Gapes v Commercial Bank of Australia Ltd [1979] FCA 19

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IN THE FEDERAL COURT OF AUSTRALIA CAV. \ e

INDUSTRIAL PIVISTON V No. 34 of 1978.

VICTORIA DISTRICT REGISTRY

BETWEEN:

ROBERT LESLIE GAPES Claimant

and

THE COMMERCIAL BANK OF AUSTRALIA LTD Respondent

CATCHWORDS

Industrial Law - breach of Award : failure to pay for work done - restrictive work ban - refusal by employee te 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 - acquiescence - Award entitlement to salary - deductions - "absent from duty" - onus of proof.

Conciliation and Arbitration Act 1904 Section 119 -

Bank Officials (Federal) (1963) Award.

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; cx IN THE: FEDERAL COURT_OF> AUST ALLA

INDUSTRIAL DIVISION - V No, 34 of 1978,

———— ————

VICTORIA DISTRICT: RUGTSTRY |

a ee a ne net enn ene,

BETWEEN;

\ROBERT: LESLIENGAPES Claimant ROBERT LESITENGA

and

~THE: 'COMMERCTAL" BANK OF AUSTRALIASLTD Respondent

~ ORDER JUDGE MAKING ORDER: Northrop J, DATE OF ORDER: 13th March, 1979 WHERE MADE; Melbourne ORDER: Application dismissed,

IN THE FEDERAL COURT OF AUSTRADTA

V No. 34 of 1978.

INDUSTRIAL DIVISION

VICTORIA DISTRICT REGISTRY

BETWEEN:

ROBERT LESLIE GAPRS . 'Claimant and THE COMMERCIAL BANK OF AUSTRALIA LTD. Respondent 'NORTHROP J. REASONS FOR JUDGMENT 13th March, 1979.

The claimant, Robert Leslie Gapes, is a member of the Australian Bank Employees Union of Australia (the A.B.E.U.),an organisation 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 16 October 1978 and 10 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 clauses 6,7,12 and 26 of the Award. On each of the days 31 October 1978, 1 November 1978 and 3 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