had a telephone conversation with an official of the A.B.E.U. About the same time the manager of the branch had a telephone conversation with a person at the office of the State manager of the respondent. A conversation took place between the claimant and the manager, the substance of which was reduced to writing by the manager and signed by the manager and the claimant as being a true report of the conversation. The report reads: "Interview, 9 a.m., 31st October, 1978. Again discussed work requirements with Mr. R. Gapes who after further reference to union, refused to leave the premises as requested and demanded to be allowed to work in terms of A.B.E.U. bans. He was informed that he may therefore resume duties, but in terms of S.M.L. 27th October, 1978 - State manager's circular letter 15/78, he would not be entitled to be paid as from now, for any period of time he was not prepared to carry out his complete allocated duties in full, as required by bank in terms of his employment." The manager then returned to the claimant his keys to the bank but not the combination to the safe. Apart from the duties the subject of the bans, the claimant carried out all his other duties on Tuesday 31st October, and Wednesday 1st November, but on the second day the combination to the safe was returned to the claimant. (at p420)

14. On the evidence the court finds that the duties not performed by the claimant were significant in the sense of not being trivial or of no substance. (at p420)

15. On the morning of Thursday 2nd November the claimant received his pay cheque for the previous fortnight. Although he received payment of salary for each of the days 26th, 27th and 30th October he received no payment of salary for the days 31st October or 1st November. On receipt of his pay cheque the claimant left his desk and journeyed to Melbourne to see the lawyer for the A.B.E.U. He makes no complaint about the non-payment of salary for that day. On Friday 3rd November the claimant again attended work and performed all his normal duties except those subject to the ban. On the following Monday the ban on work was lifted and on that day and thereafter the claimant performed all his allotted duties. On the following pay day he did not receive payment of salary for Friday 3rd November. (at p421)

16. By a memorandum of agreement entered into between the claimant and respondent and dated 12th October, 1971, the claimant agreed to perform all duties and tasks "which may devolve upon him or which any authorized officer may entrust to him or request him to perform". The duties which the claimant refused to perform on 31st October, 1st November and 3rd November were within the range of duties allotted to him under the memorandum of agreement and within the meaning of the terms set out in the attachment to the circular letter dated 27th October, 1978. (at p421)

17. Pursuant to the provisions of the Act, the respondent is bound to pay salary to the claimant, the amount of the salary being calculated in accordance with cll. 6, 7 and 26 of the award. Clause 12 of the award contains the following provisions:

"12. PAYMENT OF SALARIES

"(a) All salaries and allowances attached thereto shall be paid weekly or fortnightly at the option of and on the dates most convenient to the bank concerned. . . .

"(c) Notwithstanding anything elsewhere contained in this award the bank concerned shall be entitled to make a deduction from the salary of an employee in respect of every hour or part of an hour that such employee has been absent from duty without the consent of the bank during the period in respect of which the salary is paid. The amount of such deduction per hour or part thereof shall be calculated according to the following formula:

Annual Salary x 5 x 1
_______________________
261 x 1 x 40 " (at p421)

18. On these facts the issue raised by these proceedings is whether the respondent committed a breach of the award in that it failed to pay to the claimant salary which under the award it was bound to pay. (at p421)

19. Senior counsel for the claimant submitted that in the circumstances the respondent was not entitled to make any deduction from the salary due to the claimant, that the claimant performed some of his duties in accordance with the award during the whole of the three days, that the respondent, having permitted the claimant to perform those duties, had the benefit of the services so performed and had acquiesced in the action by the claimant and that the failure to pay him for the performance of those duties constituted a breach of the award. (at p421)

20. The existence of a contract of employment is the basis on which the Act, by means of an award, imposes obligations upon an employer. The position is stated clearly in the judgments in Amalgamated Collieries of Western Australia Ltd. v. True [1938] HCA 19; (1938) 59 CLR 417 . In that case the High Court had before it a State Act and the application of an award made under the State Act. The opinions expressed by the justices of the High Court apply with equal force to awards made under the Commonwealth Conciliation and Arbitration Act. Equally, the advice of the Privy Council that an appeal from the order made by the High Court should be allowed (True v. Amalgamated Collieries of Western Australia Ltd. (1940) AC 537 ) does not affect the statements of principle expressed in the High Court judgments. The Chief Justice of the High Court, Sir John Latham, said: "When any person is employed to do work to which an award applies, the parties are bound by a contract. Their legal relations are in part determined by the contract between them and in part by the award. The award governs their relations as to all matters with which it deals . . .

