Commercial Bank of Australia Ltd v Gapes, Robert Leslie [1980] FCA 26

Respondent ORDER JUDGES MAKING ORDER: Smithers, Evatt and Deane JJ. DATE: 13 March 1980 WHERE MADE: Melbourne

That the respondent committed a breach of the terms of the Bank Officials (Federal) (1963) Award (as varied) by making a deduction in respect of 31 October and the 1st and 3rd days of November

CORAM: Smithers, Evatt and Deane JJ. 13 March 1980 REASONS FOR JUDGMENT

SMITHERS AND EVATT JJ.: We have had the advantage of

reading the reasons for judgment in this matter of our brother Deane J. We agree with his conclusion that on

the facts of this case, which are set out in his reasons, nothing had occurred which entitled the respondent to make

a deduction from the salary of the appellant in respect

of the three days during which he refused to perform

certain of his duties of his employment category. Accordingly

a Ne ee LEY %. PN SL AALSE SRR REARS nae A SAT TORS OEE I A PEE "Ng Dre mm

Deane J. to interpret the award in the way he did. We desire however to make the following observations because we are unable to satisfy ourselves that had the respondent rejected part performance of the duties of the appellant and excluded him from carrying out such part perfcrmance clause 12(c) of the award would have been applicable. This is because we feel that clause 12(c) is directed to circun-

stances where the absence of the employee 1s essentially

The learned trial Judge tock the view that because during the relevant period the employee was not ready and willing to perform certain significant items of his duties the obligation under the award to pay the salary therein provided for was modified to the extent that the employer was relieved from payment of a portion of the fortnightly instalment of annual salary payable under the award, the portion being calculated in respect of the days during which the employee was not ready and willing to perform

The obligation under the award to pay a salary depends upon its terms express or implied. If the terms of the award provide unconditicnally for the payment of a yearly

salary in stated proportions at stated times during the

continuance of the relevant relationship of employer and

employee, 1t is not to the point that at common law,

obligations to pay salary under a similar class of contract

to which no award was relevant, might have been regarded by

the law as conditional on a particular degree of work performance. Where there 1s an award applicable to a contract of employment

it is necessary to ascertain what the award does provide

expressly or impliedly about payment of remuneration.

When one looks at this award one finds save an clause 12(c) thereof no hint that non-performance of part of the duties of a particular category of employment will justify a reduction in salary. On the proper construction of the award the obligations created therein with respect to payment of salary do not depend upon actual performance of particular duties. Accordingly there being a state of employ- ment to which this award is applicable the obligation to pay salary as and when provided therein is not conditional on work performance. The obligation persists while the relevant state of employment exists. In this case the state of employ- ment in the relevant category was in existence at all relevant times because while the employee was performing duties appropriate to his classification, although not all of such duties, and the employer was accepting such performance, it could not be said that the relevant state of employment did not exist. The employee was not dismissed and he had not

Once there is a contract of employment of such a nature that the terms of an award are applicable to it, then, so far as the award speaks the terms of the award must be obeyed. Normally, as in this case, the terms of employment specifying for example, whether hourly, weekly or otherwise, and the payments to be made are prescribed in the award. The award may specify whether the employee's remuneration shall be earned hourly, weekly or otherwise and whether that remuneration 1s payable periodically as part of a salary in a particular classification of employment. In cases of the latter kind the obligation to pay salary as and when it is expressed to be payable could be made conditional on performance of all the duties of an employee in the relevant classification of employment or it may be created subject to no such condition. In this case it is impossible to find any factor by reference to which the obligation to pay salary, being expressed absolutely, may be construed as subject to an implication that the obligation to pay 18 conditional on the duties of

the employment being performed to some lesser or greater

This does not mean that breach of the promise of the employee to perform his duties is not a breach of contract with appropriate legal consequences. It only means that the breach does not touch the obligation under the award to make the specified payments of salary. The remedy will be in damages to be measured according to the loss suffered by the

employer as a result of the breach. That may be minor or

TET ET RT NE IRE A TEST AE TIE LITE ee LE OE I RTT Sarena

major according to circumstances. Where some or most duties

of an employment are performed and others are not 1t would

be an unusual case where the measure of damages suffered by

the employer equalled an amount calailated, for instance,

on the basis of the proportion to the total period of employment of the number of the days during which the employee's default continued. Deduction of a sum so calculated would normally

be inappropriate in the case of an employment on annual

salary payable periodically even where no award was involved.