"But an award never deals with all the matters which affect the
relations of any particular employer and any particular
employee. The creation of the relation of employer and employee
depends upon an agreement between them and not upon any
award. Thus, the existence of the obligations under an award in
relation to a particular employer and employee always depends
on the existence of a contract between them. So, also, there are
terms of their relationship which do not depend upon any award.
For example, the employee must always obey the lawful orders of
his employer, but awards do not commonly include a term to that
effect. In my opinion, however, it is unnecessary in this case to
work out in detail the basis of the relations created by
employment under an award. For the purposes of this case it is
sufficient to refer to what was said in a unanimous judgment of
this court in Mallinson v. Scottish Australian Investment Co.
Ltd.
[1920] HCA 51; (1920) 28 CLR 66, at p 73
: 'Apart from the Act (The Commonwealth Conciliation
and Arbitration Act) the right to receive wages sprang from the
existence of the relationship of master and servant and the
performance of services therein, and notwithstanding the Act it is
still the existence of this relationship and the performance of
services therein which confers on the employee the right to
remuneration - all that the Act has done in this respect is to
substitute another method of determining the amount of
remuneration'"
(1938) 59 CLR, at pp 423-424
. (at p422)

21. At common law in an action by an employee for damages for breach of his contract of employment the employee must prove that he is ready, willing and able to perform his part of the contract: Australian National Airlines Commission v. Robinson (1977) VR 87 . In that case, an employee airline pilot, in support of an industrial campaign being conducted by the organization of which he was a member, was prepared to perform his duties under his contract of employment on condition that if the executive of his organization called a stoppage of up to twenty-four hours' duration within the next seven days, he would not perform his duties during the period specified by the executive. The employer refused to allow the pilot to perform his full duties on this condition and no other work was provided. The pilot received no pay for the period no work was provided, and he brought an action claiming that the employer wrongfully and in breach of his contract of employment failed to provide employment for him and claiming damages for breach of contract. The Full Court of the Supreme Court of Victoria (Young C.J., Menhennitt and Griffith JJ.) held that the pilot should not be regarded as having repudiated his contract of employment and that in any event the employer did not regard the contract as being discharged. The court held that in order to succeed the pilot had to prove that he was ready, willing and able to perform his contract of employment. In a joint judgment the court said: "In any action for breach of contract a plaintiff must prove that he is ready, willing and able to perform his part of the bargain and an allegation to that effect used to be pleaded: see Jefferson v. Paskell (1916) 1 KB 57, at p 74 . Now, however, such a pleading or averment is to be implied: see Supreme Court Rules, O. 19, r. 14, and Gates v. Jacobs (1920) 1 Ch 567 . The effect of the rule is that the defendant, if he contends that the plaintiff was not ready, willing or able to perform his part of the contract, must, as was done in this case, set out such allegation in his pleading. Otherwise it will be assumed that the plaintiff is ready, willing and able to perform the contract. But when a defendant does raise by his pleading a question whether the plaintiff in an action for breach of contract was ready or willing to perform the contract, the burden of proving readiness and willingness rests upon the plaintiff" (1977) VR, at p 91 . (at p423)

22. The court found that the pilot had failed to prove that he was ready and willing to perform his contract of employment and thus he was not entitled to damages: "The question whether a particular employee is ready and willing to perform his contract will often involve a question of degree. If an employee, on presenting himself for work at his place of employment, indicates to his employer by his words or actions that he is only willing to perform his duties under his contract of employment if another term is, in effect, added to the contract and that term is a significant one, there would be little difficulty in reaching a conclusion that the employee was not ready and willing to perform his obligations under the existing contract of employment. If, on the other hand, an employee were to tell his employer that the trade union to which he belonged was intending to strike on a date, say, two months hence, it would be impossible, we should think, to conclude from that statement alone that the employee was not at the time of the making of the statement ready and willing to perform his obligations under the contract. Between these two extremes there is clearly room for a wide variety of cases. The decision in a given case must depend upon all the circumstances, including the nature of the employment and the terms of the contract of employment" (1977) VR, at p 92 . (at p424)

23. The court continued: "In these circumstances the plaintiff failed to show in our opinion that he was ready and willing to perform his contract on Saturday, 23 November 1973. It is not decisive that no strike had by then been called. The plaintiff was, in effect, indicating that he was only ready and willing to perform his contract if a new term were added enabling him to stop work for up to twenty-four hours if instructed by the Executive of the Federation to do so . . . Accordingly, we think that the plaintiff's claim should fail" (1977) VR, at pp 93-94 . (at p424)

24. In the present case no party suggested that the contract of employment between the claimant and the respondent had been discharged by repudiation or otherwise. The claimant is not seeking damages for breach of his contract of employment. What is alleged is a breach of the award in failing to pay the claimant for work done in the course of his employment. In Australian National Airlines Commission v. Robinson (1977) VR 87 the court said:

"If, however, we had been of the opinion that the respondent had
established readiness and willingness to perform the contract, it
would have been necessary for us to consider the damages to
which he would have been entitled. It seems to have been
assumed in the Court below that the damages were equivalent to
the amount of the salary or wages lost. This may very well have
been correct but it should be noted that the action was not an
action for salary or wages. If it had been, it would have been
necessary to consider the terms of the contract of employment in
order to ascertain whether the consideration for the payment of
the salary or wages was the actual performance of the work or
the mere readiness and willingness to do so: see Automatic Fire
Sprinklers Pty. Ltd. v. Watson per Latham C.J., per Starke J. and
per Dixon J.
[1946] HCA 25; (1946) 72 CLR 435, at pp 450-452, 461-462, 463-466
"
(1977) VR, at p 96
. (at p424)

25. In the present case, it is not necessary to decide the question thus left unanswered since on any view, the claimant was not ready and willing to perform all his normal duties and in fact did not perform all his normal duties. Nevertheless, the nature of the problems involved in the question can be illustrated by a reference to some of the passages in the judgment of Dixon J. as he then was, in Automatic Fire Sprinklers Pty. Ltd. v. Watson (1946) 72 CLR 434 : "In certain forms of executory contract where the promise of one party is to pay the other money in consideration of his transferring property, of his doing work, of his serving the former as his master, and, perhaps, of his providing other tangible things or definite services, the money to be paid is regarded as the price of or reward for the property or service when and so often as the transfer of the one or the performance of the other affords an executed consideration. In these contracts the promise to pay the price or reward is not construed as a simple obligation to pay a sum or sums at a future date supported solely by a consideration consisting in the corresponding promise to transfer the property, do the work, serve, or provide the things or services by the other party, so that a mere readiness and willingness on the one side of the latter to perform his part is enough to entitle him to the payments, notwithstanding that, whether owing to the fault of the former, or without fault on either side, the property is not transferred, the work is not done, the relation of master and servant ceases, or the things or services are not provided" (1946) 72 CLR, at pp 463-464 . (at p425)

26. His Honour continued: "A contract for the establishment of the relation of master and servant falls into the same general category of agreements to pay in respect of the consideration when and so often as it is executed, and is, therefore, commonly understood as involving no liability for wages or salary unless earned by service, even though the failure to serve is a consequence of the master's wrongful act. (at p425)

27. "It is, of course, possible for the parties to make a contract for the payment of periodical sums by the master to the servant independently of his service. Indeed that is, in effect, what the Duke of Westminster persuaded the majority of the House of Lords he had done in Inland Revenue Commissioners v. Duke of Westminster (1936) AC 1 . But, to say the least, it is not usual. The common understanding of a contract of employment at wages or salary periodically payable is that it is the service that earns the remuneration and even a wrongful discharge from the service means that wages or salary cannot be earned however ready and willing the employee may be to serve and however much he stand by his contract and decline to treat it as discharged by breach" (1946) 72 CLR, at p 465 . (at p425)

28. His Honour said: "Some difficulty has been felt in saying what is the service which carries wages. The wages are incident to the subsisting relationship of master and servant. A master who sends his servant upon a holiday upon full pay can be sued for wages under the contract, although not on a common count for work and labour done. They also serve who only stand and wait. Difficulties, too, arise from the fact that a refusal to work on the part of a servant, who neither leaves his master's service nor is discharged, may disentitle him to wages for the period of the refusal. That is for non-fulfilment of the conditions by which wages are earned. But, broadly speaking, it is enough to say that wages are for service reasonably demanded under a subsisting relationship of master and servant. That relationship may be ended by the servant forsaking the master or the master discharging the servant, although the act of the one or of the other amounts to a breach of contract" (1946) 72 CLR, at p 466 . (at p426)