reference is made to the observations of the Chief Justice

Sir John Latham in Amalgamated Colleries of W.A. Ltd. -v- True (1938) 59 C.L.R. 417 at pp. 423-424 in the following terms,

"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 exist- ence 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 relatixns created by employment

case 1t is sufficient to refer to what was said in a unanimous judgment of this court

1n Mallinson -v- Scottish Australian Invest- - ment Co. Ltd. (1920) 28 C.L.R. 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 not- withstanding 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, '"

But we do not think these observations of the Chief Justice throw doubt on our views expressed in these reasons. The problem in each case is to identify the topic with which the award deals and to ascertain what it says on that topic. It is the provision made by the award on that topic which governs. It is clear that one topic with which this award deals and therefore governs embraces the amount of salary, the times of payment of the components thereof, and the nature of the obligation to pay such components as and when specified in the award, namely whether that obligation is conditional or unconditional. Every obligation in the award is conditional on the exist- - ence of at least, a contract of employment. But once that condition is fulfilled the award operates and governs the obligations of the parties to the extent that it deals

In this case the award was operative throughout the period relevant to the issues in these yroceedings because there was in existence throughout that period a state of employment arising out of a contract of employment. The critical issue between the parties was therefore whether, according to the terms of the award properly construed, there was created an unconditional obligation to pay on the date specified for payment, the fortnightly component of salary falling due under the award ain respect of the fortnight during part of which the employce was in default in respect of performance of part of his duties. In our opinion the award properly construed did create an unconditional obligation to pay the fortnightly component

on the date provided in the award for payment thereof.

Whether when an employee refuses to perform a significant part of his duties and the cmployer rejects performance of the remaining part of the duties and excludes the employee from rendering such part performance, the state of employment upon which the relevant obligations under the award depend, has come to an end or is suspended is a question that does not arise here. Such a situation is in substance

that which existed in Australian National Airlines Commission

=v- Robinson (1977) V.R. 87. The decision in that case played a significant part in the judgment of the learned Judge. But in this case the employer did not reject part performance. Accordingly the state of employment upon which

the obligations of the award depended continued at all times.

Sartthereny eee' Aye Hen ou retain Mr Donte Civ coke ..

OM_APPrAL FIOM 2 SINGLE JUDGN OF THE CEPERAL counr OF AUSTRALIA

DEANE J: This is an appeal from a decision of Northrop J.

dismissing procecdinas brought by the appellant, Robert Leslie Gapes, against the respondent, Vhe Commercial Rank of Auctralia

Limited ("the Rank"), pursuant to s.1]% cf the Concitretian ce

Arbitration Act 1004 ("the Act") for ths amposition of a penalty

in respect of an "Tleyed breach or non-observance by the bank of

the Bank Offictat:s' (Federal) (1963) Aware® ("ihe Award"). The

alleged breach or non-observance of the Award was the failure of the Bank to pay to the appellant that part of his saJary which related to 31 October, 1978, 1 November, 1978 and 3 November, 1978. The appellant also secks, pursuant to s.119(3) of the Act,

an order that the Bank pay to him the amount of the aJleged

The appellant was, at relevant times, in his fifth year of adult service with the Bank. He was acting as accountant at the Bank's Bairnsdale (Vic.) Branch. His employment was governed by the terms of the Award which was binding on both the Rank and himself. On 31 October, 1978, 1 November, 1978 and 3 November, 1978 he refused to perform certain of the ordinary duties of the position of accountant in which he was acting. This refusal was in conformity with an industrial campaiqn which was being waged by the Australian Bank Employees' Union of which he was a member. The duties which he declined to perform were found by Northrop d. to be "significant in the sense of not heing trivial or of no substance". Otherwise, apart from a period of half an hour at the commencement of work on 31 October, 1978, he performed the ordinary duties of accountant at the Bairnsdale Branch on each of those three days. The Bank has refused to pay to the appellant so

much of his salary as is referable to the three days in question.