29. If the respondent, on being informed by the claimant that he would not perform all his duties to him, had refused to allow him to perform any of his normal duties and provided no other work for him, it is possible that the claimant would have failed to prove that he was ready and willing to perform his contract of employment. The attachment to the circular letter appears to be directed to that issue. In fact, the claimant did perform some of his duties but refused to perform all the duties lawfully allotted to him. In the present case, it is immaterial whether this refusal and his consequent failure to perform all duties allotted to him should be categorized as not being ready and willing to perform the contract of employment or as not amounting to actual performance of the work. (at p426)

30. In Electricity Commission of New South Wales v. Federated Engine Drivers' and Firemen's Association of Australasia (N.S.W.); Re Swieringa Unreported (Industrial Commission of New South Wales, Full Court, 2nd July, 1975 ). the court had to consider a case where an employee refused to carry out a lawful order given by his employer on the ground that the duties ordered to be performed came within a works ban imposed by his union. The employee stated that he was available for all other duties. He remained at his workplace but was not provided with work. The court said: "What then were, in our opinion, the legal consequences of the incident under review? Cases abound in this Commission and elsewhere which state categorically that in order to be entitled to payment of the wage which the terms of his employment prescribe, an employee must be ready and willing and able to perform in accordance with the lawful and reasonable directions of his employer the service for which he contracted, and that any failure on his part to do just that of itself, and so long as the failure continues, disentitles him to such payment. All that applied in this case. From the time when Mr. Swieringa refused to obey the direction we have mentioned and while that refusal continued - which was for the remainder of the shift - he disentitled himself to payment of wages. This disentitlement arose exclusively from his own action, and the non-payment of wages which followed was because of that disentitlement and not by reason of any other cause. In our opinion, the Electricity Commission was not obliged to pay Mr. Swieringa for any time of his rostered shift on Monday 17th February, 1975, after the time he first refused to carry out the duty required of him." (at p427)

31. It is necessary to decide then, whether on the facts of the present case, the claimant has proved that either he was ready and willing to perform his contract or that he performed his work pursuant to his contract. As was stated in Australian National Airlines Commission v. Robinson (1977) VR 87 this may involve a question of degree. The statement of the claimant that he would not perform certain duties was an attempt by him to vary the terms of his contract of employment. The phraseology used in Swieringa's case was "his statement to his supervisor that he was available for all other duties and that he was remaining on the job was an attempt by him to dictate the terms on which he would work; a right which he did not possess". If the attempted variation to the contract of employment related to insignificant duties in the sense of the duties being trivial or of no substance, the doctrine of de minimus may well apply but here the variation to duties were significant. They included the duties of filling in and forwarding forms relating to stamp duty returns, bank charges, bank depositors' accounts and general ledger balances. That these duties were significant is supported by the fact that the A.B.E.U. selected them to be the subject of the ban. (at p427)

32. Senior counsel for the claimant submitted that the respondent had accepted the variation to the terms of the contract of employment. He relied on the fact that the claimant was allowed to remain at his place of employment and to perform his other duties. In addition the respondent handed back to the claimant his key and the combination to the safe. Counsel submitted that this amounted to an acquiescence to the demands of the claimant and that in any event the respondent received the benefit of the duties performed by the claimant. (at p427)

33. In my opinion, the respondent did not agree to the variation of the terms of the contract of employment nor did it acquiesce in the demands of the claimant. The attachment to the circular letter stated that under no circumstances were any attempts to be made by other employees of the respondent to forcibly eject officers who refused to leave the premises, par. 2(e). Likewise par. 3 of the attachment stated clearly the intention of the respondent when an officer continued to perform portion only of his duties. In the conversation between the claimant and the branch manager on the morning of 31st October, the respondent stated clearly that the variation to the contract of employment were not accepted. In these circumstances the return of the keys and the combination do not constitute an acceptance of the demands by the claimant. A delicate situation existed. In support of a campaign to alter existing conditions of employment the claimant was attempting to dictate the terms upon which he would work. Neither party wanted the existing facts to be treated as a ground for dismissal of employment and the failure by the respondent to take that final step cannot be treated as an acceptance of a variation to the contract of employment. It follows that in my opinion the claimant has failed to prove that on the three days in question he was ready and willing to perform his contract of employment and has failed to prove that on those days he performed his contract of employment. (at p428)

34. Clause 6 of the award provides that an officer shall be paid the salary specified in the clause. Clause 7 makes similar provisions for specified classifications and because the claimant was relieving as an accountant, cl. 26 made the salary specified in cl. 7, the salary payable to the claimant. The award operates on a contract of employment. Under the contract of employment, the claimant is not entitled to payment of salary for those three days. Senior counsel for the claimant submitted that under cl. 12 of the award the respondent was required or bound to make payment of salary without any deduction and that in making the deduction of three days' salary the respondent had committed a breach of the award. (at p428)

35. Clauses 6 and 7 of the award prescribe an entitlement to an annual salary and impose a duty on the respondent to pay that salary, subject always to a contract of employment being in existence. Clause 12 (a) provides for the salary to be paid on a weekly or fornightly basis at the option of the respondent. Clause 12 (c) confers a privilege upon the respondent to make deductions when an employee is absent from duty without the consent of the bank during the period in respect of which the salary is paid. Clause 31, "salary deductions", confers a right on an employer to make deductions from salary for guarantee, provident or similar funds. The opening words of cl. 12 (c) enables an employer to exercise the power conferred by the sub-clause even when the award expressly binds the employer to pay salary without deductions. The power operates to relieve an employer from liability to pay salary to an employee which otherwise he would be required to pay. The award does not by express provision authorize an employer to make a deduction from salary where an employee is present at his place of duty but refuses to perform all his duties. In the present case, the amount of the salary not paid by the respondent was calculated in accordance with the formula set out under the heading "payment of balances" appearing in the attachment to the circular letter and which is the same formula as that set out in cl. 12 (a) of the award. Apparently the claimant makes no claim with respect to the deduction of salary referable to Thursday 2nd November being the day the claimant went to Melbourne and thus was absent from duty within the meaning of cl. 12 (c). (at p429)

36. Counsel for the respondent submitted that in cl. 12 (c) the phrase "absent from duty" applies to a case where an employee is present but is not prepared to carry out all his duties under his contract of employment. He relied upon Re Alice Alderson; Ex parte Jackson (1895) 1 QB 183 where Vaughan Williams J. held that in order to come within s. 4 of the Bankruptcy Act, 1883 (U.K.), which constituted an act of bankruptcy where a debtor, with certain intent, "absents himself", a debtor need not absent himself from any particular place by physical bodily absence. He relied also on Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Association (1945) 55 CAR 603 where Piper C.J. held that under a Waterside Workers' Award, employees were not entitled to payment of wages when they were in "attendance" but refused to perform their duties. (at p429)

37. These authorities are not of great assistance to the facts of the present case. There is no reason why the phrase "absent from duty" appearing in cl. 12 (c) should not be given its ordinary meaning as referring to physical bodily absence from duties. The award makes provision for payment of salary when the employee is not present at his place of duty and not performing his normal duties e.g. cl. 24, "annual leave", and cl. 24 (a) "sick leave". Clause 12 (c) does not confer a right on the employee, it confers a privilege upon an employer and the employer has a discretion to exercise that privilege or not as it so chooses. The award by conferring this privilege on the employer does not, by necessary implication, or by the application of the maxim, expressio unius exclusio alterius, confer a duty or obligation on the employer not to make a deduction of salary from an employee when the employee has no right to that salary. Under his contract of employment the claimant is not entitled to payment of salary for the three days he refused to carry out all his normal duties. The award by cll. 6, 7 and 26 does not confer a right on the claimant to payment of salary for those days, or rather, to be more accurate, the award does not place a duty on the respondent to make payment of salary to the claimant where the claimant neither performs all his duties nor is ready and willing to perform all his duties. Where an employee is absent from duty in the sense of not being present physically at the place where he should be performing his duty, and the employer makes deductions of payment of salary, it is relatively easy for the employer to establish that he has exercised the discretion conferred by cl. 12 (c). Where cl. 12 (c) does not apply, as in this case, the claimant must establish that the employer is bound by the award to pay the salary for the three days. This involves difficult questions of fact and of law. In the present case it involves the claimant establishing that under his contract of employment he was entitled to payment for those three days. Clauses 6, 7, 12 (a) and 26 of the award thereupon impose a duty on the respondent to pay to the claimant the salary determined in accordance with those clauses. The onus is on the claimant to prove that the respondent has committed a breach of the award. The criminal onus aplies, Vehicle Builders' Employees' Federation of Australia v. General Motors-Holdens Pty. Ltd. (23) but in the present case the result would be the same if the civil onus was applicable. (at p430)

38. In my opinion the claimant has failed to prove that the respondent was under a duty to pay salary to the claimant for the three days in question. It follows therefore, that in my opinion, the respondent has not committed a breach of the Bank Officials' (Federal) (1963) Award and accordingly the application is dismissed. (at p430)

ORDER

Application dismissed.