Under Clause 6 of the Award, the appellant, as an officer of the Bank in his fifth year of adult service, was

entitled to be paid a "salary per annum" of $9453. The appellant

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was also entitled to a special above award allowance of $175 per year. At relevant times he was entitled to be paid at the higher salary rate applicable to the position of accountant in which he was acting. For present purposes however, the important consideration is that the Award provided that the appellant was to be remunerated on the basis of an annual salary. Tt as not suggested by either party that the particular rate applicable at the relevant time will have any effect on the outcome cf the appeal apart from the quantification of any amount which the Rank might be ordered to pay to the appellant in the event that the appeal succeeds. It is common ground between the parties that, in that event, the amount which the Bank should be ordered to p*y to

Prima facie, the Award entitled the appellant, while he remained in the employ of the Bank, to be paid the annual salary appropriate to the capacity in which he was acting. The only express provision in the Award which could arguably be suagested, in the circumstances of the present matter, to absolve the Rank from the obligation to pay the appellant in respect of the relevant three days 1s to be found in Clause ~2(c) which entitles an employer Bank to make a deduction ia ascordance with a formula in respect of every hour or part of an hour that an employee "has been absent from duty without the consent of the Bank during the period in respect of which the salary is paid". Senior counsel for the Rank initially conceded that the provisions of that clause

were inapplicable to the circumstances of the relevant three days.

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wea net snd tw Naan nah aR S Resilient nt we iT ae ere Etihad ee a .

Subsequently however, that concession was, at least partially, withdrawn. I propose to deal with the appeal on the basis that the Bank relies, inter alia, upon the provisions of Clause 12(c) to justify its refusal to pay to the appellant his salary for the

The contract of employment between the appellant and the Bank was ain written form. It provided, in terms, that the appellant should "diligently 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 terms of the Award operated upon that contract in the sense that the Award governed the terms of employment which the contract, and not the Award, created. To the extent that there might be express or implied inconsistency between the terms cf the Award and the terms of the contract of employment, the terms of the Award prevailed. Otherwise, both appellant and Bank were bound by the terms of the contract between them. There was nothing in the Awartc inconsistent with the abovementioned provision of the contract of employment. In refusing to perform part of the ordinary duties which had devolved upon him, the appellant was in breach of the

If, when the appellant refused to perform a significant part of his duties, the Bank had simply directed him to refrain altogether from working in his job, I would have been of the view

that the appellant was not entitlcd to be paid his salary durang

eee erica "Os aera ier AD am nia aNd itr ctr i ah re An tel! Meh ata ow ale eh ot abet oe .

any period in which he was absent from his duties in accordance with that direction or in which he performed some of his duties in defiance of the Bank's continuing direction to abstain from working altogether. An employer is entitled to decline the services of an employee who refuses to perform significant parts of the job which he is employed to do, at least for so long as that refusal of the employee persists. The appellant would, in my view, have been "absent from duty" for the purposes of clause 12(c) of the Award during any period in which he refused to carry out a significant part of his duties and was, as a result, either excluded altogether from the performance of his duties or working in defiance of an instruction from the Bank to abstain from

In the present case, the Bank initially refused the appellant's services altogether by instructing him to leave the Bank's premises. When, however, the appellant declined to leave the premises, the evidence indicates that the Manager of the Bairnsdale Brancn had a telephone conversation with "head office" and that the Bank did not, thereafter, persist in its refusal to permit the appellant to work at all. The appellant was "informed that he may thereafter resume duties" but that, in terms of a Bark circular which he had seen, he would not be paid for the work which he did. His keys were returned to him and he was, subsequently, provided with the current comnination for the safe. In the light of the failure of the Bank either to call the Manager

of the Bairnsdale Branch or to explain the failure to call him, ic

tte a ta ben ahaa adh tinea nated ana usandimnecamumnal RE ET PN TE ET IT I MTOM TE eee Teas rs,

ete teoaits ADRRIALE. ack . Roa bbe torn ION Ee PUNO ee ek ee -! :

seems to me that the proper inferences to be drawn from all the evidence is that, in respect of the relevant period of three days, the Bank waived the direction that the appellant cease work altogether and that the appellant was performing the duties whicl he in fact performed for the Bank, with the consent of the Rank.

In these circumstances, the appcllant was not "absent fron duty

without the consent of the Bank," within Clause 12{c). In so far as the three days in question are concerned, the only applicable express provision of the Award was that a person in the position of the appellant is entitled to be paid an annual salary of the

In the view I take, the critical factors in the present case are that the appellant, being an employee of the Bank, actually worled in his job for the three days in question and that he so worked with the knowledge and consent of the Bank. The essential question is whether, in those circumstances, the express provision of the Award that the appellant is entitjJed to he paid a salary at a specified rate are to be qualified by an irplicaLlion that he is only so entitled while he remains ready, willing and

able to carry out in full the contract of employment between

himself and his employer. In my view, the terms of the Award

cannot properly be read as subject to any such implicetion.

It is, of course, true the an Award will ordinarily

Operate within the general context of the law of master and

servant. It is also true that many of the matters governing the

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relationship between a particular employer and a particuler

• employce will commonly be left by an Award to be dealt with bv the

perticular contract of service between thei. Where, however, an

Award contains a specific provision fer payment of an employre at an annual rate and spel]s ont in some detail the circumstances in

which deductions from that annual salary can properly be made, it

will not ordinarily be permissible for employer and emplovee to

emasculate the express terms of the Award entitling the employee

to payment by engrafting upon it provisions such as that the employee will only be entitled to such payment while he complies

with contractual conditions that he work honestly or diligently

: or, as suggested in the present case, while he 1s ready and willing to perform all the duties of his employment. Sach additional contractual provisions may not be inconsistent with the

provisions of the Award establishing entitlement to payment if the

effect of any breach of them is left to lie in contract. Such

inconsistency will, however, exist if the effect of the

purportedly added contractual oabligacion is to absolve the employer from his liability to pay to the employce, in respect of : a period in wh2ch, with his employer's informed consent, he is actually working for his employer, the salary which the Award

It should be noted that it is at least arguable that the

Award does not exhaustively specify all of the circumstances in which an employer Bank can be relieved from the liability to pay a

proportionate part of his salary to an employee withoucr

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unconsistenty with the pivotal provisions of the Award to be paid the salary which the Award specifies. The most ohvious example is the case where, in special circumstances, an employer Bank agrees that an employee should be given leave of ahsence without pay. It is possible that other examples can be given. Within the confines of such cases, it may well he that there is no inconsistency in an employer bank and an employee reaching particular agreement either in the overall contract of employment between them or on an ad hoc basis. There 1s however, no roow under the Award for an employer Bank and an employee to reach agreement between them that even though the employee is performing duties for the employer Bank of a type covered by the Award, he will not be entitled to be paid the salary for which the Award makes provision in the event that there are other duties which the employee is refusing to perform or by reference to a general attitude of the employee as not being ready, willing and able to perform his duties or not performing his duties diligently or honestly. The most that the employer Bank and an employee can do by arrangement between them in respect of those matters is to create a contractual obligation for which damages for breach of

In the result, I consider that the Bank's refusal to pay the appellant his salary in respect cf the relevant three days was in breach of the provisions of the Award by which the Bank and the appellant were both bound and rendered tne Rank liable to a

penalty pursuant to the provisions of s.119(3) of the Act.

It was agrecd by the parties that in the event of th> Court being of the view that the Tank was liable to a penalty, the appropriate penalty would be a nominal one. In the circunstancerc, I consider that the Pank should he ordered to pay a penalty of $25.00 10 consolidated revenue and to pay to the appellant tic amount of $142.37 representing his salary for the three deys in

Lccittly that this ad Uh true copy of the reasens 10)

His Henour Mr. Justice Deane / : / Vv so aay iae ASSOCIATE